WHEN DOES THE ATTORNEY-CLIENT PRIVILEGE APPLY TO A WAIVER?
WHEN DOES THE ATTORNEY-CLIENT PRIVILEGE APPLY TO A WAIVER?
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WHEN DOES THE ATTORNEY-CLIENT PRIVILEGE APPLY TO A WAIVER?

| Mar 14, 2020 | Firm News

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Petitioner Christynne Lili Wrene Wood contacted the California Department of Fair Employment and Housing (DFEH) to report alleged gender discrimination by her Crunch fitness club, which is owned and operated by CFG Jamacha, LLC and John Romeo (collectively, Crunch). After an investigation, DFEH filed a lawsuit against Crunch alleging violations of the Unruh Civil Rights Act (Civ. Code, § 51) for unlawful discrimination on the basis of gender identity or expression. Wood intervened as a plaintiff in the lawsuit. During discovery, Crunch requested that Wood produce all communications with DFEH relating to Crunch.

As relevant here, Wood refused to produce one such communication, a prelitigation email she sent to DFEH lawyers regarding her DFEH complaint, on the grounds of attorney-client privilege. Crunch moved to compel production of the email, and the trial court granted the motion. Wood filed a petition for writ of mandate in this court. She argued that the trial court erred by overruling her objection based on the attorney-client privilege and compelling production of the email.

The California Court of Appeal summarily denied the petition. The California Supreme Court granted review and transferred the matter back to this court with directions “to vacate [our] order denying mandate and to issue an order directing the  superior court to show cause why the relief sought in the petition should not be granted.”

The California Court of Appeal issued the order to show cause as directed, and these proceedings followed. The California Court of Appeal conclude that Wood has not shown the attorney-client privilege applies to the email at issue. A prima facie showing of privilege requires that the communication be made in the course of an attorney-client relationship. (See Evid. Code, § 952; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (Costco).)

“The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . .’ The privilege ‘has been a hallmark of Anglo-American jurisprudence for almost 400 years.’ [Citation.] Its fundamental purpose ‘is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. [Citation.] . . . [¶] Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. As [the Supreme Court] has  stated: “The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.” [Citations.]’ [Citation.] ‘[T]he privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.’ ” (Costco, supra, 47 Cal.4th at p. 732.)

“The rule excluding the testimony of an attorney as to confidential communications made to him by his client must be strictly construed, as it has a tendency to suppress relevant facts that may be necessary for a just decision.” (Brunner v. Superior Court (1959) 51 Cal.2d 616, 618.) “The privilege is also to be strictly construed ‘where the [attorney-client] relationship is not clearly established.’ ” (Uber Technologies, Inc. v. Google LLC (2018) 27 Cal.App.5th 953, 967.) For purposes of the privilege, a “client” is “a person who . . . consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity . . . .” (Evid. Code, § 951.) A “confidential communication between client and lawyer,” which is protected by the privilege, is “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence . . . .” (Id., § 952.) The client is the holder of the privilege (id., § 953) and may prevent disclosure of a privileged communication by another person (id., § 954). “The statute treats the term ‘confidential communication between client and lawyer’ as one that requires further definition, and the definition it provides extends only to that information transmitted ‘in the course of [the attorney-client] relationship.’ (Evid. Code, § 952, italics added.)

The same definition also refers to ‘those who are  present to further the interest of the client in the consultation’ and ‘the accomplishment of the purpose for which the lawyer is consulted.’ (Ibid., italics added.) A similar focus is plain in related definitions of the Evidence Code. For example, the statute defines ‘client’ as someone who ‘consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.’ (Id., § 951.)

And a ‘confidential communication between client and lawyer,’ according to the statute, ‘includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.’ (Id., § 952.) These references cut against an understanding of the privilege in this context as encompassing every conceivable communication a client and attorney share, and instead link the privilege to communications that bear some relationship to the provision of legal consultation.” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 294-295 (Los Angeles County).)

Indeed, the statutes make clear that the privilege does not apply simply because a person discusses a legal matter with an attorney. “Significantly, a communication is not privileged, even though it may involve a legal matter, if it has no relation to any professional relationship of the attorney with the client. [Citation.] Moreover, it is not enough that the client seek advice from an attorney; such advice must be sought from the attorney ‘in his professional capacity.’ ([Evid. Code,] § 951.)” (People v. Gionis (1995) 9 Cal.4th 1196, 1210 (Gionis); accord, City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235 [“[O]nly communications made to an attorney in the course of professional employment are privileged.”]; League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 989.)

It is well-settled that a public entity enjoys an attorney-client relationship with its lawyers and the attorney-client privilege protects communications made in the course of that relationship. (See, e.g., Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371 (Roberts).) For example, “[a] city council needs freedom to confer with its lawyers confidentially in order to obtain adequate advice, just as does a private citizen who seeks legal counsel, even though the scope of confidential meetings is limited by this state’s public meeting requirements. [Citations.]

The public interest is served by the privilege because it permits local government agencies to seek advice that may prevent the agency from becoming embroiled in litigation, and it may permit the agency to avoid unnecessary controversy with various members of the public.” (Id. at pp. 380-381.) It is also well-settled that lawyers who prosecute actions, in an exercise of a public entity’s police power, occupy a unique position in this context.

For example, a district attorney “is not an ‘attorney’ who represents a ‘client’ as such. He is a public officer, under the direct supervision of the Attorney General [citation], who ‘represents the sovereign power of the people of the state, by whose authority and in whose name all prosecutions must be conducted.’ ” (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 122 (Shepherd).) “The prosecutor is a public official vested with considerable discretionary power to decide what crimes are to be charged and how they are to be prosecuted. [Citations.] In all his activities, his duties are conditioned by the fact that he ‘is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but  that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’ ” (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266 (Greer).)

“One of the reasons often cited for the institution of public prosecutions is that ‘Americans believed that an officer in a position of public trust could make decisions more impartially than could the victims of crimes or other private complainants,’ persons who often brought prosecutions under the older English system of criminal justice. [Citations.] This advantage of public prosecution is lost if those exercising the discretionary duties of the district attorney are subject to conflicting personal interests which might tend to compromise their impartiality. In short, the prosecuting attorney ‘ “is the representative of the public in whom is lodged a discretion which is not to be controlled by the courts, or by an interested individual.” ‘ ” (Greer, supra, 19 Cal.3d at p. 267.)

These principles, moreover, are not limited to criminal prosecutions. (People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 746 (Clancy).) “Indeed, it is a bedrock principle that a government attorney prosecuting a public action on behalf of the government must not be motivated solely by a desire to win a case, but instead owes a duty to the public to ensure that justice will be done.” (County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, 57.) “A fair prosecution and outcome in a proceeding brought in the name of the public is a matter of vital concern both for defendants and for the public, whose interests are represented by the government and to whom a duty is  owed to ensure that the judicial process remains fair and untainted by an improper motivation on the part of attorneys representing the government.” (Ibid.) For example, in actions by state and local agencies to establish paternity and for child support, as well as other similar actions, the person benefitted by the action does not enjoy an attorney-client relationship with the public entity lawyers prosecuting the action. “The statutory scheme empowers the district attorney [now local child support agency, see Fam. Code, § 17404] to establish, modify and enforce support obligations ‘in the name of the county on behalf of the child, children or caretaker parent.’ [Citation.]

The purpose of such actions is to provide a direct procedure for a county to recoup public assistance, and to assist parents with limited resources to enforce support obligations so that public funds are not again unnecessarily expended. [Citations.] Notwithstanding the collateral benefit to the custodial parent, the ‘client’ in such actions remains the county.” (Monterey County v. Cornejo (1991) 53 Cal.3d 1271, 1284, italics added (Monterey County); accord, Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297.) Family Code section 17406 is declarative of existing law, and it provides, “In all actions involving paternity or support, including, but not limited to, other proceedings under this code, and under Division 9 (commencing with Section 10000) of the Welfare and Institutions Code, the local child support agency and the Attorney General represent the public interest in establishing, modifying, and enforcing support obligations. No attorney-client relationship shall be deemed to have been created between the local child support agency or Attorney General and any person by virtue of the action of the local  child support agency or the Attorney General in carrying out these statutory duties.” (Fam. Code, § 17406, subd. (a).) I

DFEH lawyers have an attorney-client relationship with the State of California. Wood has not shown DFEH lawyers formed an attorney-client relationship with her. As such, any communications between Wood and DFEH lawyers were not made in the course of an attorney-client relationship and were not privileged. The California Court of Appeal therefore denied the petition.

See Wood v. Superior Court.

If you are discriminated against, damaged, or injured, you need a competent and tenacious attorney to recover all your injuries; contact the Law Office of Robert Rodriguez immediately! Call (209) 596-4263, or, (510)  736-4033!

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.

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