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ATTORNEY- CLIENT PRIVILEGE
CONTENTS

CASES

CASE OUTLINE





CONTENTS

PURPOSE OF PRIVILEGE
CONSTRUCTION
BURDEN OF PROOF

Foundational Facts: party must testify as to foundational facts
Preliminary Facts / Prima Facie 
Burden of Proof
Presumption of Confidentiality
Waivers & Exceptions
No in camera inspection to determine

ELEMENTS:
ATTORNEY - CLIENT RELATIONSHIP

Relationship

Preliminary communications
Subsequent communications
Payment of fees not determinative
Employment not required

Timing/Existence
Retention / Consultation
Dominant Purpose of Relationship

Lawyer

Jailhouse lawyer not covered
Acting in capacity of attorney
House Counsel
Law Corporations
Agents of Attorney

Client (see also Joint Client under Exceptions below)
[EC §951]is holder of privilege [EC 953]

Factors
Agents: communication via agent of either
Experts
Partnership (joint client exception)
Trust
Insurance Co/Insured
Guardian ad litem

Receiver  
Labor Union
Organizations and Associations
Homeowners Association
Corporation

Corporate spokesperson[Who speaks for the corporation ? ]
Closely held corp treated same as other corp
Formation

Holder of Privilege EC 952

Guardian ad litem
Successor in interest

COMMUNICATION [EC §952]

Facts not protected; communications protected
Confidentiality
Communication

Communications other than oral & written statements
Untransmitted or received communications
Fee Agreements protected
Communications w/ identifying information deleted
Existence of Attorney -Client relationship generally not protected
Client names normally not protected
Client names protected if reveal confidential information
Subject matter of communication not protected
Disclosure of subject matter not a waiver
Client records not protected

WHO MAY CLAIM PRIVILEGE

Holder
Person Authorized
Lawyer
Standing

WAIVERS [EC 912(a)]

Tender of Issue:

Advice of counsel defense
State of mind of attorney
Defense of adequacy of investigation
Issue of case tendered by holder
Scope of waiver limited

Refreshing recollection not a waiver
Voluntary Disclosure of significant part of communication [EC §912]

Procedures for resolving privileges etc. issues when documents disclosed e.g inadvertent disclosures, claw back
Third persons to whom disclosure permitted: [Ev C §952]
Inadvertent disclosure / Ethical duty of recipient
Failure to assert timely
Suppression of erroneously disclosed information

Technicalities resulting in injustice & sanctions disfavored
Waiver as to one attorney not waiver as to others

EXCEPTIONS

Limited to statute
Burden of Proof
Federal "Garner Rule" rejected
Crime - Fraud Exception
Joint Client Exception[Ev.C. §962]

Joint client

Factual & evidentiary issue
Partnerships
Close Corporations
Insurance Co./ Insured / Cumis Counsel
Trust

Waiver by all holders required
Communications made in the course of that relationship
Third party claims

Breach of Duty Exception
Deceased client exception

FORCED ELECTION
TRIAL IMPLICATIONS

STATUTES

Evidence Code Lawyer-Client Privilege

Definitions
950
.Lawyer As used in this article, "lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

951.Client As used in this article, "client" means a person who, directly or through an authorized representative, consults a lawyer for the
purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent
(a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.
952.Confidential Communication As used in this article, "confidential communication between client and lawyer" means information transmitted between a client
and
his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons
other than those who are present to further the interest of the client in the consultation or those
to whom disclosure is reasonably necessary for the transmission of
the information or the accomplishment of the purpose for which the
lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in
the course of that relationship.

953.
Holder of privilege As used in this article, "holder of the privilege" means:
(a) The client when he has no guardian or conservator.
(b) A guardian or conservator of the client when the client has a guardian or conservator.
(c) The personal representative of the client if the client is dead.
(d) A successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation,
or public entity that is no longer in
existence.


Claiming the Privilege
954. Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to
refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege
is claimed by:
(a) The holder of the privilege;
(b) A person who is authorized to claim the privilege by the holder of the privilege; or
(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there
is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure....

Lawyer Duty to Claim Privilege
955. The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he
is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.
Evid. Code §917. Presume communication is Confidential (a) Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a 
communication made in confidence in the course of the lawyer-client...the communication is presumed to have been made in confidence and the opponent of the
claim of privilege has the burden of proof to establish that the communication was not confidential.
(b) A communication between persons in a relationship listed in subdivision (a) does not lose its privileged character for the sole reason that it is communicated
by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the
communication.
Evid. Code §912 Waiver by Disclosure. (a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954
(lawyer-client privilege), ... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed
a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct
of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing
and opportunity to claim the privilege.
(b) Where two or more persons are joint holders of a privilege provided by Section 954 (lawyer-client privilege),...a waiver of the right of a particular joint
holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. ...
(c) A disclosure that is itself privileged is not a waiver of any privilege.
(d) A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), ...when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer...was consulted, is not a waiver of the privilege.
Evid Code 915 No In Camera Exam (a) ..., the presiding officer may not require disclosure of information claimed to be privileged under this division ... 
in order to rule on the claim of privilege; ...

Exceptions to Attorney-Client Privilege: Evidence Code Sections 956 et seq.

CASES

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377
A&M Records Inc v. Heilman (1977), 75 Cal.App.3d 554
Abbott v. Superior Court(1947), 78 Cal.App.2d 19
Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467
Aerojet General Corp. v. Transport Indemnity Ins.(1993), 18 Cal.App.4th 996
Alpha Beta Co. v. Superior Court(1984), 157 Cal.App.3d 818
American Airlines, Inc. v. Superior Court (DiMarco) (2003), 114 Cal. App. 4th 881
American Mutual Liab. Ins. Co. v. Superior Court(1974), 38 Cal.App.3d 579
B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240
Bank of America v. Superior Court (2013), 212 Cal.App.4th 1076
Benge v. Superior Court (1982),131 Cal.App.3d 336
Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181
Blue Ridge Ins.Co. v. Superior Court (1988) 202 Cal.App.3d 339
Bro-Tech Corp. v. Thermax, Inc.,2008 WL 724627 (E.D. Pa. 3/17/08)
Brunner v. Superior Court(1959), 51 Cal.2d 616
Carlson, Collins, Gordon & Bold v. Banducci(1967), 257 Cal.App.2d 212
Campaign v. Safeway Stores Inc. (1972), 29 Cal.App.3d 362
Cavanaugh Nailing Mach. Co. v. Cavanaugh (1959), 167 Cal.App.2d 657
City & County of San Francisco v. Superior Court(1951) 37 Cal.2d 227
Chicago Title Ins. Co. v. Superior Court (1985), 174 Cal.App.3d ll42
Chronicle Publishing Co. v. Superior Court(1960), 54 Cal.2d 548
Clark v. Superior Court (VeriSign, Inc.)
(2011), 196 Cal.App.4th 37
Collette v. Sarrasin (1920), 184 Cal. 283
Commodity Futures Trading Comm'n v. Weintraub (1985), 471 U.S. 343
Cooke v. Superior Court (1978), 83 Cal.App.3d 582
Cornish v. Superior Court(1989), 209 Cal.App.3d 467
Costco Wholesale Corp. v. Superior Court (Randall) (2009), 47 Cal.4th 725

Coy v. Superior Court(1962) 58 Cal.2d 210
D.I Chadbourne, Inc. v. Superior Court(1964), 60 Cal.2d 723
De Los Santos v. Superior Court (1980), 27 Cal.3d 677
Dickerson v. Superior Court(1982),135 Cal.App.3d 93
Doe 2 v. Superior Court (2005), 132 Cal.App.4th 1504, 1519
Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4Th 1263
Fletcher v. Superior Court
(1996), 44 Cal..App.4th 773
Geilim v. Superior Court(1991), 234 Cal.App.3d 166
Gene Compton's Inc. v. Superior Court (1962), 205 Cal.App.2d 365
General Dynamics Corporation v. Superior Court (1994), 7 Cal.4th 1164
Glacier General Assur. Co. v. Superior Court (1979), 95 Cal.App.3d 836
Glade v. Superior Court(1978), 76 Cal.App.3d 738
Goldstein v. Lees (1975), 46 Cal.App.3d 614
Gordon v. Superior Court
(1997), 55 Cal.App.4th 1546
Great American Surplus Lines Ins. v. Ace Oil Co. (E.D.Cal.1988), 120 F.R.D. 533
Greyhound v. Superior Court(1961), 56 Cal.2d 355
Grosslight v. Superior Court (1977), 72 Cal.App.3d 502
Hecht v. Superior Court (1987), 192 Cal.App.3d 560
Heffron v. Los Angeles Transit Lines (1959), 170 Cal.App.2d 709 
Hernandez  v. Superior Court (2003), 112 Cal.App.4th 285
HLC Properties, Ltd. v. Superior Court (2005),  35 Cal.4th 54, 24 Cal.Rptr.3d 199
Hoiles v. Superior Court(1984), 157 Cal.App.3d 1192
Holm v. Superior Court (1954), 42 Cal.2d 500
Holmes v. Petrovich Development Co., LLC
(2011) , 191Cal.App.4th 1047
Hooser v. Superior Court (2000), 84 Cal.App.4th 997
Insurance Co. of North America v. Superior Court (1980), 108 Cal.App.3d 758
International Insurance Co. v. Montrose Chemical Co.(1991), 231 Cal.App.3d 1367
Jessup v. Superior Court (1957), 151 Cal.App.2d 102,
Johnson v. Superior Court (1995), 38 Cal.App.4th 463
Jones v. Superior Court (1962) 58 Cal.2d 56
Jones v. Superior Court(1981), 119 Cal.App.3d 534
Kaiser Foundation Hospitals v. Superior Court (1998), 66 Cal.App.4th 1217
Kerner v. Superior Court (Widom) (2012), 206 Cal.App.4th 84
Kerns Construction Co. v. Superior Court(1968), 266 Cal.App.2d 405
Estate of Kime (1983), 144 Cal.App.3d 246
Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513
Lasky Haas et al v. Superior Court(1985), 172 Cal.App.3d 264
Lipton v. Superior Court (1966), 48 Cal.App.4th 1599
Lohman v. Superior Court(1978), 81 Cal. App.3d 90
Luhdorff v. Superior Court (1985), 166 Cal.App.3d 485
Martin v. Worker's Compensation Appeals Board(1997), 59 Cal.App.4th 333
Mass v. Municipal Court(19 ), 175 Cal.App.3d 601
McCain v. Phoenix Resources (1987), 185 Cal.App.3d 575
Ex parte McDonough(1915), 170 Cal. 230
Merritt v. Superior Court (1970), 9 Cal.App.3d 721
Miller v. Superior Court(1980), 111 Cal.App.3d 390
Miller, Morton Caillat & Nevis v. Superior Court(19 )169 Cal.App.3d 552 [Deleted per Supreme Court order dated December 19, 1985]
Mitchell v. Superior Court(1984), 37 Cal.3d 591
Mize v. Atcheson, Topeka & Santa Fe Ry.(1975) 46 Cal.App.3d 436
Moeller v. Superior Court (1997), 16 Cal.4th 1124
Montebello Rose Co. v. ALRB (1981), 119 Cal.App3d 1
Morales v. Superior Court (1979), 99 Cal.App.3d 307
Motown Record Corp. v. Superior Court (1984), 155 Cal.App.3d 482
Mowry v. Superior Court (1962), 202 Cal.App.2d 229
Mylan Laboratories Inc. v. Soon-Shiong (1999), 76 Cal.App.4th 71
National Football League Properties v. Superior Court (1998), 65Cal.App.4th 100
National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476
In re Navarro (1979), 93 Cal.App.3d 325
Newsom v. City of Oakland (1974), 37 Cal.App.3d 1050
Nowell v. Superior Court(1963), 223 Cal.App.2d 652
Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874
Owens v. Palos Verdes Monaco (1983), 142 Cal.App.3d 855
O'Mary v. Mitsubishi Electronics America Inc. (1997), 59 Cal.App.4th 563
Payless Drug Stores Inc. v. Superior Court(1976), 54 Cal.App.3d 988
Paley v. Superior Court(1955), 137 Cal.App.2d 450
People v. Canfield (1974), 12 Cal.3d 699
People v. Castiel(1957), 153 Cal.App.2d 653
People v. Clark (1990), 50 Cal.3d 583
People v. Cox (1968), 263 Cal.App.2d 176
People v. Dubrin (1965), 232 Cal.App.2d 674
People v. Gionis(1995), 9 Cal.4th 1196
People v. Gomez (1982), 134 Cal.App.3d 874
People v. Glen Arms Estate(1964), 230 Cal.App.2d 841
People v. Gray (4/28/ 2011), 194 Cal.App.4th 1133. 
People v. Kor (1954), 129 Cal. App2d 436
People v. Lee (1970), 3 Cal.App.3d 514, 527
People v. Lines (1975), 13 Cal.3d 500
People v. Perry(1972), 7 Cal.3d 756
People v. Poulin(1972), 27 Cal.App.3d 54
People v. Superior Court(Bauman & Rose)( ), 37 Cal.App.4th 1757
People v. Valasquez (1987), 192 Cal.App.3d 319
Raytheon v. Superior Court(1989), 208 Cal.App.3d 683
Rawnsley v. Superior Court(1986), 183 Cal.App.3d 86
Regents of the Univ. of California v. Superior Court (Aquila Merchant Services, Inc.) (2008), 165 Cal.App.4th 672
Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th
Rico v. Mitsubishi Motors Corp. (2007),  42 Cal.4th 807
Roberts v. City of Palmdale (1993), 5 Cal.4th 363
Rockwell Int.Corp. v. Superior Court (1994), 26 Cal.App.4th 1255
Rosso, Johnson, Rosso & Ebersold v. Superior Court(19 ), 191 Cal.App.3d 1514
Rumac Inc. v. Bottomley(1983), 143 Cal.App.3d 810
San Diego Prof. Assn. v. Superior Court (1962), 58 Cal.2d 194
Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386
Scottsdale Ins. Co. v. Superior Court (1997), 59 Cal.App.4th 263
Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529
Scull v. Superior Court(1988), 206 Cal.App.3d 784
Shannon v. Superior Court (1990) 217 Cal.App.3d 986,
Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans (2011) , 195 Cal. App. 4th 1275 Sierra Vista Hospital v. Superior Court(1967), 248 Cal.App.2d 359
Smith v. Laguna Sur Villas Community Assoc. (2000), 79 Cal.App.4th 639
Solin v. O'Melveny & Myers
(2001), 89 Cal.App.4th 451, 107 Cal.Rptr.2d 456
Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424
Southern California Gas Co. v. P.U.C.(1990), 50 Cal.3d 31
Standish v. Superior Court (1999), 71 Cal.App.4th 1130
State Compensation Insurance Fund v. Telanoff (1999),70 Cal.App.4th 644
State Farm Fire & Casualty Co. v. Superior Court(1997), 54 Cal.App.4th 625
State Farm Fire & Casualty Co. v. Superior Court (1988),206 Cal.App.3d 1428
State Farm Fire & Casualty Co. v. Superior Court(1989), 216 Cal.App.3d 1222
STI Outdoor v. Superior Court (Eller Media Co.) (2001) 91 Cal.App.4th 334
Suezaki v. Superior Court (1962), 58 Cal.2d 166, 178
Sullivan v. Superior Court(1972), 29 Cal.App.3d 64
Tekni-Plex, Inc. v. Meyner v. and Landis (1996), 89 N.Y.2d 123, 674 N.E.2d 663
Torres v. Superior Court(1990), 221 Cal.App.3d 181
Torres v. Superior Court(19 ), 50 Cal.App.3d 778
Transamerica Title Insur Co v. Superior Court(1987), 188 Cal.App.3d 1047
Travelers Ins. Co. v. Superior Court (1983), 143 Cal.App.3d 436
Triple A Machine Shop v. State (1982), 213 Cal.App.3d 131 143
UpJohn Co. v. United States (1981), 449 U.S. 383
Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96
Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766
Wellpoint Health Networks, Inc. v. Superior Court (1997), 59 Cal.App.4th 110
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 990 P.2d 591
Willis v. Superior Court(1980) 112 Cal.App.3d 277
Wilson v. Jefferson(1985), 163 Cal.App.3d 952
Wilson v. Superior Court (1957), 148 Cal.App.2d 433
Winegar v. Gray (1962), 204 Cal.App.2d 303
Wortham & Van Liew v. Superior Court(1987) 188 Cal.App.3d 927
Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.) (2007) , Cal.App.4th   [Oct. 11, 2007.]

CONTENTS

CASES

CASE OUTLINE

PURPOSE OF PRIVILEGE

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4Th 1263  ["[T]he fundamental purpose of the attorney-client privilege is the preservation of the confidential relationship between attorney and client [citation], and the primary harm in the discovery of privileged material is the disruption of that relationship . . . ." (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at pp. 740-741.)]

Schlumberger Limited, Petitioner v. Superior Court (1981), 115 Cal.App.3d 386, 171 Cal. Rptr. 413 “The attorney-client privilege is founded on public policy. As stated in City and County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 235 [231 P.2d 26, 25 A.L.R.2d 1418]: "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. Adequate legal representation in the ascertainment and enforcement of rights or the prosecution or defense of litigation compels a full disclosure of the facts by the client to his attorney."

Promote full & open discussion & complete disclosure
Assure right to counsel by protecting confidentially & allowing full disclosure, conferring and confiding

Mitchell v. Superior Court(1984), 37 Cal.3d 591, p.599
Southern California Gas CO v. P.U.C.(1990), 50 Cal.3d 31(1990),
Shannon v. Superior Court
(1990), 217 Cal.App.3d 986, 994
People v. Valazquez (1987), 192 Cal.App.3d 319 p.327
City & County of San Francisco v. Superior Court(1951), 37 Cal.2d 227
Holm v. Superior Court(1954), 42 Cal.2d 500
Suezaki v. Superior Court(1962),58 Cal.2d 166, 178
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377
Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51

See also re federal attorney client privilege  [note that California privileges are created and governed by statute while federal privilege are based on common law. Privileges vary from jurisdiction to jurisdiction and in some cases the privileges are signficantly different.]

UpJohn Co. v. United States (1981), 449 U.S. 383, 389
CONTENTS

CASES

TOP


CONSTRUCTION:

Absolute privilege

Costco Wholesale Corp. v. Superior Court (Randall) (2009), 47 Cal.4th 725, 732. ["We hold the attorney-client privilege attaches to Hensley's opinion letter in its entirety, irrespective of the letter's content. Further, Evidence Code section 915 prohibits disclosure of the information claimed to be privileged as a confidential communication between attorney and client "in order to rule on the claim of privilege."
"The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material. As we explained in Mitchell v. Superior Court, supra, 37 Cal.3d at page 600: "[T]he privilege covers the transmission of documents which are available to the public, and not merely information in the sole possession of the attorney or client. In this regard, it is the actual fact of the transmission which merits protection, since discovery of the transmission of specific public documents might very well reveal the transmitter's intended strategy." We therefore held in Mitchell that a client could not be questioned about warnings from her attorney about the health effects of an industrial chemical even if the warnings might be described as factual matter rather than legal advice. We observed: "Neither the statutes articulating the attorney-client privilege nor the cases which have interpreted it make any differentiation between 'factual' and 'legal' information." (Id. at p. 601; see In re Jordan (1974) 12 Cal.3d 575, 580 [finding the attorney-client privilege attached to copies of cases and law review articles transmitted by an attorney to the attorney's client].)

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003) 113 Cal. App. 4th 1377, 1387 ["[T]he [attorney-client] privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case." (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557.) "Although {Slip Opn. Page 12} 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. . . . '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.]" (Mitchell, supra, 37 Cal.3d at pp. 599-600.)"]

 Gordon v. Superior Court (1997), 55 Cal.App.4th 1546, 1557  [Special master must set a hearing on privilege claims after execution of a search warrant of a non-target attorney office. "Assuming the requisite relationship and confidential communication, the privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case. (Shannon v. Superior Court (1990) 217 Cal.App.3d 986, 995 [266 Cal.Rptr. 242].) The term "confidential communication" is broadly construed, and communications between a lawyer and his client are presumed confidential, with the burden on the party seeking disclosure to show otherwise. (Evid. Code, § 917; Estate of Kime (1983) 144 Cal.App.3d 246, 256 [193 Cal.Rptr. 718].)"]

Shannon v. Superior Court (1990), 217 Cal.App.3d 986,  p.995. "The applicable statutes clearly manifest the Legislature's intent that the privilege be absolute; the subject information is not discoverable under any circumstances. (Evid. Code, § 954.)"
"“We conclude the Legislature's unqualified protection of the privilege requires it be preserved, notwithstanding any contrary desire on the part of the court before which the receivership is pending or the parties to the action.
...the court is powerless to compel its waiver, irrespective of whether the disclosure would materially advance the interests of certain parties to the receivership or the efficiency of the proceedings.”
The recognition of a "necessity" exception to the privilege, as sought here by real parties, would be tantamount to the first step in the ultimate abolition of the privilege. At p. 997-998

Alternative

Strict
Liberal
Mixed: strict re existence of relationship; liberal re protection of relationship

People v. Valasquez(1987),192 Cal.App.3d 319, fn 4, p.327 [citing Benge & CCSF]

Elements, exceptions & waivers prescribed by statute

Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 p.475


BURDEN OF PROOF

Foundational Facts: party must testify as to foundational facts


Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [p.20 slip opinion: privilege log and conclusionary declarations from counsel failed to establish privilege or Common Interest Doctrine]

Doe 2 v. Superior Court (2005), 34 Cal.Rptr.3d 458 (2005), 132 Cal.App.4th 1504 Court held not abuse of discretion in overruling privilege objection.

"It is undisputed that Pastor Fernandez did not transmit the letter to an attorney. Indeed, she did not even copy the letter to an attorney. Rather, the letter was sent to Reverend Stewart.
"The church notes that Pastor Fernandez stated in her declaration that it was her "expectation, intention and belief that this July 22 correspondence would be passed onto [sic] the Bishop of the Annual Conference and to Attorney Jay Rosenlieb as the attorney for the Annual Conference and with whom this declarant and the Bishop's office had been jointly communicating concerning the issues surrounding Gary Carson Hull." However, Pastor Fernandez did not explain why she did not transmit the letter to Attorney Rosenlieb directly."

People v. Kor(1954), 129 Cal. App2d 436

State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th 625, p.640 [independent facts: time , date, place of occurrence]

"Nor does the attorney-client privilege protect independent facts related to a communication; that a communication took place, and the time, date and participants in the communication. [citing Coy v. Superior Court (1962) 58 Cal.2d 210, 219-220 ] In addition, the fact that an attorney has retained one or more independent agents to aid the attorney in connection with the litigation does not automatically qualify information discovered by the agents for protection by the privilege. [citing People v. Donovan (1962) 57 Cal.2d 346, 354-355.  People v. Cowan (1969) 1 Cal.App.3d 1001, 1004.  Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122, 125-126]


Scripps Health v. Superior Court (6/6/03) 4th Dist Div.1) [in house attorney declaration]

Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 C3d 31 [disclosure of such facts is not a waiver]

CASES

Preliminary Facts / Prima Facie

Costco Wholesale Corp. v. Superior Court (Randall) (2009), Cal.4th [No. S163335. Nov. 30, 2009.] The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.***That Costco engaged Hensley to provide it with legal advice and that the opinion letter was a communication between Costco's attorney (Hensley) and Costco are undisputed.***The undisputed facts, therefore, make out a prima facie claim of privilege.”

Clark v. Superior Court (VeriSign, Inc.) (2011), 196 Cal.App.4th 37.  Declaration re (1) ID parties to communication [one always in-house or outside attorney] and (2) general nature of the purpose of the communication (all of which involved obtaining legal advice on a variety of subjects) “....showing provided substantial evidence from which the court could have found each of the contested documents involved communications between a VeriSign employee and a VeriSign attorney in the course of an attorney-client relationship.


Bof P on party asserting Privilege 

D I Chadbourne Inc. v. Superior Court(1964), 60 Cal.2d 723 p. 739

Greyhound v Superior Court(1961), 56 Cal.2d 355

Costco Wholesale Corp. v. Superior Court (Randall) (2009), 47 Cal.4th 725, ["The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. (D. I. Chadbourne, Inc., at p. 729; Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123.]

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [p.20 slip opinion: privilege log and conclusionary declarations from counsel failed to establish privilege or Common Interest Doctrine]

Alpha Beta Co. v. Superior Court ( ), 157 Cal.App.3d 818.
Collette v. Sarrasin (1920), 184 Cal.283
Mizev. Atcheson, Topeka & Santa Fe Ry.(1975) 46 Cal.App.3d 436 p.447
People v. Glen Arms Estate(1964), 230 Cal.App.2d 841
Chronicle Publishing Co. v. Superior Court(1960), 54 Cal.2d 548
San Diego Prof.Assn. v. Superior Court (1962), 58 Cal.2d 194
Scripps Health v. Superior Court(2003),  109 Cal.App.4th 529 Incident report primarily for purpose of communication to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected.
Sierra Vista Hospital v. Superior Court(1967), 248 Cal.App.2d 359
Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424
State Farm Fire & Casualty Co. vs. Superior Court (1997), 54 Cal.App.4th 625

"When a party asserts the attorney-client privilege it is incumbent upon that party to prove the preliminary fact that a privilege exists. [citing Mahoney v. Superior Court (1983) 142 Cal.App.3d 937, 940.] Once the foundational facts have been presented, i.e., that a communication has been made "in confidence in the course of the lawyer-client ... relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential," or that an exception exists." [citing Evid. Code §917. BP Alaska Exploration, Inc. v. Superior Court, 199 Cal.App.3d at p. 1262.]

Kaiser Foundation Hospitals v. Superior Court (1998), 66 Cal.App.4th 1217 [must be sufficient facts in "privilege log"]
Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [the court suggested that once the prima facie showing is made re AC the BP shifts to show attorney not acting in attorney capacity]

Clark v. Superior Court 196 Cal.App.4th 37 ["...If lawyer performs multiple functions***  the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client...." p. 17 slip opinion.


Presumption of Confidentiality EC 917

Opponent of claim of privilege has Bof P to establish non-confidentiality

Gordon v. Superior Court (1997), 55 Cal.App.4th 1546,1557 ["The term "confidential communication" is broadly construed, and communications between a lawyer and his client are presumed confidential, with the burden on the party seeking disclosure to show otherwise. (Evid. Code, § 917; Estate of Kime (1983) 144 Cal.App.3d 246, 256 [193 Cal.Rptr. 718].)
Of course, some communications are not "confidential" and it may be that business checks payable to a client or others on the client's behalf are not privileged.]


Rumac Inc. v. Bottomley
(1983), 143 Cal.App.3d 810

Alpha Beta Co. v. Superior Court(1984), 157 Cal.App.3d 818
State Farm Fire & Casualty Co. v. Superior Court
Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529
Clark v. Superior Court (VeriSign, Inc.) (2011), 196 Cal.App.4th 37

CASES

Waivers & Exceptions: BP on proponent

Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 Cal.App.4th 

State Farm (1997) infra

Geilim v. Superior Court(1991), 234 Cal.App.3d 166 [citing Cooke (1978), 83 Cal.App.3d 582]

Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [Once prima facie showing of attorney, BP shifts to opponent to show by evidence attorney not acting as attorney; assertion in supp.memo insufficient]

Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217 [If attorney client communication on subject tendered as an issue, Bof P to show dominant purpose of specific communication.]

Shannon v. Superior Court (1990), 217 Cal.App.3d 986

Clark v. Superior Court (VeriSign, Inc.) (2011), 196 Cal.App.4th 37

No in camera inspection to determine if privileged [EC §915; note 2001 amendments to (a) & (b) re work product]

Clark v. Superior Court (2011), 196 Cal.App.4th 37 [Court cannot require examination of the content of the document to determine if the communication was made in the course of the attorney-client relationship. Decision used term "dominant purpose" to apply to the relationship of the communicants noting the privilege would not apply if the attorney were functioning as a claims adjuster, business advisor, business negotiator, trustee, etc rather than as an attorney]

Costco Wholesale Corp. v. Superior Court (Randall) (2009),  47 Cal.4th 725   [No. S163335. Nov. 30, 2009.]   No content of an attorney-client privileged communication is discoverable.  A confidential communication of legal advice from attorney to client is absolutely privileged in toto regardless of content and cannot be subject to partial disclosure of the communication or in camera review to determine the privilege issue. Inclusion of unprivileged facts in the confidential communication does not permit disclosure of any portion of the communication containing such unprivileged facts.  Cooke v. Superior Court (1978),  83 Cal.App.3d 582, 588 , 147 Cal.Rptr. 915 ["We turn then to the question of whether the trial court acted within its jurisdiction in finding that the eight documents now involved were privileged and confidential. As did the trial court, we must approach that issue without inspection of the documents themselves, under the compulsion of subdivision (a) of section 915 of the Evidence Code. (See Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 292-293 [67 Cal.Rptr. 568].)"]
"Insofar as inconsistent with our conclusion, we also disapprove 2,022 Ranch v. Superior Court, supra, 113 Cal.App.4th 1377, an insurance bad faith action. At issue were communications transmitted to the insurer from its in-house claims adjusters who also were attorneys. The insurer claimed all the communications were privileged, as involving legal advice emanating from its attorneys, whereas the petitioner asserted none were, as the attorneys were serving merely as claims adjusters. The Court ofAppeal distinguished communications reporting the results of factual investigations from those reflecting the rendering of legal advice, held only the latter were privileged, and ordered the trial court to review each of the communications to determine its dominant purpose. (Id. at p. 1397.) In this respect, the court erred. The proper procedure would have been for the trial court first to determine the dominant purpose of the relationship between the insurance company and its in-house attorneys, i.e., was it one of attorney-client or one of claims adjuster-insurance corporation (as some of the evidence suggested, see id. at pp. 1385, 1397-1398). The corporation, having the burden of establishing the preliminary fact that the communications were made during the course of an attorney-client relationship (D. I. Chadbourne, Inc. v. Superior Court, supra, "60 Cal.2d at p. 729), was free to request an in camera review of the communications to aid the trial court in making that determination, but the trial court could not order disclosure of the information over the corporation's objection. If the trial court determined the communications were {Slip Opn. Page 16} made during the course of an attorney-client relationship, the communications, including any reports of factual material, would be privileged, even though the factual material might be discoverable by some other means. If the trial court instead concluded that the dominant purpose of the relationship was not that of attorney and client, the communications would not be subject to the attorney-client privilege and therefore would be generally discoverable. However, even then, the corporation would be entitled to request an in camera review of a particular communication to support a claim that it should be protected despite the general absence of an attorney-client relationship."

Southern California Gas Co. v. P.U.C.(1990), 50 Cal.3d 31, p.45 fn 19

Lipton v. Superior Court (1996), 48 Cal.App.4th 1599

Cf.Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [court cites Montebello Rose where in camera of claimed AC documents was conducted and suggests in camera review to determine "dominant purpose" of doc. when attorney allegedly acts in dual capacity; determination should be made on the basis of the "subject matter of each document"; the court suggested that once the prima facie showing is made re AC the BP shifts to show attorney not acting in attorney capacity]

Moeller v. Superior Court (1997), 16 Cal.4th 1124, 1135 [dictum citing dictum in Cornish v. Superior Court(1989), 209 Cal.App.3d 467, 480 re in camera disclosure to determine existence of relationship or exception. "]

Cornish v. Superior Court(1989), 209 Cal.App.3d 467, 480 dictum  "The rule [prohibiting in camera inspection] is based on the notion that when there is a claim of attorney-client privilege, for example, it is neither customary nor necessary to review the contents of the communication in order to determine whether the privilege applies as the court's factual determination does not involve the nature of the communications or the effect of disclosure but rather the existence of the relationship at the time the communication was made, the intent of the client and whether the communication emanates from the client. (People ex rel. Dept. of Public Works v. Glen Arms Estate, Inc. (1964) 230 Cal.App.2d 841, 846-847, fn. 1 [41 Cal.Rptr. 303].) The rule does not preclude the court from reviewing the facts asserted as the basis for the privilege. (Id., at p. 855.)

Rawnsley v. Superior Court(1986), 183 Cal.App.3d 86 ["the obvious and simple solution"]

Montebello Rose Co. v. ALRB (1981), 119 Cal.App3d 1

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874   [In camera review may be permissible and necessary to determine issue of waiver by disclosure when the Common Interest Doctrine is invoked to justify disclosure to another. "The issue here, however, is not whether the documents contain privileged information. Rather, it is whether any privileges were waived because of disclosure to a third party. Moreover, we do not suggest that OXY must amend its privilege log to describe the content of each document. Instead, an in camera review of the documents would permit the court to determine whether the disclosures were reasonably necessary to accomplish the lawyer's role in the consultation." Slip Opinion p.22-23.

"In camera review of privileged documents is generally prohibited because "the privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case." (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557; see also Solin v. O'Melveny & Myers (2001) 89 Cal.App.4th 451, 466.)

The rule against in camera review, however, is not absolute. (See Cornish v. Superior Court (1989) 209 Cal.App.3d 467, 480.) "The rule is based on the notion that when there is a claim of attorney client privilege, for example, it is neither customary nor necessary to review the contents of the communication in order to determine whether the privilege applies as the court's factual determination does not involve the nature of the communications or the effect of disclosure but rather the existence of the relationship at the time the communication was made, the intent of the client and whether the communication emanates from the client. [Citation.]" (Ibid.) "[C]ourts have recognized, if necessary to determine whether an exception to the privilege applies, the court may conduct an in camera hearing notwithstanding section 915. [Citation.]" (Ibid., italics {Slip Opn. Page 23} added.) Generally, in camera hearings should be limited to a determination whether there is an exception to, or waiver of, the privilege, and "whether the exception or waiver depends on the content of the communication. [Citation.]" (People v. Manago (1990) 220 Cal.App.3d 982, 990, fn.4.) "[W]here an exception to a privilege depends upon the content of a communication, the court may require disclosure in camera in making its ruling." (Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 606.)]

2,022 Ranch v. Superior Court,113 Cal.App.4th 1377 and Martin v. Workers' Comp. Appeals Bd., supra, 59 Cal.App.4th at page 347 language suggesting in camera review expressly rejected by Supreme Court in Costco case supra.


CONTENTS

CASES

TOP


ELEMENTS: Confidential, Communication, in the course of Attorney, Client, Relationship,

Evid.Code 954
" ...the client whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing , a confidential communication between client and lawyer ...."

Issue determined on item by item basis

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377 [Case remanded for trial court to conduct exam of each question at a deposition and each document at issue to determine the applicability of the attorney-client or work product based on the dominant purpose of the communication. [ NOTE Decision disapproved In Costco and Clark cases re in camera review of content to determine "dominant purpose" of communication.]  Insurance Co. claims file discoverable in bad faith cause of action. "However, not everything in the insurer's claims file is discoverable. Upon timely objection or motion for protective order, privileged information (e.g., attorney-client {Slip Opn. Page 27} communications or attorney work product) is protected from discovery. Application of the privilege must generally be determined by the court on a document-by-document and issue-by-issue basis. (See Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 242.) " ]


ATTORNEY - CLIENT RELATIONSHIP

Relationship

Preliminary communications: privilege applies even if no retention of lawyer

Benge v. Superior Court (1982), 131 Cal.App.3d 336 [attorney speaking to union; half retained attorney]
Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1003 [citing Estate of Dupont(1943), 60 Cal.App.2d 276,287

Subsequent communications: not applicable when employment rejected

People v. Gionis(1995), 9 Cal..4th 1196

CASES

Payment of fees not determinative factor

Bank of America v. Superior Court (2013),    Cal.App.4th    "Fidelity's retention of GKCJ to represent B of A is sufficient to establish a tripartite attorney-client relationship between Fidelity, B of A, and GKCJ. (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1406 ["In California, it is settled that absent a conflict of interest, an attorney retained by an insurance company to defend its insured under the insurer's contractual obligation to do so represents and owes a fiduciary duty to both the insurer and insured"]; Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 127 (Gulf Ins.) ["Counsel retained by an insurer to defend its insured has an attorney-client relationship with the insurer"]; State Farm Mutual Automobile Ins. Co. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1429 (State Farm Mutual) ["Between the attorney and the insurer who retained the attorney and paid for the defense, there exists a separate attorney-client relationship endowed with confidentiality"].) The principles regarding an insurer's duties to provide counsel for the insured are the same under title insurance policies as under general liability policies. (Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1077; Israelsky v. Title Ins. Co. (1989) 212 Cal.App.3d 611, 620.)"

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 213  [beneficiaries of trust sought privileged communications between trustee and its attorney; "Wells Fargo concedes the trust paid for O'Melveny's legal services related to trust administration, but asserts it did not pay for the services either of Wells Fargo's in-house attorneys or White & Case, the firm that represents Wells Fargo in this litigation. It does not matter.  Payment of fees does not determine ownership of the attorney-client privilege. The privilege belongs to the holder, which in this context is the attorney's client. (Evid. Code, § 954, subd. (a).) As discussed above, the trustee, rather than the beneficiary, is the client of an attorney who gives legal advice to the trustee, whether on the subject of trust administration (Moeller, supra, 16 Cal.4th at pp. 1129-1130; Fletcher v. Superior Court, supra, 44 Cal.App.4th at p. 777; Lasky, Haas, Cohler & Munter v. Superior Court, supra, 172 Cal.App.3d at p. 278) or of the trustee's own potential liability (cf. Moeller, supra, at p. 1135). To the extent the source of payment has any significance, it is but one indicium in determining the existence of an attorney-client relationship (Lasky, Haas, Cohler & Munter v. Superior Court, supra, at p. 285) and, thus, who holds the privilege."]

Smith v. Laguna Sur Villas Community Assoc . (2000), 79 Cal.App.4th 639  [Client is entity that retains attorney to act on its behalf; the client consults with the attorney. Condo association is the client and individual homeowners are not. Paying attorney fees as assessed does not create attorney-client relationship. There is no exception for fiduciaries, beneficiaries, or shareholders.]

Shannon v. Superior Court (1990), 217 Cal.App.3d 986

Employment not required

Benge v. Superior Court (1982), 131 Cal.App.3d 336

People v. Canfield (1974), 12 Cal.3d 699 [employment need not result from communication; financial eligibility statement given to obtain PD in criminal defense is protected]

Timing/Existence: selection at time of communication unnecessary so long as communication intended for attorney

Gene Compton's Inc v.Superior Court (1962), 205 Cal.App.2d 365 [accident report to insurance co.]
Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424 [accident report to insurance co.]
Travelers Ins. CO v. Superior Court (1983), 143 Cal.App.3d 436[accident report to insurance co.]
Heffronv. Los Angeles Transit Lines (1959), 170 Cal.App.2d 709 [accident report to insurance co.]
Holm v. Superior Court (1954), 42 Cal.2d 500 [if dual purpose for creation of communication, look to dominant purpose]

 Retention / Consultation 


Bank of America v. Superior Court (2013), Cal.App.4th    "...it does not matter whether there is a formal retainer agreement between Fidelity and GKCJ. A formal contract is not required to create an attorney-client relationship. (Gulf Ins., supra, 79 Cal.App.4th at p. 126.) Retaining GKCJ to represent B of A was enough in itself to establish the tripartite attorney-client relationship."

Smith v. Laguna Sur Villas Community Assoc. (2000), 79 Cal.App.4th 639 "Because they did not consult with or retain the Duke, Gerstel law firm, they do not fit within the joint-client exception of Evidence."]

Corporate Dissolution

Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th [4th Dist.Div.1, 5/23/11] Corporate derivative action against attorney barred when attorney–client privilege prevented use of evidence in defense. Corporation's outside counsel was sued in derivative action by 49% stockholder for negligent and tortious conduct for facilitating the 51% shareholder's conversion of corporate funds to her own use after the 2 agreed to dissolve the corporation. 51% stockholder was the president, director and chief financial officer of corporation; 4( % stockholder was an officer and director. Corporate counsel provided advice to 51% shareholder / president / chief financial holder re subject of lawsuit. Court “finding” that corporation had not waived attorney-client privilege as to communications between the the 51% stockholder and counsel that are the subject of the lawsuit. Demurrer sustained without leave to amend on grounds that counsel could not defend against claims and that claims against counsel are barred. In a derivative action, the stockholder does not stand in the shoes of the the corporation and cannot waive the privilege. The filing of the action does not waive the privilege.
Dissolved corporation continues to exist for purposes of winding up and defending lawsuits. The holder of the corporate privilege is its successor. EC §953(d) The attorney has a duty to claim the privilege. EC §955. B&P §6068. EC §958 does not apply to corporation.
The issue of a conditional stay approach was not decided.

Dominant Purpose of Relationship See below re Lawyer, In House Counsel

Clark v. Superior Court
196 Cal.App.4th 37 [If lawyer performs multiple functions, e.g. business advisor, look to dominant purpose of relationship as well as dominant purpose of communication. (See Chabourne case re communications required of employees for multiple purposes). "We interpret Costco's disapproval of 2,022 Ranch as making clear that, to determine whether a communication is privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties to the communication. Under that approach, when the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege." p. 17 slip opinion.

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377. [Dominant purpose test applies to capacity of attorney acting. "This "dominant purpose" test not only looks to the dominant purpose for the communication, but also to the dominant purpose of the attorney's work. (Aetna Causalty & Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, 475 (Aetna); Wellpoint, supra, 59 Cal.App.4th at pp. 121-122.) Thus, "the attorney-client privilege [would] not apply without qualification where the attorney was merely acting as a negotiator for the client [citation], or merely gave business advice [citation], or was merely acting as a trustee for the client [citation]." (Aetna, supra, 153 Cal.App.3d at p. 475.)" At p. 1398 "...employing attorneys to conduct routine claims investigations does not make their factual investigations subject to the attorney-client privilege." Case disapproved in Costco case re in camera inspection to determine privilege]
 

CONTENTS

CASES

Lawyer [EC §950]

Jailhouse lawyer not covered

People v. Valasquez (1987), 192 Cal.App.3d 319 [no belief jailhouse lawyer was graduate of law school or admitted to practice anywhere]

American Airlines, Inc. v. Superior Court (DiMarco) (2003), 114 Cal. App. 4th 881; 2003 Cal. App. LEXIS 1923,
In a wrongful termination case, a union rep had investigated and assisted in presentation of a grievance in arbitration. At deposition he testified as to relevant events but refused to provide details or names of persons directly involved claiming that information was the result of confidential communications between union rep and union members. The appellate court reversed the trial court and ordered that the questions be answered.
The court held a statute providing for general right to union representation does not create a privilege similar to the attorney-client privilege. It relied on the narrow scope of Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766 . “Thus, based upon the language of section 10950, its legislative history, and the court's characterization of the communication as "legal advice," the court construed the statute "as including a guarantee of confidentiality in its extension of the right of representation to include representation by lay persons as well as counsel in connection with welfare fair hearings." (Crisan, supra, 33 Cal.3d at pp. 768, 772.) The court did not create a new evidentiary privilege as a matter of judicial policy; rather, it held the Legislature impliedly crafted the privilege as it expanded section 10950.” “The statute in Crisan expressly pertained to authorized advocates before a tribunal under a narrowly drawn legislative scheme in which laypersons were permitted to act in lieu of attorneys. On the other hand, section 923 is only a general declaration of the well-accepted public policy that employees have the freedom to designate representatives "to negotiate the terms and conditions" of employment. Section 923 does not create any specific proceedings or hearings from which it can be inferred the existence of a privilege would apply.”
In addition, the court rejected privacy. “The questions generally related to the names of American employees DiMarco had heard using racial slurs toward Alamad and the names of those American employees whose arbitration testimony was allegedly coerced. These questions do not delve into the constitutionally protected right of associational privacy.” In addition, there were no promises, agreements, or reasonable expectations of privacy.

Capacity: Acting in capacity of attorney

Clark v. Superior Court (VeriSign, Inc.) (2011), 196 Cal.App.4th 37 "Dominant purpose" term applied to relationship between attorney and other party to communication on issue of attorney-client relationship.

Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766 ["the lawyer-client privilege set forth in Evidence Code section 950 et seq. does not require that the purported lawyer actually be one." Supreme Court found "a privilege comparable to the attorney-client is impliedly provided by statute" when the statute expressly provides for lay representation as an alternative to lawyer representation to protect due process rights and the welfare recipient "believed and intended their consultation with him in that capacity to be confidential". The court cautioned against applying this reasoning as to "comparable" privilege to other statutes: "Nothing we have said with respect to section 10950 of the Welfare and Institutions Code demands an identical interpretation of those other enactments, each of which will have to be examined against its own statutory, historical and constitutional background."]

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377. Disapproved re in camera inspection in Costco and Clark cases.  [Dominant purpose test applies to capacity of attorney acting. "This "dominant purpose" test not only looks to the dominant purpose for the communication, but also to the dominant purpose of the attorney's work. (Aetna Causalty & Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, 475 (Aetna); Wellpoint, supra, 59 Cal.App.4th at pp. 121-122.) Thus, "the attorney-client privilege [would] not apply without qualification where the attorney was merely acting as a negotiator for the client [citation], or merely gave business advice [citation], or was merely acting as a trustee for the client [citation]." (Aetna, supra, 153 Cal.App.3d at p. 475.)" ..."we conclude that evidence reflecting the factual investigation of 2,022 Ranch's claim is subject to discovery. Only those communications reflecting the requesting of, or rendering of, legal advice are protected by the attorney-client privilege, and only the attorney's legal impressions, conclusions, opinions, or legal research or theories are subject to the attorney work product privilege. ..."
"In reaching this conclusion, we first observe that the claims adjuster primarily responsible for 2,022 Ranch's claim admitted that her position at Chicago Title for the most part was that of a claims adjuster: investigating the claims, analyzing them, and determining whether payment should be made. This is work that in the insurance industry ordinarily could be done by an individual not licensed to practice law. Cloaking such an adjuster's factual investigation in privilege would shield from discovery information that otherwise would not be entitled to any protection if communicated by an adjuster who was not an attorney but performed the same duties. "To apply the privilege in such a situation would have the effect of placing a premium upon use of attorneys as [adjusters], nonattorneys or clients acting for themselves having no such right to protect their" communications. (Watt, supra, 115 Cal.App.3d at p. 805.)  "...this entitles to protection only those communications that constitute the actual rendering of, or request for, legal advice, not those communications reflecting the adjusters' factual investigation of 2,022 Ranch's claim..... employing attorneys to conduct routine claims investigations does not make their factual investigations subject to the attorney-client privilege."]

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377 at p. 1398 "...employing attorneys to conduct routine claims investigations does not make their factual investigations subject to the attorney-client privilege." [disapproved in Costco case re in camera inspection to determine privilege]

Wellpoint Health Networks .Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [outside attorney investigating employee claims requires communication by communication analysis; hiring a lawyer to conduct an employer's investigation does not protect entire investigation; strong dictim]

Kaiser Foundation Hospitals v. Superior Court(1987), 192 Cal.App.3d 319 [dominant purpose of communication ]

Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 [attorney hired to investigate mudslide claim and advise on coverage issue acting as attorney; 2022 Ranch case suggests AetnaI case protects work of outside counsel only to determine coverage issue and adds "employing attorneys to conduct routine claims investigations does not make their factual investigations subject to the attorney-client privilege." p.29 of slip opinion "To the extent that Aetna can be read so broadly as to hold that any factual claims investigation work by an in-house attorney claims adjuster is privileged, we decline to follow that decision as contrary to California law. (Montebello Rose, supra, 119 Cal.App.3d at p. 32; Watt, supra, 115 Cal.App.3d at vp. 805; Wellpoint, supra, 59 Cal.App.4th at pp. 121-122; Chicago Title, supra, 174 Cal.App.3d at pp. 1151, 1154.) "]

Montebello Rose v. ALRB (1981), 119 Cal.App3d 1

Collettev. Sarrasin (1920), 184 Cal.283 [prior AC relationship doesn't prove acting as attorney for particular t/a]

Benge v. Superior Court (1982)[informational meeting conducted by attorney retained by union]

See also cases cited in 2002 Ranch re non-protection of outside counsel acting in non-lawyer function

In National Farmers Union Property & Casualty Co. v. District Court (Colo. 1986) 718 P.2d 1044, 1047-1048
In Mission Nat. Ins. Co. v. Lilly (D.Minn. 1986) 112 F.R.D. 160, 163-165

House Counsel

Chicago Title Ins. Co.v. Superior Court (1985), 174 Cal.App.3d ll42 [Rationale of case is based on waiver by tender of issue but court notes merger of roles of attorney and corp exec as making the two indistinguishable. The court also notes at p.1151 that A/C doesn't apply to house counsel or any attorney acting in non-atty. capacity. ]

Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217 [no issue made of fact that communication was made to in-house counsel]

State Compensation Insurance Fund v. Telanoff (1999), 70 Cal.App.4th 644 [claims adjuster to house counsel to outside counsel]

Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529 Hospital self insured and communication to house counsel. Incident report primarily for purpose of communication to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected.

Clark v. Superior Court (VeriSign, Inc.) (2011), 196 Cal.App.4th 37

CASES

Law Corporations [B&P Code §§6160 et seq]

Out of State attorney covered: Ev.C.950

In Re Jordon(1974), 12 Cal.3d 575

Agents of Attorney

City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227 p.236 ["any form of agency", client's or attorney's agent, interpreter, messenger]
Cf re psych priv.
Luhdorff v. Superior Court(1985) 166 Cal.App.3d 485[ Clinical social worker at county hospital conducting interview & part of psych team]
People v. Gomez (1982), 134 Cal.App.3d 874[Student interns w/ family court services not within priv]
People v. Clark (1990), 50 Cal.3d 583 [psych commun to attorney ]

Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51 [Client's employee can be acting as agent or paralegal for outside counsel. "The trial court found, however, that Rowley, in summarizing and transcribing the comments made during the conference, assumed the role of Yukevich's paralegal. Substantial evidence supports the court's finding. Yukevich testified that Rowley was acting under his directions. Rowley merely included information that Yukevich wanted in the document. Rowley confirmed that he was acting under Yukevich's directions to take notes of specific subject areas addressed during the conference. Under these facts, Rowley was not acting in his capacity as Mitsubishi's representative. Rowley also was not providing nor receiving information on Mitsubishi's behalf. The exchange was simply between an attorney and an individual acting as the attorney's paralegal."

Clark v. Superior Court (VeriSign, Inc.) (2011), 196 Cal.App.4th 37 [dictum re communications from in house employee to other employees working with counsel on subject]

CONTENTS

CASES
CASE OUTLINE

TOP

Client [EC §951] Holder of privilege [EC 953] (see also Joint Client under Exceptions below)

Factors

Payment of fees

Bank of America v. Superior Court (2013),    Cal.App.4th   

Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 [one indicia]

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201 [one factor]

Smith v. Laguna Sur Villas Community Assoc. (2000), 79 Cal.App.4th 639 Client is entity that retains attorney to act on its behalf; the client consults with the attorney. Condo association is the client and individual homeowners are not. Paying attorney fees as assessed does not create attorney-client relationship.

Shannon v. Superior Court (1990), 217 Cal.App.3d 986 Source of funds re beneficiaries of trust, beneficiaries of estate, corporation in receivership etc does not convert to attorney-client relationship; citing Lasky, Hass


Agents: communication via agent of either

State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th 625 p. 639

"We have no doubt that Ms. Zuniga was an "authorized representative" of State Farm within the meaning of Evidence Code section 951 for application of the privilege. "It is no less the client's communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both." [citing City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 236. see also People v. Lines (1975) 13 Cal.3d 500. In re Ochse (1951) 38 Cal.2d 230, 232.]

Shannon v. Superior Court (1990), 217 Cal.App.3d 986

State Farm Fire & Casualty Co. v. Superior Court(1989), 216 Cal.App.3d 1222 [adjuster may be joint agent of insured and insurance company]

Soltani-Rastagerv. Superior Court (1989), 208 Cal.App.3d 424 [insurance adjuster]

City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227 p.236 [physician selected by attorney to examine client and communicate to attorney re condition; interpreter, messenger, any form of agency]

People v. Clark (1990), 50 Cal.3d 583 [communication via psychiatrist obtained by attorney. "Because Dr. Weinberger was appointed to examine defendant at the request of his counsel, any statements he made to her for the purpose of obtaining a diagnosis for counsel's use in preparing a defense were subject to both the psychotherapist-patient and attorney-client privileges...."]

Torres v. Superior Court(1990 ), 221 Cal.App.3d 181

Torres v. Superior Court (1975), 50 Cal.App.3d 778

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [Communication to expert if for communication to attorney; not if just for expert analysis] see also Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) (Data revealed to expert for purpose of obtaining legal advice and accomplishing purpose for which attorney was consulted is not waiver.)

National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100 [agency for negotiating K is not the agency refered to in EC 951 and doesn't create atty-client relationship between attorney for agent in negotiations and principal ; relationship is between attorney& agent]

Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51 [Client's employee can be acting as agent or paralegal for outside counsel. "The trial court found, however, that Rowley, in summarizing and transcribing the comments made during the conference, assumed the role of Yukevich's paralegal. Substantial evidence supports the court's finding. Yukevich testified that Rowley was acting under his directions. Rowley merely included information that Yukevich wanted in the document. Rowley confirmed that he was acting under Yukevich's directions to take notes of specific subject areas addressed during the conference. Under these facts, Rowley was not acting in his capacity as Mitsubishi's representative. Rowley also was not providing nor receiving information on Mitsubishi's behalf. The exchange was simply between an attorney and an individual acting as the attorney's paralegal."

People v. Lines
(1975), 13 Cal.3d 500

De Los Santos v. Superior Court(1980), 27 Cal.3d 677 [mother/guardian ad litem; all communications for attorney whether or not passed on to attorney ]

Jones v. Superior Court (1962) 58 Cal.2d 56, 60-61

Holm v. Superior Court(1954), 42 Cal.2d 500 [any form of agency formed or set in motion by client; can be agent of client, attorney or both]

Suezaki v. Superior Court(1962), 58 Cal.2d 166, 178 [expert; investigator]

Grand Lake Drive v. Superior Court (1960),  [expert]  179 Cal App.2d122


Cf re psych priv.

Clinical social worker part of psych team

Luhdorff v. Superior Court (1985), 166 Cal.App.3d 485

Student interns under supervision

People v. Gomez (1982), 134 Cal.App.3d 874

CONTENTS

CASES
CASE OUTLINE

Expert

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [Communication to expert if for communication to attorney; not if just for expert analysis ]

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) (Data revealed to expert for purpose of obtaining legal advice and accomplishing purpose for which attorney was consulted is not waiver.)

Rico v. Mitsubishi Motors Corp. (2004), 116 Cal. App. 4th 51 [Not communication from client when expert engineer retained  by and advises attorney on engineering issues. "The document did not memorialize any attorney-client communication and, contrary to defendants' argument, the document was not transmitted between an attorney and his client....The dialogue was primarily between defense attorneys and defense experts. While the privilege may extend to the client's agents and employees, the privilege attaches to the client's communication as relayed by the representative, not to communication originating from the representative. An attorney-client privilege does not attach to a communication that has no connection to the client. A conference between attorneys and experts, who are simply stating their own opinions, is not protected by the attorney-client privilege.]
 
Mowry v. Superior Court (1962), 202 Cal.App.2d 229 [appraiser's report to attorney in condemnation action; disapproved in San Diego Prof. Assn.

City & County of San Francisco v. Superior Court
(1951), 37 Cal.2d 227 p.236 [physician selected by attorney to examine client and communicate to attorney re condition; interpreter, messenger, any form of agency]

People v. Clark (1990), 50 Cal.3d 583 [communication via psychiatrist obtained by attorney. "Because Dr. Weinberger was appointed to examine defendant at the request of his counsel, any statements he made to her for the purpose of obtaining a diagnosis for counsel's use in preparing a defense were subject to both the psychotherapist-patient and attorney-client privileges...."]

People v. Donovan (), 57 Cal.2d 346
Rust v. Roberts (), 171 Cal.App.2d 772 [the court held the attorney-client privilege to be applicable in a situation where real property appraisers for the state were sought to be interrogated by the adverse party. But it was there sought, among other things, to compel disclosure of "the contents of the appraisers' reports" delivered to the state's attorneys in confidence]

CONTENTS

CASES
CASE OUTLINE

Partnership (joint client exception)

Wortham & Van Liew v. Superior Court(1987), 188 Cal.App.3d 927 [attorney rep all partners + fiduciary duty of partners; no privilege re communication outside presence of other partner; purely personal & private communication may be privileged]

McCain v. Phoenix Resources(1986), 185 Cal.App.3d 575,581[prelim.inj requiring GP and attorney to produce all partnership documents to LP aff'd; privileged documents not at issue but court notes at p. 581 that only purely private or personal interests of one partner would be protected by atty-client privilege]

Cavanaugh Nailing Mach.Co. v. Cavanaugh (1959) 167 Cal.App.2d 657[Attorney rep both in formation from joint venture to part to corp; tr court rev'd for excluding attorney testimony; re conv. in presence of other joint client; error conceded on appeal p.660]

Hecht v. Superior Court (1987), 192 Cal.App.3d 560  [tr court rev'd for not compelling attorney to ans re conversation during formation of corp; joint client relationship continued after incorporation until ouster of one principal ]


Trust:

Attorney for trustee does not rep beneficiary, by virtue of that relationship

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201
Fletcher v. Superior Court(1996), 44 Cal..App.4th 773 p.777
Lasky Hass et al v. Superior Court (1985), 172 Cal.App.3d 264, p.282
Goldberg v. Frye (1990), 217 Cal.App.2d 1258, 69

Successor trustee as client

Moeller v. Superior Court (1997), 16 Cal.4th 1124 [successor trustee is client for purposes of communications to trustee in official capacity; see Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201 re comments on cases]

Insurance Co / Insured: see Joint holder/client

Bank of America v. Superior Court (2013),    Cal.App.4th    "Fidelity's retention of GKCJ to represent B of A is sufficient to establish a tripartite attorney-client relationship between Fidelity, B of A, and GKCJ. (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1406 ["In California, it is settled that absent a conflict of interest, an attorney retained by an insurance company to defend its insured under the insurer's contractual obligation to do so represents and owes a fiduciary duty to both the insurer and insured"]; Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 127 (Gulf Ins.) ["Counsel retained by an insurer to defend its insured has an attorney-client relationship with the insurer"]; State Farm Mutual Automobile Ins. Co. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1429 (State Farm Mutual) ["Between the attorney and the insurer who retained the attorney and paid for the defense, there exists a separate attorney-client relationship endowed with confidentiality"].) The principles regarding an insurer's duties to provide counsel for the insured are the same under title insurance policies as under general liability policies. (Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1077; Israelsky v. Title Ins. Co. (1989) 212 Cal.App.3d 611, 620.)"

Venture Law Group v. Superior Court (2004),  Cal.App.4th   [6th Dist .H026113; (Hon. William J. Elfving, Santa Clara County, Filed 4/7/04; pub. order 4/29/04 ] Former management cannot waive corporate attorney-client privilege.   Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.” The court of appeal rejected two “novel” arguments: that the insurance company defending the lawsuit was the real holder and de facto management and had tendered the issue; that the holder had no real interest in asserting the privilege.


Guardian ad litem

De Los Santos v. Superior Court (1980), 27 Cal.3d 677 [privilege applies to communications between mother & child intended for attorney whether or not communicated]

Receiver

Shannon v. Superior Court (1990) 217 Cal.App.3d 986. Issue re corporate violation of securities law arose during receivership ; opinion letter from special counsel to receiver sought by directors.
We hold the receiver is entitled to the benefit of the privilege and issue a peremptory writ of mandate to the respondent court.” at p.989
A receiver occupies a position generally analogous to that held by an executor in the law of probate or by a trustee in the law of bankruptcy.
"Without doubt the attorney-client privilege applies to communications between an executor and the counsel engaged to assist in the discharge of the executor's fiduciary obligations. The executor is a "client" who "consults [the] lawyer for the purpose of ... securing legal service or advice from him in his professional capacity." (Evid. Code, § 951.) ….The executor thus has a "privilege to refuse to disclose, and to prevent another from disclosing," these communications. (Evid. Code, § 954; citations) What has been said about executors in the law of probate may generally be said, as least as to essential principles, about trustees in the law of bankruptcy. [fed cite] at p.994

Labor Union

Benge v. Superior Court (1982) [client includes labor union; person = unincorporated association]

Organization / Association

HLC Properties, Ltd. v. Superior Court (2005),  35 Cal.4th 54, 24 Cal.Rptr.3d 199  Business entities and the persons who run them are not an "organization" within the meaning of Ev.Code 953(d) when the businesses are treated by  all concerned as the property of an individual.  Bing Crosby owned various businesses that he managed with the assistance of employees during life. His executor, as personal representative, succeeded as holder of the privilege per Evid. C. § 953(c) and continued to run the businesses until the properties were transferred to a limited partnership, HLC, which brought a contract action regarding royalties against MCA. HLC asserted the attorney-client privilege as to communications between employees of the decedent and decedent's attorneys. The trial court held there was no holder of the privilege to assert it, the appellate court reversed but the Supreme Court upheld the trial court and reversed the appellate court.

First the court upheld the trial court determination that the holder of the privilege was Bing Crosby and not the unincorporated organization or association of persons who worked for the businesses referred to as Bing Crosby Enterprises. The court noted that other organizations such a labor unions or fraternities are recognized by the IRS and their assets are not probated upon the death of a member. It noted that Crosby signed the contracts in dispute as an individual and that he was treated as a sole proprietor during his life by his employees and attorneys.


Homeowners Association

Smith v. Laguna Sur Villas Community Assoc. (2000), 79 Cal.App.4th 639 [Client is entity that retains attorney to act on its behalf; the client consults with the attorney. Condo association is the client and individual homeowners are not. Paying attorney fees as assessed does not create attorney-client relationship. There is no exception for fidciaries, beneficiaries, or shareholders.
"Condominium associations may bring construction defect lawsuits against developers without fear of having to disclose privileged information to individual homeowners. Like closely-held corporations and private trusts, the client is the entity that retained the attorney to act on its behalf."]

Seahaus La Jolla Owners Assoc. v. Superior Court (2014) , Cal.App.4th Communication by lawyer for HOA to individual homeowners, including those who are not clients and who have lawyers in personal actions for damages, at required informational litigation update meeting re construction defect litigation brought by HOA are protected by the attorney-client privilege. Issue. “Were such communications sufficiently confidential, and 'reasonably necessary for the accomplishment of the purpose for which the [Association's] lawyer is consulted,' based on common interests in the subject matter of the Association's litigation updates?”

CONTENTS

CASES
CASE OUTLINE

Corporation

Attorney represent corporation; not shareholders

Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96   [6th Dist . Former management and majority shareholders cannot waive corporate attorney-client privilege.   Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client.

National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100, 108 [paramount duty is to corp.; Garner Rule rejected]
Skarbrevik v. Cohen, England,& Whitfield (1991), 231 Cal.App.3d 692,703 [attorney has no duty to minority s/h]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [minority s/h suing majority s/h, director and pres for fraud etc in connection with sale of corp when majority s/h rec'd consulting fee; corp counsel advice & consultations to pres. protected]

Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th [4th Dist.Div.1, 5/23/11] Corporate derivative action against attorney barred when attorney–client privilege prevented use of evidence in defense. The holder of the corporate privilege is its successor. EC §953(d) The attorney has a duty to claim the privilege. EC §955. B&P §6068. EC §958 does not apply to corporation.

Directors may not have right to inspect atty-client communications

National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100, 109 [CtAp found that documents were being sought in a s/h derivative action by a director in his capacity as a s/h; it held s/h had no right to inspect atty-client privileged documents; it did not reach issue of director's right to inspect but cast doubt on it noting partnership cases do not apply to corporations and that a director can't violate fiduciary duties]

Corporate spokesperson [Who speaks for the corporation to the attorney? ]

D. I. Chadbourne,Inc. v. Superior Court(1964), 60 Cal.2d 723[employee witness statement not protected]

Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529 [ Incident report primarily for purpose of communication to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected. Follows Chadbourne and Sierra Vista]

Suezaki v. Superior Court(1962), 58 Cal.2d 166, 178  [Trial court denied production of surveillance films taken of Plt  without its knowledge by investigator hired by attorney on grounds of attorney client privilege and was reversed on that issue.     Citing Holm for point that photo of bus transmitted to atty is not per se privileged]

Holm v. Superior Court(1954), 42 Cal.2d 500  [Analyzed in Chadbourne and Suezaki cases; photograph taken of bus for purpose of litigation and transmitted to attorney; accident report of a bus driver/defendant transmitted to its attorney, required by his employer (S.F. Municipal Ry.) to be executed at the time of the accident]

Payless Drug Stores Inc v. Superior Court(1976), 54 Cal.App.3d 988 [accident reports prepared by store manager and management level employee privileged under Chadbourne as a matter of law.  Trial court order of production rev'd.]

Martin v. Worker's Compensation Appeals Board(1997), 59 Cal.App.4th 333[employee witness statement not protected][disapproved in Costco case re in camera inspection to determine privilege]

Sierra Vista Hospital v. Superior Court(1967), 248 Cal.App.2d 359 [confidential incident report sent to adjuster, not part of medical record, required by insurance company in case of potential litigation]

Alpha Beta Co. v Superior Court (1984),157 Cal.App.2d 818, 826 [VP & Gen'l Counsel verified complaint on information and belief but refused to answer questions at deposition; court parsed questions requring answers to some [facts, what meant by verified pleading, whether invetigator hired] and denying to others [content of communications]

Jessup v. Superior Court (1957), 151 Cal.App.2d 102, 109 [employee statement not privileged]

State Compensation Insurance Fund v. WPS, Inc.(1999), 70 Cal.App.4th 644 [claims adjuster to house counsel to outside counsel.   "'Civil Litigation Claims Summary' forms prepared by employees of State Fund..... The heading at the top of each claim summary form reads: 'Attorney-Client Communication/Attorney Work Product,' followed by: 'Do Not Circulate or Duplicate,' and '(Complete and Return to SCIF Civil Litigation Center).' The word 'Confidential' is repeatedly printed around the perimeter of the first page of the form. All of the pages of documents, including the 'Civil Litigation Claims Summary' documents, were sequentially numbered."]

Upjohn Co. v. United States (1981), 449 U.S. 383 [Corporate control group test rejected in federal courts; two way communication need recognized and need to obtain information or give legal advice to corporation may involve communications with persons below upper eschelon management; interviews and communications with mid-level executives by  Gen. and Outside Counsel acting as lawyers; communcations directed by management to obtain facts to enable rendering of  legal advice ]

Costco Wholesale Corp. v. Superior Court (Randall) (2009), 47 Cal.4th 725, ["Chadbourne and its progeny therefore would be relevant if we were considering whether the statements of the warehouse managers interviewed by Hensley were themselves subject to the attorney-client privilege. But these authorities are not relevant to the question before us: whether the communication between Costco's attorney and Costco was privileged."]

Closely held corp treated same as other corp

Hoiles v. Superior Court (1984), 157 Cal.App.3d 1192 [Rejects federal Garner rule (rejection of corp AC in particular cases) & joint client arguments ; Attorney representing corp, mgmt, & control group; Tr.ct. found meeting for corporate purposes; interest of corp & majority sh identical]

Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [communication to majority s/h, director, pres. protected from minority s/h; Garner rule rejected; "...there is no language in the statute which justifies a distinction between corporate clients in suit against their shareholders and other clients in different circumstances."; mere assertion of fraud not enough to invoke crime fraud exception]

Garner v. Wolfinbarger (5th Cir. 1970) 430 F.2d 1093, 1101, cert. den.[based on FRE held A-C privilege could be "subject to the right of the stockholders to show cause why it should not be invoked in the particular instance." when s/h sue corp]

Hecht v. Superior Court (1987)192 Cal.App.3d 560 see below

National Football League Properties v. Superior Court(1998), 65Cal.App.4th 100, 107 [No shareholder exception to atty-client privilege; Garner Rule rejected in Calif.

Formation

Cavanaugh Nailing Mach.Co. v. Cavanaugh (1959) 167 Cal.App.2d 657[Attorney rep both in formation; tr court rev'd for excluding attorney testimony re conv. in presence of other joint client]

Hecht v. Superior Court (1987), 192 Cal.App.3d 560[tr court rev'd for not compelling attorney to ans re conversation during formation of corp; joint client relationship continued after incorporation until ouster of one principal ]

Dissolution

Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th [4th Dist.Div.1, 5/23/11] Corporate derivative action against attorney barred when attorney–client privilege prevented use of evidence in defense. In a derivative action, the stockholder does not stand in the shoes of the the corporation and cannot waive the privilege. The filing of the action does not waive the privilege.
Dissolved corporation continues to exist for purposes of winding up and defending lawsuits. The holder of the corporate privilege is its successor. EC §953(d) The attorney has a duty to claim the privilege. EC §955. B&P §6068. EC §958 does not apply to corporation.

Holder of Privilege EC 952 See above re Client

Guardian ad litem

De Los Santos v. Superior Court(1980), 27 Cal.3d 677 [guardian ad litem is holder]

Successor in interest

Moeller v. Superior Court (1997), 16 Cal.4th 1124 [trustee]

HLC Properties, Ltd. v. Superior Court (2005),  35 Cal.4th 54, 24 Cal.Rptr.3d 199  [personal representative] When the personal representative of a deceased client is discharged there is no holder to assert the attorney client privilege
Bing Crosby owned various businesses that he managed with the assistance of employees during life. His executor, as personal representative, succeeded as holder of the privilege per Evid. C. § 953(c) and continued to run the businesses until the properties were transferred to a limited partnership, HLC, which brought a contract action regarding royalties against MCA. HLC asserted the attorney-client privilege as to communications between employees of the decedent and decedent's attorneys. The trial court held there was no holder of the privilege to assert it, the appellate court reversed but the Supreme Court upheld the trial court and reversed the appellate court.

Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96   [6th Dist .4/29/04 ] Former management cannot waive corporate attorney-client privilege.   Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.” The court of appeal rejected two “novel” arguments: that the insurance company defending the lawsuit was the real holder and de facto management and had tendered the issue; that the holder had no real interest in asserting the privilege.

Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th [4th Dist.Div.1, 5/23/11] Corporate derivative action against attorney barred when attorney–client privilege prevented use of evidence in defense. In a derivative action, the stockholder does not stand in the shoes of the the corporation and cannot waive the privilege. The filing of the action does not waive the privilege.
Dissolved corporation continues to exist for purposes of winding up and defending lawsuits. The holder of the corporate privilege is its successor. EC §953(d) The attorney has a duty to claim the privilege. EC §955. B&P §6068. EC §958 does not apply to corporation.

Commodity Futures Trading Comm'n v. Weintraub (1985), 471 US 343 [new mgmt & bankruptcy trustee]

Tekni-Plex, Inc. v. Meyner v. and Landis (1996), 89 N.Y.2d 123, 674 N.E.2d 663 [successor mgmt in corp buyout]

Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [successor corporation after merger is holder of privilege of corp that fails to exist by virtue of merger]

CONTENTS

CASES
CASE OUTLINE

TOP



COMMUNICATION [EC §952]

Information transmitted between lawyer and client
In the course of that relationship
In confidence
so far as the client is aware
by means which discloses info to no 3d persons other than
those present to further interest of client
those to whom disclosure reasonably necessary
Includes legal opinion & advice given

Attorney client privileged communication protected in its entirety

Costco Wholesale Corp. v. Superior Court (Randall) (2009),  47 Cal.4th 725   [No. S163335. Nov. 30, 2009.]   No content of an attorney-client privileged communication is discoverable.

Legal Opinion

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4Th 1263, 1272   "The comment of the Law Revision Commission to the 1967 amendment makes clear the scope of the amendment. `The express inclusion of "a legal opinion" in the last clause will preclude a possible construction of this section that would leave the attorney's uncommunicated legal opinion—which includes his impressions and conclusions—unprotected by the privilege. Such a construction would virtually destroy the privilege.'" (Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 99 [146 Cal.Rptr. 171].) Thus, legal opinions formed by counsel during representation of the client are protected "confidential communication[s]," even if the opinions have not been transmitted to the client."
"The issue also arises as to whether the legal opinions may be shared with a nonattorney agent retained by the attorney to assist with the representation without losing their confidential status. It appears that they can, as such an agent would fall into the category of "those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.""
The Court held questions at deposition of a lawyer were privileged as to (1)Lawyer conveying information about witness to another lawyer in the firm; (2) lawyers knowledge as to how co-counsel drafted a declaration of witness without talking to witness; and (3) Lawyer discussions with investigator as to payment of witness

Facts not protected; communications of fact of transmission of specific information or documents is protected

Greyhound v. Superior Court(1961), 56 Cal.2d 355, p.397 [ "...it has been held that what an attorney observes and hears from his client is not necessarily privileged (Grand Lake Drive In v. Superior Court, supra), and that nonprivileged matter which comes into the attorney's possession via a privileged document may be subject to disclosure even though the entire document is not (idem; Unger v. Los Angeles Transit Lines, 180 Cal.App.2d 172 [4 Cal.Rptr. 370, 5 Cal.Rptr. 71])"..."Moreover a party may not silence a witness by having him reveal his knowledge to the litigant's attorney (City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 238).  In the Grand Lake opinion (supra, at p. 127) this proposition was stated as follows: "Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney. [Citation.]  Obviously, a client may be examined on deposition or at trial as to the facts of the case, whether or not he has communicated them to his attorney. [Citation.]  While the privilege fully covers communications as such, it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney."   This court approved and adopted this language in San Francisco Unified Sch. Dist. (supra, 55 Cal.2d 451) in which it was said, at page 457: "We hold that the forwarding to counsel of nonprivileged records, in the guise of reports, will not create a privilege with respect to such records and their contents where none existed theretofore."]

Wells Fargo Bank v. Superior Court (Boltwood) (2000) 22 Cal.4th 201p. 210 ["Knowledge that is not otherwise privileged does not become so merely by being communicated to an attorney."]

Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529 [Factual nature of communication irrelevant and facts themselves may be discoverable but not the communication which was the subject of the motion. Incident report primarily for purpose of communicate to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected.]

State Farm Fire & Casualty Co. v. Superior Court
(1997) 54 Cal.App.4th 625, p.639 [facts & knowledge of employee gained through privileged communications not protected; communications between attorney & client through an agent is protected; facts of transmission of item protected; independent facts not protected e.g. meeting, persons present, subject matter]

"However, the attorney-client privilege only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication." [citing Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004-1005]
"Therefore, to the extent that Ms. Zuniga has knowledge about the practices and procedures of State Farm, or the existence of claims manuals and other documents which are normally utilized by State Farm in the operation of its business, the information is not privileged. [citing Holm v. Superior Court (1954) 42 Cal.2d 500, 511].... Also, it would not be a violation of the attorney-client privilege for Ms. Zuniga to divulge that such documents exist but were not produced in connection with the Taylor Action, although to divulge a conversation to that effect or the fact that such information had been delivered to an attorney, would violate the privilege. [citing People v. Lee (1970) 3 Cal.App.3d 514, 526, "... the fact that the client delivered ... evidence to his attorney may be privileged, the physical object [or information] itself does not become privileged merely by reason of its transmission to the attorney."]
"Nor does the attorney-client privilege protect independent facts related to a communication; that a communication took place, and the time, date and participants in the communication."
at p. 641 "Ms. Zuniga's observations, independent of the conversations, would not be privileged."


2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003) 2003 Cal. App. LEXIS 1804, 113 Cal. App. 4th 1377.  ["The privilege does not protect "independent facts related to a communication; that a communication took place, and the time, date and participants in the communication." (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640.) Further, the privilege "does not protect disclosure of underlying facts which may be referenced within a qualifying communication" (id. at p. 639), and it does not extend to individuals who are no more than witnesses to the matter at issue in the litigation. (Martin v. Workers' Comp. Appeals Bd. (1997) 59 Cal.App.4th 333, 345.) "'Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney. . . . While the privilege fully covers communications as such, it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney.'" (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 397.) "[T]ransmission alone, even where the parties intend the matter to be confidential, cannot create the privilege if none, in fact, exists." (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176.) Documents that are independently prepared by a party "do not become privileged communications . . . merely because they are turned over to {Slip Opn. Page 13} counsel." (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119 (Wellpoint).)"] [disapproved in Costco case re in camera inspection to determine privilege]

Holm v. Superior Court (1954), 42 Cal.2d 500 [picture of bus; witness statement; report]
In re Navarro (1979), 93 Cal.App.3d 325
Wellpoint Health Networks Inc.v. Superior Court(1997), 59 Cal.App.4th 110
Coy v. Superior Court(1962), 58 Cal.2d 210
Martin v. Worker's Compensation Appeals Board(1997), 59 Cal.App.4th 333, 345 [disapproved in Costco case re in camera inspection to determine privilege]

People v. Lee (1970), 3 Cal.App.3d 514, 527
Triple A Machine Shop v. State (1982), 213 Cal.App.3d 131 143
Grosslight v. Superior Court (1977), 72 Cal.App.3d 502,506
Wilson v. Superior Court (1957), 148 Cal.App2d 433
City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227
Chicago Title Ins.Co v. Superior Court(1985), 174 Cal.App.3d ll42. at p. 1149
Mitchell v. Superior Court(19 ), 37 Cal.3d 591 at p. 599
State Farm Fire & Casualty v. Superior Court(1997), 54 Cal.App.4th 625,  p.641

See also  Upjohn Co v. U.S.(1981) 449 U.S. 383 ["The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney:
'[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different [449 U.S. 383, 396] thing. The client cannot be compelled to answer the question, `What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communications to his attorney.' Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (ED Pa. 1962)."]

CONTENTS

CASES
CASE OUTLINE

Confidentiality

Delivery to attorney
       Delivery to of unprivileged communication to attorney does not make it privileged
             D.I. Chadbourne v. Superior Court
             Alpha Beta  Co v. Superior Court

1995 amendment to EC 952 re cell p[hone, electronic transmission

Presumption EC 917

Gordon v. Superior Court (1997), 55 Cal.App.4th 1546, 1557
State Farm v. Superior Court(1997), 54 Cal.App.4th 625 p.639
BP Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240, p.1262

Not if overheard because knowingly made in presence of unrelated 3rd party [see EC 912 re voluntary disclosure to 3rd party]

People v. Poulin (1972), 27 Cal.App.3d 54 [bailiff]
People v. Cox (1968), 263 Cal.App.2d 176,188 [police matron]
People v. Castiel(1957), 153 Cal.App.2d 653, 659 [court reporter]

Client intent governs

City & County of San Francisco v. Superior Court(195 ), 37 Cal.2d 227

Intent re: legal services required

Collette v. Sarrasin (1920)184 Cal.283[attorney acting as scrivener insufficient; prior AC not proof of AC for particular t/a]

No privilege if client intends matter to be conveyed to others

People v. Dubrin (1965), 232 Cal.App.2d 674, 680 ["A communication made by a client to his attorney, made with the intent that the communication be conveyed to another, is not privileged. (Solon v. Lichtenstein, 39 Cal.2d 74 "]

CASES

Communication

The entire communication is protected

Costco Wholesale Corp. v. Superior Court (Randall) (2009),  47 Cal.4th 725   [No. S163335. Nov. 30, 2009.]   No content of an attorney-client privileged communication is discoverable.

Documents reflecting communications

Gordon v. Superior Court (1997), 55 Cal.App.4th 1546, 1557 [checks and check stubs mentioned but not decided. "Of course, some communications are not "confidential" and it may be that business checks payable to a client or others on the client's behalf are not privileged. (Evid. Code, § 952; and see People v. Chapman (1984) 36 Cal.3d 98, 110; see also Baird v. Koerner (9th Cir. 1960) 279 F.2d 623 [95 A.L.R.2d 303]) Assuming without deciding that Gordon's canceled checks are not privileged documents, the check stubs may be privileged if the attorney has used them for recording privileged information. (People v. Meredith (1981) 29 Cal.3d 682, 693 .)]

Communications other than oral & written statements

City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227,.235 [actions, signs, almost any act, handwriting specimen, showing a scar or token]

Mitchell v. Superior Court (1984), 37 Cal.3d 591 [Tr.Ct rev'd for ordering answer to depo question that assumed an attorney-client communication; court notes that the privilege protects communications beyond oral and written statements; e.g. fact of transmissions of documents or evidence citing In Re Jordon]

Suezaki v. Superior Court(1962),, 58 Cal.2d 166, 178 [movies of Plt taken by investigator hired by attorney not protected by AC]

Holm v. Superior Court(1954), 42 Cal.2d 500[actions, signs & other means of communication covered]

Benge v. Superior Court (1982), 131 Cal.App.3d 336 [What happened at meeting; almost any act done by client before attorney; uncommunicated impressions & conclusions of attorney]]

Wellpoint Health Networks v. Superior Court(1997), 59 Cal.App.4th 110

In Re Navarro (1979), 93 Cal.App.3d 325

In Re Jordon(1974), 12 Cal.3d 575, 580 [ printed material transmitted by attorney to client e.g. news articles, copies of cases, draft pleadings]
People v. Superior Court(1987), 192 Cal.App.3d 32

Estate of Kime (1983), 144 Cal.App.3d 246,255

Ex parte McDonough(1915), 170 Cal.230.234

Untransmitted or received communications

See above re unretained counsel
Holm v. Superior Court(1954), 42 Cal.2d 500[intended for further communication to attorney]

Doe 2 v. Superior Court (2005), 132 Cal.App.4th 1504, 1519

It is undisputed that Pastor Fernandez did not transmit the letter to an attorney. Indeed, she did not even copy the letter to an attorney. Rather, the letter was sent to Reverend Stewart.
"The church notes that Pastor Fernandez stated in her declaration that it was her “expectation, intention and belief that this July 22 correspondence would be passed onto [sic] the Bishop of the Annual Conference and to Attorney Jay Rosenlieb as the attorney for the Annual Conference and with whom this declarant and the Bishop’s office had been jointly communicating concerning the issues surrounding Gary Carson Hull.” However, Pastor Fernandez did not explain why she did not transmit the letter to Attorney Rosenlieb directly.
"As the reviewing court, we cannot say the trial court abused its discretion in concluding that the letter was not a privileged attorney-client communication.”

CONTENTS

CASES
CASE OUTLINE

TOP

Fee Agreements protected

Calif. Bus. & Prof. Code §6149

Communications w/ identifying information deleted

Wilson v. Jefferson(1985), 163 Cal.App.3d 952[WP & AC rejected re case files, copies of letters w/ names deleted, limitations and other precautions, form letters etc. when seeking specific, highly relevant documents]

Existence of Attorney -Client relationship generally not protected

State Farm Fire & Casualty
Nowell v. Superior Court (1963), 223 Cal.App.2d 652
Mitchell v. Superior Court(1984), 37 Cal.3d 591
Montebello Rose Co. v. ALRB (1981), 119 Cal.App3d 1 [must be acting in capacity of attorney]
Exceptions

Russo, Johnson et al v. Superior Court l9l CA3d1514
People v. Perry(1972), 7 Cal.3d 756

Client names normally not protected

Brunner v. Superior Court (1959), 51 Cal.2d 616 [TP action]
Willis v. Superior Court(1980), 112 Cal.App.3d 277 [Fee dispute between lawyers representing client; Distinguished by Hooser]
Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1005 [citing People v. Chapman (1984), 36 Cal.3d 98,110 amd Hays v. Wood(1979), 25 Cal.3d 772, 785]
Tien v. Superior Court (Tenet Healthcare Corp.) (2006) , 139 Cal.App.4th 528.  Names of  putative class member contacting counsel. By agreement, a sample of putative class member employees were invited to contact plaintiff's counsel and defendant sought the names etc. of those who did and plaintiffs sought a protective order. 24 of 82 objected to disclosure, some because they feared retaliation. The appellate courts affirmed the trial court's overruling of the attorney-client privilege objection because disclosure of names of persons contacting counsel "would reveal nothing confidential." The trial court did not mention but the appellate court overruled the work product objection holding "Plaintiffs' counsel was merely the passive recipient of some telephone calls. Therefore, the trial court's discovery order does not violate the attorney work product doctrine."
The trial court was reversed on privacy grounds: "... we conclude that the privacy rights ...outweigh Tenet's need for the discovery."

Client names protected if reveal confidential information

Rosso, Johnson et al v. Superior Court( 191 Cal.App.3d 1414 [revealing name of Dalkon Shield users responding to attorney ad reveals nature of problem] criminal attorney ? tax attorney ?
Cf Scull v. Superior Court(1988), 206 Cal.App.3d 784[psych patient names protected]
Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1005 [exception if disclosure would implicate client in unlawful activities]

Client names may be protected by Right to Privacy

Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1005 [no compelling need for disclosure shown]

Subject matter of communication not protected

Lohman v. Superior Court (1978), 81 Cal. App.3d 90[waiver re conversation with one attorney Not waiver as to 2d attorney re subj.]

State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th at p.640 ["To the extent necessary, we will identify the subject matter covered in each of the challenged paragraphs, but without disclosing the privileged communication. Coy v. Superior Court, supra, 58 Cal.2d at p. 219.]

Disclosure of subject matter not a waiver

Mitchell v. Superior Court (1984), 37 Cal.3d 591

Transamerica Title Ins. Co. v. Superior Court(1987), 188 Cal.App.3d 1047

Southern California Gas v. PUC(1990), 50 Cal.3d 31 at p.49

"Gardner stands for the proposition that a disclosure by a client that he has made a communication to his lawyer about a particular subject is not a disclosure of a significant part of the content of such communication, which is the disclosure required for a waiver of the privilege under Evid. Code, § 912." (2 Jefferson, Cal. Evidence Benchbook, supra, § 35.1, pp. 1307-1308 (first italics added).)
".... The attorney-client privilege seeks to protect the conversations and communications between the attorney and client, not merely the conclusions developed by those conversations or the fact that such conversations occurred. Accordingly, we conclude that SoCalGas's disclosure of the fact of its attorneys' review of the Getty agreement and the conclusions arrived at by its attorneys to members of the commission was not an express waiver of the attorney-client privilege."

Client records not protected

McCain v. Phoenix Resources (1987), 185 Cal.App.3d 575
Miller, Morton Caillat & Nevis v. Superior Court(19 )169 Cal.App.3d 552 depublished [Only documents generated after general partnership formed subject to joint client exception; client entitled to entire file

CONTENTS

CASES
CASE OUTLINE

WHO MAY CLAIM PRIVILEGE [Evid.Code 954]

Holder

guardian ad litem

De Los Santos v. Superior Court(1980), 27 Cal.3d 677


successor trustee

Moeller v. Superior Court (1997), 16 Cal.4th 1124

bankruptcy trustee

Commodity Futures Trading Comm'n v. Weintraub (1985), 471 US 343 re new mgmt & bankruptcy trustee.

successor corporate management

Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96  [6th Dist . 4/29/04 ] Former management cannot waive corporate attorney-client privilege.   Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.” The court of appeal rejected two “novel” arguments: that the insurance company defending the lawsuit was the real holder and de facto management and had tendered the issue; that the holder had no real interest in asserting the privilege.

Commodity Futures Trading Comm'n v. Weintraub (1985), 471 US 343 re new mgmt & bankruptcy trustee. Tekni-Plex, Inc. v. Meyner v. and Landis (1996), 89 N.Y.2d 123, 674 N.E.2d 663

Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th [4th Dist.Div.1, 5/23/11]. In a derivative action, the stockholder does not stand in the shoes of the the corporation and cannot waive the privilege. The filing of the action does not waive the privilege.
Dissolved corporation continues to exist for purposes of winding up and defending lawsuits. The holder of the corporate privilege is its successor. EC §953(d) The attorney has a duty to claim the privilege. EC §955. B&P §6068. EC §958 does not apply to corporation.

Person authorized by holder

guardian ad litem

de los Santos v. Superior Court(1980), 27 Cal.3d 677

Lawyer at time of communication (if holder exists & not instructed otherwise)

Duty to assert Evd.C 955

Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96  [6th Dist .H026113; (Hon. William J. Elfving, Santa Clara County, Filed 4/7/04; pub. order 4/29/04 ]  Former counsel had duty to assert when successor corporation had not waived. Former management cannot waive corporate attorney-client privilege.   Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege.


Benge v. Superior Court (1982),131 Cal.App.3d 336, p.344[attorney must claim unless otherwise instructed]

Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [attorney must claim without further instruction; corp client had merged into successor corp that was the successor holder]

Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th [4th Dist.Div.1, 5/23/11] The holder of the corporate privilege is its successor. EC §953(d) The attorney has a duty to claim the privilege. EC §955. B&P §6068. EC §958 does not apply to corporation.

Standing to raise issue

Mylan Laboratories Inc. v. Soon-Shiong (1999), 76 Cal.App.4th 71 [Holder of privilege has right to assert privilege in proceeding without intervening as a party]

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [Sip Opinion p.29. Under the Common Interest Doctrine only the party who is the holder of the privilege can assert it. The recipient of privileged documents lacks standing to assert the underlying privilege.]

CONTENTS

CASES
CASE OUTLINE

TOP

WAIVERS [EC 912(a)]

Tender of Issue:

See also Forced Election below

Communication must be tendered as an issue not just be relevant to an issue

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377 p.23 of slip opinion [disapproved in Costco case re in camera inspection to determine privilege]

Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 C3d 31 Party reveal it consulted lawyer and was advised it could not unilaterally terminate contract. Party did not rely on or tender advice of counsel as issue. Opponent sought 15 documents prepared by counsel. The PUC ruling of waiver was reversed. "We hold that... [erred] by holding that SoCalGas impliedly waived its attorney-client privilege. The commission failed to show that SoCalGas placed in issue privileged communications, or that the privileged information is essential for a fair adjudication of SoCalGas's application."

Mitchell v. Superior Court(1984), 37 Cal.3d 591, 603 [actual conversation must be directly at issue; not just attorney as conduit of information; alleging emotional distress that may have resulted from attorney communication of dangers of DBCP in drinking water was not tender of issue of those communications; approved in Southern Calif. Gas Co. v. PUC(1990), 50 Cal.3d 31,41  "We concluded there is no "waiver of the attorney-client privilege where the substance of the protected communication is not itself tendered in issue, but instead simply represents one of several forms of indirect evidence in the matter." ( Id. at p. 606."]

Miller v. Superior Court(1980), 111Cal.App.3d 390 HELD: Alleging date of discovery in case was not tender of issue or otherwise a waiver of attorney client communications relevant to the statute of limitations issue. Issue insufficient to find tender of issue of conversations with attorneys consulted after event; parties state of mind is in issue not what her attorney told her Alleging date of discovery is not waiver of attorney-client privilege re content of communication between attorney and client that may relate to date of discovery of facts for cause of action. Sof L was potential or actual issue in case. Plaintiff revealed fact that communication had occurred and that was not issue but refused to reveal letters and memorandum between plaintiff and counsel. ]

Lohman v. Superior Court(1978) 81 Cal.App.3d 90 [raising statute of limitations not waiver of communications with attorney; waiver re one attorney not waiver re all]



Advice of counsel defense

Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96   Former management cannot waive corporate attorney-client privilege.   Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.”

Southern Calif. Gas Co. v. PUC(1990), 50 Cal.3d 31 [advice of counsel must be tendered as issue; not implied from inference that it should have been considered; not just reliance; citing Merrit, Mitchell and Aetna cases; advice of counsel expressly withdrawn as issue]

Aetna Casualty & Surety v. Superior Court(1984), 153 Cal.App.3d 467 [declaratory relief re coverage and cross complaint re bad faith not tender of issue of advice of counsel or of attorney opinion by Ins.Co.; not raising defense of advice of counsel only that such advice was correct]

Transamerica Title Insur CO v. Superior Court(1987), 188 Cal..App.3d 1047, 1053 [ letter from attorney to def. reciting facts and advising declaratory defense c/a to avoid bad faith claim; advice of counsel only raised as defense re filing of declaratory relief c/a; "What constitutes a significant part of the communication is a matter of judicial interpretation; however, the scope of the waiver should be determined primarily by reference to the purpose of the privilege. "; not waiver re all communications; limit to subject for which advice of counsel raised]

State of mind of attorney

Merritt v. Superior Court(1970), 9 Cal.App.3d 721 [implied waiver by injecting issue of attorney state of mind in bad faith negotiations. approved in Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 C3d 31 "...the court in Merritt held that plaintiff had impliedly waived his privilege since he had specifically put the state of mind of his attorney at issue by alleging that the defendant's attorney had confused his attorney and impeded his attorney's ability to settle his claim. (Merritt v. Superior Court, supra, 9 Cal.App.3d at p. 730.)]

Transamerica Title Insur CO v. Superior Court(1987), 188 Cal.App.3d 1047 [recognized but not applied to facts in the case]

Estate of Kime (1983), 144 Cal.App.3d 246, 249 [attorney to be called as witness]

Defense of adequacy of investigation & remedial efforts to sex harassment not waiver of AC or WP

Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217[ investigation by outside HR "consultant" communicating with in house counsel]

Wellpoint Health Networks Inc. v. Superior Court
(1997), 59 Cal.App.4th 110[attorney hired to conduct investigation]

Issue of case tendered by holder inconsistent with assertion of privilege

Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386, [claiming dgs from attorney malpractice not waiver of communications with 2d attorney subsequently hired who defendant asserts was responsible for dgs.due to lack of mitigation; same re Lohman case]

Chicago Title Ins. CO v. Superior Court (1985), 174 Cal.App.3d ll42 at p. 1154 [ dual rationale: tender of issue & house counsel not acting as attorney; ]

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377, 1394  ["The attorney-client or attorney work product privilege may be impliedly waived by placing the contents of the privileged communications at issue in the case. (Mitchell, supra, 37 Cal.3d at p. 604; Wellpoint, supra, 59 Cal.App.4th at p. 129.) "Where privileged information goes to the heart of the claim, fundamental fairness requires that it be disclosed for the litigation to proceed." (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 292.)"][disapproved in Costco case re in camera inspection to determine privilege]

Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [Since the trial court did not rule on the issue of waiver by tender of the issue of adequate investigation, the appellate court did not rule on the issue. "We further hold that resolution of the waiver issue is dependent on the claims asserted in the complaint and the defenses raised thereto. As there was neither a complaint nor an answer on file when the trial court made its ruling, the order compelling discovery was premature."  The trial court had concluded that the attorney conducting the investigation was not acting as an attorney but as an investigator and that that the attorney client and work product protection could not apply. It was reversed due to a lack of evidence to support that conclusion. However, App Ct provided analysis and opinion on the waiver issue:. “...the employer's injection into the lawsuit of an issue concerning the adequacy of the investigation where the investigation was undertaken by an attorney or law firm must result in waiver of the attorney-client privilege and work product doctrine. With this proposition, we agree."
"
If a defendant employer hopes to prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy. The defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived."

Kaiser Foundation Hospitals v. Superior Court(1998),  66 Cal.App.4th 1217  [Trial court reversed when it found waiver of privilege "where the employer pleads the adequacy of its prelitigation investigation into the claimed misconduct as a defense in the action." "We therefore hold that, if an employer has produced the substance of relevant in-house investigations performed by nonattorney personnel and seeks only to protect specific communications between those personnel and the employer's attorneys, the protections afforded by the law for communications between attorneys and their clients are not waived by the employer's pleading of the adequacy of its prelitigation investigation as a defense to an action for employee discrimination or harassment.****...we hold that where a nonattorney has conducted an in-house investigation of employee complaints and the employee has been afforded full discovery of all aspects of that investigation with the exception of specified communications and documents protected by the attorney-client privilege and the work product doctrine, then no waiver of either the attorney-client privilege or the work product doctrine has been made."

Scope of waiver limited

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377, 1395  ["The scope of an implied waiver must be "narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver." (Transamerica Title Ins. Co. v. Superior Court (1987)188 Cal.App.3d 1047, 1052.)"] [disapproved in Costco case re in camera inspection to determine privilege]

Wellpoint Health Networks, Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [tendering issue of adequacy of investigation may waive AC re attorney conducting investigation]

Transamerica Title Insur CO v. Superior Court(1987), 188 Cal.App.3d 1047 [scope of waiver limited to advice given as to particular decision when such advice will be raised as defense]

Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217

Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386 [claiming dgs from attorney malpractice not waiver of communications with 2d attorney subsequently hired who defendant asserts was responsible for dgs.due to lack of mitigation; same re Lohman case]

CONTENTS

CASES
CASE OUTLINE

Refreshing recollection not a waiver

People v. Gray (4/28/ 2011), 194 Cal.App.4th 1133.  Ordered depublished 8/24/11. Third District held a privilege is waived when notes are used to refresh recollection, brought to the witness stand and used to testify. The appellate court assumed a party's notes were privileged then held a privilege is waived when notes are used to refresh recollection, brought to the witness stand and used to testify. Defendant claimed 18 pages of notes that he had worked on for 8 months were attorney client communications. Defendant consulted the notes while on the witness stand a “couple” of times to check dates or on "at least four times". “He admitted that he reviewed them to refresh his recollection just prior to testifying. Under questioning by Attorney Babbits, defendant stated that the notes were reviewed during conversations between him and his present and former attorneys, that some were prepared at his attorney's request, and that some were written by his attorney.” After reviewing the notes in camera the trial judged “determined that the documents were 'simply a summary of [defendant's] recollection of events,' the primary purpose of which was to refresh his memory.” She also determined they were not work product.

The Court stated the issue:
We shall assume for purposes of argument that the two documents in question were confidential communications between defendant and his attorneys and thus presumptively privileged. The decisive question is whether Judge Marlow correctly ruled that defendant's use of these notes to refresh his memory constituted a waiver of that privilege.” Later the opinion noted “She merely sought notes that were being employed by a witness during the course of his testimony.”
By bringing the notes to the witness stand and using them to refresh his memory, defendant made their contents fair game for examination and inquiry. Such conduct is inconsistent with an intent to preserve them as confidential attorney-client communications.
"It would be unjust to allow a party to use written materials on the witness stand to enable him to present his case to the jury and then hide behind a claim of attorney-client privilege when his adversary seeks to review the same materials. The trial court reasonably found that, by using the documents as a memory-refreshing device and visual aid in presenting his testimony, defendant waived any claim of attorney-client privilege. Accordingly, the court properly required their disclosure to the prosecution pursuant to the mandate of section 771. We find no abuse of discretion in the disclosure order.


Sullivan v. Superior Court
(1972), 29 Cal.App.3d 64

Mize v. Atcheson Topeka & Santa Fe Ry(1975) 46 Cal.App.3d 436

Cf. Kerns Construction re WP waiver by revealing contents of expert report

Voluntary Disclosure of significant part of communication [EC §912]

See below re persons to whom disclosure can be made w/o waiver
Limited Scope of Waiver
Limited: not total waiver; limit to communications or subject matter disclosed

Owens v. Palos Verdes Monaco (1983) 142 Cal.App.3d 855,869 [client introduced attorney notes re conversations with and items received from other parties, working drafts of the contract, and a telex re procede with deal; tr court found waiver of AC & WP re those subjects only; waiver of privilege limited to communications revealed; no total waiver re deal; affirmed; distinguishing Jones v. Superior Court(1981), 119 Cal.App.3d 534 re waiver of physician-patient communications re pregnancy and ingestion of DES; not re lifetime of treatment]

Voluntary

Use of Employer email

Holmes v. Petrovich Development Co., LLC (2011) , 191Cal.App.4th 1047 [3d Dist. 1/13/11] Client email to lawyer on employer computer violating employer manual, signed agreement and warning not confidential and not privileged. Ev.C. §917, subd. (b). Employee communication via email to attorney claimed to be privileged at deposition. Employee sought return and sanctions for use in violation of alleged agreement. Appeal of summary judgement.  Alleged error: “...denying her motion for discovery sanctions, seeking return of the e-mails that she sent her attorney,...using the company's computer. We disagree.” “An electronic communication is not privileged ”... (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a "'confidential communication between client and lawyer'" within the meaning of section 952 because it is not transmitted "by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . ." Slip Opinion, Page 30
“Absent a company communication to employees explicitly contradicting the company's warning to them that company computers are monitored to make sure employees are not using them to send personal e-mail, it is immaterial that the "operational reality" is the company does not actually do so. “
Quon case distinguished on 4th amendment & “operational realities” grounds

Court ordered disclosure not waiver: coerced , involuntary

Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386 [compliance w/o seeking court review not consent]

American Mutual Liab. Ins. Co. v. Superior Court(1974), 38 Cal.App.3d 579
p.595 [involuntary production of records not a waiver]

O'Mary v. Mitsubishi Electronics America Inc. (1997), 59 Cal. App.4th, 563, at p.577 [ "O'Mary forgets that discovery is coercion. The force of law is being brought upon a person to turn over certain documents."]

Government coerced disclosure under threat of economic or legal ramification not a waiver

Regents of the Univ. of California v. Superior Court (Aquila Merchant Services, Inc.) (2008), 165 Cal.App.4th 672

No waiver by admitting subject discussed with attorney

Mitchell v. Superior Court. (1984), 37 Cal.3d 591

Transamerica Title Ins CO v. Superior Court(1987), 188 Cal.App.3d 1047 [client reliance on advice of counsel defense; tr court rev'd for allowing discovery of attorney's notes, memoranda, and other documents relating to legal advice given;
scope of the waiver narrowly construed & determined by reference to the purpose of the privilege

Southern Calif. Gas.Co. v. PUC (1990), 50 Cal.3d 31

No waiver by testifying to facts that might have been discussed with attorney

Maas v. Municipal Court(1985), 175 Cal.App.3d 601 [criminal defendant subpoena of witness's attorney quashed; claims waiver by agreement to testify fully; must be free, knowing, and unambiguous waiver; testimony as to facts that may have been communicated is not equivalent to testimony as to communication; consent to disclosure must be unambiguously manifested; waiver of a privilege must be a voluntary and knowing act, done with sufficient awareness of the relevant circumstances and likely consequences; hold written agreement to testify was not waiver of AC]

Waiver by testimony re matter that could only come from AC communication.

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476

People v. Dubrin (1965), 232 Cal.App.2d 674,680 [waiver regarding matters within scope of testimony by attorney testifying; can cross examine within scope of direct exam]

Winegar v. Gray (1962), 204 Cal.App.2d 303,310 [client elicited its attorney's testimony]

No "joint defense privilege" recognized as such in California; but see "Common Interest Doctrine" below

Raytheon v. Superior Court (1989), 208 Cal.App.3d 683

See Kerns Construction re WP waiver by revealing contents of expert report

See International Insurance Co. re waiver of WP by insurance CO voluntarily disclosing docs to former agent to refresh recollection

CONTENTS

CASES
CASE OUTLINE

TOP

Procedures for resolving privileges etc. issues when documents disclosed

In the Rico case, the Supreme Court confirmed certain ethical obligation which included proecedures for resolving privilege, work product and other issues for nondisclosure of documents.
Shortly thereafter, the Judicial Council proposed legislation establishing procedures for a party to reclaim attorney -client privileged and work product information applicable only to ESI.
There are significant differences between the two rules as set forth in the comparison table below  See also  PDF version

Rico v. Mitsubishi Motors
(2007), 42 Cal.4th 807

C.C.P. §2031.285

ESI Statutory Rule

Ethical duty applies to lawyer

Statutory duty applies to parties etc.

Applies to all privileges, work product, and confidential information  “or any other similar doctrine that would preclude discovery based on the confidential nature of the document.”

Applies to claims of privileged or work product

Recipient duty to refrain from using and notify producing party

Duty applies upon receipt of materials that
          “obviously appears” privileged
          reasonably apparent it was  inadvertently produced

Party asserting claim notifies recipient

Notice of claim & basis for claim

Refrain from exam except to determine possibly privileged nature

Recipient sequesters information and
retrieves from other persons if previously disclosed

Use or disclosure precluded until issue resolved


Recipient returns info or presents to court under seal

Parties resolve or resort to court for decision

Recipient makes motion w/in 30 days

of claim receipt and deposit into court


CONTENTS

CASES
CASE OUTLINE

TOP


3rd persons to whom disclosure permitted: [Ev C §§ 912(d),  952]

Person to whom communication reasonably necessary
for transmission of information to attorney
for accomplishment of purpose for which lawyer consulted
Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.) (2007) , Cal.App.4th   [Oct. 11, 2007.] [Trial court reversed for employing definitions that did not include disclosures as permitted by Ev. Code Sec.952]

Common Interest Doctrine

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [At  p.16 of slip opinion: "... it is essential that participants in an exchange have a reasonable expectation that information disclosed will remain confidential."  The court held the doctrine does not create or enlarge any privilege; it impacts on the issue of waiver by disclosureof documents or other matter that is privileged on its own but is disclosed to a another party. At p.18 of slip opinion "[It] applies only to those documents and communications already protected from disclosure by the attorney-client privilege and the attorney work product doctrine, and it simply confirms the parties' agreement not to waive any applicable privileges by virtue of sharing privileged information on issues of common interest."]

STI Outdoor v. Superior Court (Eller Media Co.) (2001) 91 CA4th 334,341 [The Court of Appeal reversed the trial court and found there was no waiver when three documents protected by attorney-client privilege were revealed by opposing sides in the final negotiations of a contract. The exchange was made to facilitate their final negotiations and finalize the contract terms after they had reached a basic agreement. The Courts held at page 341 there was no waiver of the privilege when “...documents prepared by counsel, which were circulated between two parties bound by an offer and acceptance in contemplation of a binding, detailed license agreement [and] a transmittal letter between the parties discussing the topic of the legal memoranda. [were disclosed and]...the disclosure of such documents was reasonably necessary to further the interests of both parties in finalizing negotiations for the license agreement.”]

Insurance Co. of North America v. Superior Court(1980), 108 Cal.App.3d 758, 771 [intercorporate interests; affiliated officers & employees; parent/sub; ward; trust benef; at p. 771 "To sum up, we construe section 952 to mean that attorney-client communications in the presence of, or disclosed to, clerks, secretaries, interpreters, physicians, spouses, parents, business associates, or joint clients, when made to further the interest of the client or when reasonably necessary for transmission or accomplishment of the purpose of the consultation, remain privileged. [citations]"]


Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 214[discussed in WP context but SC seems to equate with AC on this issue."[T]he attorney's absolute work product protection," however, "continues as to the contents of a writing delivered to a client in confidence." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260; see 2 Jefferson, supra, § 41.15, p. 894].) This is because "the client has an interest in the confidentiality of the work product ...." (2 Jefferson, supra, § 41.15, p. 894.) So, too, do other attorneys representing the client, such as Wells Fargo's litigation counsel, White & Case. "The protection [of the work product doctrine] precludes third parties not representing the client from discovery of [protected] writing[s]." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260.)] 

Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525. Work Product case.  When parties on one side entered into a  “joint prosecution agreement” qualified work product applied to expert's testing and report and prevented opposing  party from interviewing or using reports or test results of experts. The effective date of the agreement preceded the retention and report which was covered by the agreement. The court found the expert consultation  was the result of joint collaboration and was joint work product that could not be waived by only only party. In addition, at p.534, the court found the agreement protected the information: “The joint prosecution agreement likewise provides full protection to such information. Parties with common interests may share confidential information without waiving applicable protections. (U. S. ex rel. Burroughs v. DeNardi Corp. (S.D. Cal. 1996) 167 F.R.D. 680, 686.)”

Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 588. [Cooke v. Superior Court (Cooke) (1978) 83 Cal.App.3d 582 , 147 Cal.Rptr. 915 ["Mrs. Cooke's counsel claimed with respect to the eight documents herein involved: ... that they were not privileged documents because they were communicated to persons other than Mr. Cooke's counsel in the dissolution case. ...Mrs. Cooke points to some evidence, contained in depositions of various parties, that copies of the documents may have been sent to Mr. Cooke's son, to an outsider (Jeanne Williams) and to other persons. This contention is without merit. Admittedly, some of the documents were sent to attorneys who represent Mr. Cooke in matters other than the dissolution action. But that does not defeat the privilege. The evidence which the trial court accepted was that all of the alleged recipients were either attorneys who represented Mr. Cooke in some capacity, or were members of his family or business associates who were legitimately kept informed of the progress of a lawsuit that directly involved the business with which they were associated. The law is that privilege extends to communications which are intended to be confidential, if they are made to attorneys, to family members, business associates, or agents of the party or his attorneys on matters of joint concern, when disclosure of the communication is reasonably necessary to further the interests of the litigant. (See §§ 952 and 917 of the Evid. Code and the official comment to those sections; and see Witkin, Cal. Evidence (2d ed. 1966), §§ 807, 810, 811.) We cannot overturn the factual findings of the trial court that the eight documents all fall within that rule."]

California Oak Foundation v. County of Tehama (2009), 174 Cal. App.4th 1217. Waiver rejected based on Evidence Code section 912, the “common interest doctrine, when County disclosed privileged documents to the attorney for developer when a third party challenged the EIR.

Employees

Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.) (2007) , 155 Cal.App.4th 1485

Business adversaries

STI Outdoor v. Superior Court (Eller Media Co.) (2001) 91 CA4th 334,341 [no waiver when 3 privileged documents were disclosed  after parties who had enterred agreement and were negotiating final terms and disclosure was done to facilitate final negotiations.]

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874[Joint defense or confidentiality agreements do not create or expand the privilege and only show there was no intent to waive the privilege.  Case remanded to trial court to conduct in camera review of each document to determine whether disclosure reasonably necessary to accomplish purpose:  general conclusions based on status of business negotiations or litigation not basis for determination.]

Government agency

McKesson HBOC, Inc. v. Superior Court (State of Oregon) (2004),  115 Cal. App. 4th 1229 [disclosure to SEC not reasonably necessary though both had interest in determining source of accounting irregularities. The court suggested sharing of information is not permitted based on “overlapping interests” when an adversarial relationship exists and there is no “alignment of interest”.]

Expert but testimony or designation as witness could be waiver

National Steel Products v. Superior Court(1989), 208 Cal.App.3d 683

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) (Data revealed to expert for purpose of obtaining legal advice and accomplishing purpose for which attorney was consulted is not waiver. Court recognized simultaneous dual capacity of expert as expert and consultant.)

Co-defendant

Raytheon v. Superior Court (1989), 208 Cal.App.3d 683 [no joint defense privilege in Cal. but disclosure to co-defendant may be justified if necessary to accomplish purpose of consultation]

California Oak Foundation v. County of Tehama (2009), 174 Cal. App.4th 1217.  Waiver rejected based on Evidence Code section 912, the “common interest doctrine, when County disclosed privileged documents to the attorney for developer when a third party challenged the EIR.

Co-counsel

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4Th 1263, 1274   Counsel in same law firm. "Surely, third persons to whom the information (in this case, an attorney's legal opinions) may be conveyed without destroying confidentiality include other attorneys in the law firm representing the client. Indeed, Evidence Code section 954 emphasizes that the relationship between attorney and client exists between the client and all attorneys employed by the retained law corporation. The Supreme Court has recognized that it is an "everyday reality that attorneys, working together and practicing law in a professional association, share each other's, and their clients', confidential information." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1153-1154 [86 Cal.Rptr.2d 816, 980 P.2d 371].) Such sharing cannot abrogate the privilege protecting an attorney's legal opinions."

Subsequent attorney

National SteelProducts v. Superior Court (1985), 164 Cal.App.3d 476

Spouses, family members, business affiliates, agents, attorneys

Hoiles v. Superior Court(1984), 157 Cal.App.3d 1192,  p.1200 [presence of spouses of officers & directors at meeting not waiver]

Cooke v. Superior Court(1978), 83 Cal.App.3d 582 p.588 [AC disclosure by spouse to family member etc not waiver as to other spouse]

Insurance Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, at p.771 [matters of joint concern; disclosure to executives of affiliated companyies reasonably necessary to further interest of client]

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201[discussed in WP context.  "[T]he attorney's absolute work product protection," however, "continues as to the contents of a writing delivered to a client in confidence." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260; see 2 Jefferson, supra, § 41.15, p. 894].) This is because "the client has an interest in the confidentiality of the work product ...." (2 Jefferson, supra, § 41.15, p. 894.) So, too, do other attorneys representing the client, such as Wells Fargo's litigation counsel, White & Case. "The protection [of the work product doctrine] precludes third parties not representing the client from discovery of [protected] writing[s]." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260.)]

Benge v. Superior Court (1982) [union members & family members at informational meeting conducted by attorney retained by union]

Guardian ad litem

De Los Santos v. Superior Court (1980), 27 Cal.3d 677

See also Insurance CO of North America v. Superior Court(1980)[dictum re ward, trust beneficiary etc.]

CF Parent communication to psych for minor protected

Grosslight v. Superior Court (1977), 72 Cal.App.3d 502

Claim adjuster

Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424 [Def owner made statement to claims adjustor prior to litigation and prior to attorney assignment to case. Declaration said the statement was made in confidence to CSAA for purpose of defending and for transmittal to an attorney.  Tr court ordered production of written statement and notes reasoning there was no attorney relationship. Rev'd

Gene Compton's Inc v.Superior Court (1962), 205 Cal.App.2d 365 [accident report to insurance co.]
Travelers Ins. CO v. Superior Court (1983), 143 Cal.App.3d 436[accident report to insurance co.]
Heffronv. Los Angeles Transit Lines (1959), 170 Cal.App.2d 709 [accident report to insurance co.]

Investigator / Agent of lawyer

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4th 1263

CONTENTS

CASES
CASE OUTLINE

Inadvertent disclosure / Ethical Duty of Recipient 

Electronically Stored Information:  C.C.P. §2031.285.   The Discovery Act was amended in 2009 to add C.C.P. §2031.285 establishing a procedure to assert and resolve claims of privilege and work product with regard to the newly defined "electronically stored information" The provision does not apply to "other similar doctrine that would preclude discovery based on the confidential nature of the document.”  The proposal does not address ethics directly but it precludes use of documents upon the claim of privilege or work product. The recipient must move within 30 days if it contests the claim and is precluded from using the document until the claim is resolved.

Rico v. Mitsubishi Motors Corp
.
(2007),  42 Cal.4th 807  Recipient's ethical duty upon receipt of inadvertently  produced documents that are privileged, confidential or protected from discovery. Attorney disqualification upheld.
“When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged.  The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.”
The Supreme Court determined a document to be absolute work product, in toto, and to have been inadvertently produced. It adopted the ethical standard set forth in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644.  It also agreed that the “standard applies to documents that are plainly privileged and confidential, regardless of whether they are privileged under the attorney-client privilege, the work product privilege, or any other similar doctrine that would preclude discovery based on the confidential nature of the document.”

The Supreme Court found no abuse of discretion and affirmed the disqualification of counsel as an appropriate remedy.
“Thus, ‘the record shows that Johnson not only failed to conduct himself as required under State Fund, [supra, 70 Cal.App.4th 644,] but also acted unethically in making full use of the confidential document.’  The Court of Appeal properly concluded that such use of the document undermined the defense experts’ opinions and placed defendants at a great disadvantage.  Without disqualification of plaintiffs’ counsel and their experts, the damage caused by Johnson’s use and dissemination of the notes was irreversible.”
Clark v. Superior Court (VeriSign, Inc.) (2011), Cal.App.4th   Disqualification of counsel for failure to comply with Rico ethics rule affirmed when client provided clearly privileged documents that were “excessively” reviewed. Disqualification is not required in all cases when the Rico ethics rule is violated but may be appropriate to protect a party's rights or the integrity of the judicial system. . The trial court ruled these measures were prophylactic, not punitive, and were necessary to protect [the party's] rights as well as the integrity of the judicial proceedings, and found there " 'exists a genuine likelihood that the . . . misconduct of [counsel] will affect the outcome of the proceedings before the court.' "
The court ordered (1) disqualification of counsel, (2) return of documents, and (3) prohibition of counsel from discussing the contents of the documents with anyone or providing counsel's work product in the action to either the party or any representative thereof.

Wells Fargo Bank v. Superior Court
(2000), 22 Cal.4th 201, 211[disclosure in good faith belief that law required it not a waiver; "An honest mistake of law, where the law is unsettled and debatable, both militates against a finding of waiver (citing B P Alaska) and offers a possible basis relief...."]


State Compensation Insurance Fund v. Telanoff
(1999), 70 Cal.App.4th 644 [No waiver by inadvertent disclosure; docs reviewed but overlooked by attorney& paralegal; not on privilege log; 273 pages produced with 3 boxes of previously produced docs; attorney disclosing docs had reviewed docs and maintained privilege log; "obviously", "patently" and "plainly" privileged; B of P on party asserting inadvertence to demonstrate it; IF (1) attorney receives docs and (2) they are obviously privileged and inadvertently disclosed, notify opponent and refrain from further examination; tr court awarded sanctions which were not upheld only becasue the appellate court felt the standards were not clear in California; disting Aerojet re discoverable facts, clear privilege, clear inadvertence in production, damages.]

Aerojet General Corp v.Transport Idemnity Ins. (1993), 18 Cal.App.4th 996, 1004, 1006 ["The attorney-client privilege is a shield against deliberate intrusion; it is not an insurer against inadvertent disclosure." Inadvertant disclosure of attorney client document sent to client and ultimately to opposing counsel; underlying facts in doc. were discoverable; 128.5 sanctions sought for investigating & plugging leak: Tr.Ct.granted, Ct.Ap. rev'd.on sanctions issue; dictum at p. 1006 suggests innocent party can use document: "We think that the manner in which DeVries obtained the information in this case-through documents inadvertently transmitted to his client-is irrelevant to resolution of the issue. Assuming no question of waiver, the problem would be no different if DeVries had obtained the same information from someone who overheard respondents discussing the matter in a restaurant or a courthouse corridor, or if it had been mistakenly sent to him through the mail or by facsimile transmission. Once he had acquired the information in a manner that was not due to his own fault or wrongdoing, he cannot purge it from his mind. Indeed, his professional obligation demands that he utilize his knowledge about the case on his client's behalf" ]

O'Mary v. Mitsubishi Electronics America Inc. (1997), 59 Cal. App.4th, 563, at p.577 [doc inadvertently produced immediate return requested upon discovery and in limini motion made; "O'Mary forgets that discovery is coercion. The force of law is being brought upon a person to turn over certain documents. Inadvertent disclosure during discovery by no stretch of the imagination shows consent to the disclosure: It merely demonstrates that the poor paralegal or junior associate who was lumbered with the tedious job of going through voluminous files and records in preparation for a document production may have missed something. O'Mary invites us to adopt a "gotcha" theory of waiver, in which an underling's slipup in a document production becomes the equivalent of actual consent. We decline. The substance of an inadvertent disclosure under such circumstances demonstrates that there was no voluntary release." Rev'd on other issues; matter remanded for further consideration re consensual production]

Great American Surplus Lines Ins. v. Ace Oil Co. (E.D.Cal.1988), 120 F.R.D.
533 [attorney-client privileged documents produced by reinsurance CO
pursuant to subpoena when holder of privilege was unaware and did not
authorize production. No waiver or privilege by delivery to reinsurer.
Protective order promptly sought upon discovery of production and documents ordered to be returned. Parties ordered to refrain from making reference to documents, disclosing or summarizing in any manner any portion of the documents.]

People v. Gardner (1984), 151 Cal.App.3d 134 [no waiver of physician-patient privilege by inadvertent or accidental disclosure]

See also the 2001 tentative recommendation to the Law Revision Commission to insert "intentional" into the waiver by disclosure provisions

see also article re technical access to unencrypted e-mail that questions reliance on existing opinions
Joshua M. Masur "Safety in Numbers: Revisiting the Risks to Client Confidences and Attorney-Client Privilege Posed by Internet Electronic Mail," (First prize, 1999 Berkeley Technology Law Journal Comment Competition) 14 Berkeley Tech. L.J. 1117 (1999)

Failure to assert timely


Kerner v. Superior Court (Widom) (2012), 206 Cal.App.4th 84   Opportunity to object
“In light of the unusual circumstances of this case, …. The trial court must conduct further proceedings, including an evidentiary hearing, to determine whether Kerner waived her attorney-client privilege.... The court must make explicit findings as to whether, despite her physical condition after the attack, Kerner had an opportunity to consult with counsel concerning assertion of her attorney-client privilege and whether she had an opportunity to claim the privilege in this action through her counsel but failed to do so.”

Stadish v. Superior Court (1999), 71 Cal.App.4th 1130 [assertion as part of general objection to document request satisfies timing requirement]

Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 [general assertion in timely manner satisfies timeliness requirement]

Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181  Boiler plate objections preserve attorney-client and work product.
Defendant served boilerplate objections, including attorney-client and work product, in response to document requests and interrogatories seeking identification of documents. It did so in order to gain time, rather than seek a court ordered extension. After meeting and conferring and discussing the claims of privilege without any success, Plaintiff sought responses without objections. Then, Defendant served further responses with the same objections and claimed the motion was moot. Although plaintiff requested and the trial court overruled the objections on the merits based on the failure of defendant to meet its burden of proof, the appellate court determined the trial court had based its decision on a finding of waiver. [Although it is not clear from the decision, it may have been based on Plaintiff's reliance on the wrong code section in making the motion i.e. a motion to compel rather than a motion to compel further answers.] The appellate court then followed Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513 holding that boilerplate objections raising attorney-client objections are not waivers even though they fail to comply with the requirements of the C.C.P. The trial court was instructed to enter a new order compelling defendant to further answer.

Hernandez v. Superior Court (Acheson Industries, Inc.) (2003)112 Cal.App.4th 285, 294 [dictim;  case management order. "... a forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy "privilege log," so long as the privilege is invoked in a timely manner. (See Korea Data Systems Co. v. Superior Court, supra, 51 Cal.App.4th at p. 1517.)]

People v. Poulin (1972), 27 Cal.App.3d 54  [bailiff testified to conversation overheard between attorney and client without objection]

Supression of erroneously disclosed information

Lohman v. Superior Court (1978), 81 Cal.App.3d 90, at p.99 [attorney-client communication should be suppressed; though not made,motion to strike would in tr court would have been futile]

Aerojet General Corp v. Transport Indemnity Ins.. (1993) 18 Cal.App.4th 996 [CCP 128.5 monetary sanctions against law firm rev'd; No issue re AC or suppression of AC privileged document (attorney to file memo) obtained by mistake and used by opposing counsel; documents had arrived by circuitous manner in complex case involving multitude of documents; No state bar rule prohibited conduct, ABA opinion noted, complexity of case and numerous documents; no claim of misconduct in receipt of document and court does not address duty to return docs;

People v. Vargas (1975) 53 Cal.App.3d 516,527 [attorney disclosed confidential communication in absence of client-perhaps as a tactic; court should have disregarded and excluded testimony]

Technicalities resulting in injustice & sanctions disfavored

Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339 [if timely asserted privilege should not be defeated by technicality such as lack of verification] see also Korea Data Systems Co. Ltd. v. Superior Court (1997) [same re objections to document production]

Motown Record Corp. v. Superior Court ( 155 Cal.App.3d [sanction for one day late in complying with court order too severe]

Hernandez v. Superior Court (Acheson Industries, Inc.) (2003)112 Cal.App.4th 285, 294 ["... a forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy "privilege log," so long as the privilege is invoked in a timely manner. (See Korea Data Systems Co. v. Superior Court, supra, 51 Cal.App.4th at p. 1517.)]


Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181  Boiler plate objections preserve attorney-client and work product.
Defendant served boilerplate objections, including attorney-client and work product, in response to document requests and interrogatories seeking identification of documents. It did so in order to gain time, rather than seek a court ordered extension. After meeting and conferring and discussing the claims of privilege without any success, Plaintiff sought responses without objections. Then, Defendant served further responses with the same objections and claimed the motion was moot. Although plaintiff requested and the trial court overruled the objections on the merits based on the failure of defendant to meet its burden of proof, the appellate court determined the trial court had based its decision on a finding of waiver. [Although it is not clear from the decision, it may have been based on Plaintiff's reliance on the wrong code section in making the motion i.e. a motion to compel rather than a motion to compel further answers.] The appellate court then followed Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513 holding that boilerplate objections raising attorney-client objections are not waivers even though they fail to comply with the requirements of the C.C.P. The trial court was instructed to enter a new order compelling defendant to further answer.

Waiver as to one attorney not waiver as to others

Lohman v. Superior Court (1978), 81 Cal. App.3d 90

CONTENTS

CASES
CASE OUTLINE

EXCEPTIONS

Limited to statute

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 206 [fiduciary duty of trustee does not overcome privilege; no implied exceptions or policy considerations; other states approach rejected]

Hoiles v. Superior Court (1984) p.1199[ exception based on Federal Garner rule rejected]

National Football League Properties v. Superior Court (1998), 65 Cal.App.4th 100 [follows Hoiles and rejects Garner Rule; Ev C. precludes tr court from carving out exceptions to attorney client privilege]

Burden of Proof

Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96  [6th Dist . 4/29/04 ] Former management cannot waive corporate attorney-client privilege.   Burden of proof shifts to proponent of waiver or exception once elements of attorney-client communication established by propnent of privilege.

Wellpoint Health Networks v. Superior Court (1997), 59 Cal.App.4th 110 [BP on proponent of exception]

Geilim v. Superior Court (1991)

Federal "Garner Rule" rejected: allow SH to show cause why AC should be

National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100
Hoiles v. Superior Court , 157 Cal.App.3d 1192 [rule rejected]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93
Cf. Goldstein v. Lees(1975), 46 Cal.App.3d 614

 

Crime - Fraud Exception (Evid Code §956;  see also Pen.C 1524 search warrant attorney files; 5th Amendment) 

...services of lawyer
sought or obtained
to enable or aid anyone
to commit or plan to commit 
a crime or fraud                                     

Purpose, scope

Abbott v. Superior Court (1947), 78 Cal.App.2d 19 21 ["...communications between attorney and client having to do with the client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of this privilege. ."]

People v. Clark (1990) 50 Cal.3d 583, 620 [limited scope; limit to obtaining assistance; enable or aid in commission or furtherance; not communication of intent]

Burden of Proof on party asserting exception:  existence of crime or fraud and relationship of communication thereto 

National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100
Nowell v. Superior Court(1963), 223 Cal.App.2d 652
Geilim v. Superior Court (1991), 234 Cal.App.3d 166,174
Cooke v. Superior Court(1978),  83 Cal.App.3d 582, 589

Scope of exception: communication must have reasonable relation to ongoing fraud
                           

People v. Clark (1990), 50 Cal.3d 583 [limited exception]

BP Alaska Exploration, Inc. v. Superior Court (1988), 199 Cal.App.3d 1240, at p.1269  "The documents in question must have a reasonable relation to the ongoing fraud to be discoverable under the crime-fraud exception."  Relationship of the fraud to the attorney-client communications.  The purpose of the attorney-client communication need not be the commission of a crime or fraud
at p. 1269  "...communications with counsel were made as part of the investigation that resulted in the fraudulent December 23 letter. This established the reasonable relationship between the subject matter of the fraud and the privileged communications.  "...corporate counsel, was made a member of the team investigating Nahama's claims to which the December 23 letter responded. Mr. Dorey was always present when Brownhill reported on the investigation...."
"This evidence permits a reasonable inference that the fraudulent scheme reflected in the December 23 letter evolved from the privileged communication."
at p. 1268 "a specific showing of the client's intent in consulting the attorney is not required. To require it would almost certainly lead to either a kind of "mini trial" or a near evisceration of the exception. A finding that the privileged material "reasonably relates" to the subject matter of the crime or fraud should suffice."
"mere coincidence in time between the alleged acts of misconduct and the period of attorney representation, without more, is insufficient to make the necessary prima facie showing. (Id. at pp. 401-402.) But in that case, the evidence supported the reasonable inference that the attorney's representation and advice assisted Synanon in carrying out its fraudulent scheme to destroy incriminating records."
We conclude therefore that NWEC made a prima facie showing that BPAE sought its attorney's services to assist in the commission or planning of a fraud by making misrepresentations of fact aimed at discouraging NWEC from pursuing its claims


State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th 625, 647  The appellate Court found "that there is a reasonable relationship between the communications and the alleged fraud" based upon assertions of fraud and "circumstances surrounding the privileged communications show that the communications were made in connection with discovery undertaken during this litigation"

CASES

TOP

No in camera inspection to determine exception without party's consent

State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th 625, 645
"Penal Code section 1524 is one of the enumerated exceptions to Evidence Code section 915 authorizing the court to utilize an in camera hearing in order to rule on the claim of privilege. The other two enumerated exceptions are Evidence Code sections 1040 (official information and identity of informer) and 1060 (trade secret). From these enumerated exceptions to Evidence Code section 915, we conclude that the Legislature does not contemplate disclosure of privileged material in ruling on the crime/fraud exception. [citing United Farm Workers of America v. Agricultural Labor Relations Bd. (1995) 41 Cal.App.4th 303, 316]However, section 915 only applies to the privileges contained within division 8 of the Evidence Code. It does not apply to the qualified work product privilege which is established in the Code of Civil Procedure."
NB: Evid C. 915 was amended to add work product after this case was decided.

Geilim v. Superior Court (1991), 234 Cal.App.3d 166, 176  "The requirement of an in camera review to determine a claim of privilege is consistent with a recent opinion of the United States Supreme Court. Indeed, the Supreme Court also made it clear that the alleged privilege stands until the party seeking disclosure presents evidence sufficient to establish an exception. In United States v. Zolin (1989) 491 U.S. 554, the court addressed the issue of disclosure of privileged materials under the federal rules of evidence. The Criminal Investigation Division of the Internal Revenue Service (IRS) sought to obtain two tapes of a church, which were held under seal in the custody of the California state court clerk. The IRS argued the tapes fell within the crime/fraud exception to the attorney- client privilege claimed by the church.
The Supreme Court held that disclosure to the court for purposes of determining the merits of a claim of privilege does not have the legal effect of terminating the privilege. (491 U.S. at p. 568) Therefore, upon the request of the party opposing the application of the attorney-client privilege, the federal district court may engage in in-chambers review of the materials allegedly subject to the privilege in order to determine the applicability of the exception.

Client intent

State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th 625, 645
Glade v. Superior Court (1978), 76 Cal.App.3d 738  [privilege lost if abused by client; attorney misuse of information to defraud others not waiver of client privilege]
Nowell v. Superior Court(1963), 223 Cal.App.2d 652 [need evid of client purpose before communication]
People v. Clark (1990), 50 Cal.3d 583 ["The attorney need not himself be aware of the illegality involved; it is enough that the communication furthered, or was intended by the client to further, that illegality."]
Geilim v. Superior Court (1991), 234 Cal.App.3d 166, 174 [client seeks or obtains legal assistance to plan or perpetuate a crime or fraud]
BP Alaska Exploration, Inc. v. Superior Court (1988), 199 Cal.App.3d 1240


Crime - Fraud

Need not prove all elements

BP Alaska Exploration, Inc. v. Superior Court (1988), 199 Cal.App.3d 1240
"
Evidence Code section 956 does not require a completed crime or fraud."  BP at p.1262
"We conclude that because section 956 applies where an attorney's services are sought to enable a party to plan to commit a fraud, the proponent of the exception need only to prove a false representation of a material fact, knowledge of its falsity, intent to deceive and the right to rely. (This means, of course, that a negligent fraud under Civil Code sections 1572 and 1710 will not suffice.)"  BP at p.1263
"An indispensable element of fraud is a right to rely on the misrepresentation alleged. [citation] If a party knows the true facts, he cannot justifiably rely on the alleged misrepresentations. BP at p.1264


Prima facie evidentiary showing required

Prima Facie

BP Alaska Exploration, Inc. v. Superior Court (1988), 199 Cal.App.3d 1240, 1262
 
"People v. Van Gorden (1964) 226 Cal.App.2d 634, 636-637 [38 Cal.Rptr 256], describes a prima facie case as one which will suffice for proof of a particular fact unless contradicted and overcome by other evidence. In other words, evidence from which reasonable inferences can be drawn to establish the fact asserted, i.e., the fraud."

Nowell v. Superior Court(1963), 223 Cal.App.2d 652 [mere allegations of fraud etc insufficient; require prima facie showing of client purpose & intent ]

State Farm v. Superior Court(Taylor)(1997) 54 Cal.App.4th 625, 643, 645 [Declarations from former claims adjustor and member of litigation department of State Farm.  Declarations that State Farm instructed employees to forge signatures, lie, destroy docs. "substantial evidence supports a finding of a prima facie case establishing the crime/fraud exception to the attorney-client privilege and that the same evidence establishes good cause for disclosure of work product and trade secret information." The court found it significant that house counsel rather than outside counsel hired after the alleged fraud occurred was involved in the communications. See also BP Alaska supra]

"Thus, we focus upon whether there is sufficient evidence to support the implied finding of a prima facie case to apply the crime/fraud exception: whether the services of the Berger Firm were retained and utilized to enable State Farm to commit a crime or a fraud; and whether there exists " 'a reasonable relationship between the [crime or] fraud and the attorney-client communication. [Citation.]' " (People v. Superior Court (Bauman & Rose), supra, 37 Cal.App.4th at p. 1769.) In that connection, it is the intent of the client upon which attention must be focused and not that of the lawyers. (Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746]


National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100, 108, 110

BP Alaska Exploration, Inc. v. Superior Court(1988), 199 Cal.App.3d 1240 [Attorney part of team and communication part of scheme perpetrating fraud; Fraud evolves from communication]

Dickerson v. Superior Court(1982),135 Cal.App.3d 93 ["...a mere allegation of fraud is insufficient to make the exception applicable. "[I]t would be destructive of the privilege to require disclosure on the mere assertion of opposing counsel. 'Accordingly, evidence should be presented, to make a prima facie showing that this was the client's purpose, before the communication is received.'" (Nowell v. Superior Court (1963)...."]

Probable cause for search warrant not prima facie showing of crime

People v. Superior Court p.1766-67 [Criminal investigation of attorney& issuance of search warrant deos not obviate claim of AC or establish prima facie showing(p.1768)]
Geilim v Superior Court (1991), 234 Cal.App.3d 166, 175

CONTENTS

CASES
CASE OUTLINE

Joint Client Exception [Ev.C. §962]

Joint Client: 2 clients retain or consult attorney on matter of common interest

Factual & evidentiary issue

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 209 [beneficiary of trust not joint client as a matter of law based on the fiduciary relationship but the client relationship might be established by a factual showing]

Hecht v. Superior Court [Conduct & intent critical]

Partnerships

Wortham & VanLiew v. Superior Court  (1987) 188 Cal.App.3d 927[Attorney for partnership respresents all partners; fid duty of partners; purely personal & private matters of one partner may be privileged but not communications re partnership]
Hecht v. Superior Court 192 Cal.App.3d 560
Johnson v. Superior Court 38 Cal.App.4th 463, 474-5
Miller, Morton, et al v. Superior Court (19 )169 Cal.App.3d 552[rep promoter until GP formed & then rep all partners; rejects theory of promoter as agent for all during formative stages]

CASES

TOP

Close Corporations

Hoiles v. Superior Court(1984), 157 Cal.App.3d 1192 [Treat same as any corp; exception inapplicable to case since minority SH didn't consult corp counsel re same subject matter ]

Ins. Co./ Insured / Cumis Counsel

Tripartite Relationship

Bank of America v. Superior Court (2013),  212 Cal.App.4th 1076  "Fidelity's retention of GKCJ to represent B of A is sufficient to establish a tripartite attorney-client relationship between Fidelity, B of A, and GKCJ. (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1406 ["In California, it is settled that absent a conflict of interest, an attorney retained by an insurance company to defend its insured under the insurer's contractual obligation to do so represents and owes a fiduciary duty to both the insurer and insured"]; Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 127 (Gulf Ins.) ["Counsel retained by an insurer to defend its insured has an attorney-client relationship with the insurer"]; State Farm Mutual Automobile Ins. Co. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1429 (State Farm Mutual) ["Between the attorney and the insurer who retained the attorney and paid for the defense, there exists a separate attorney-client relationship endowed with confidentiality"].) The principles regarding an insurer's duties to provide counsel for the insured are the same under title insurance policies as under general liability policies. (Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1077; Israelsky v. Title Ins. Co. (1989) 212 Cal.App.3d 611, 620.)"

Joint client: Ins. CO and Insured

Glacier General Assur. Co. v. Superior Court (1979), 95 Cal.App.3d 836 at p. 841 ["matter of common interest" includes any communication re handling calim against insured; Plt/assignee of insured's bad faith claim sought prod of litig file in prior action ]
Glade v. Superior Court(1978), 76 Cal.App.3d 738
American Mutual Liab. Ins. Co. v. Superior Court(1974), 38 Cal.App.3d579

No reservation of rights


Reservation of rights may destroy joint client relationshipif it creates a conflict

Bank of America v. Superior Court (2013),    Cal.App.4th    "A reservation of rights in itself does not create a disqualifying conflict requiring the appointment of Cumis counsel. (James 3 Corp. v. Truck Ins. Exchange (2001) 91 Cal.App.4th 1093, 1108.) "`If the issue on which coverage turns is independent of the issues in the underlying case, Cumis counsel is not required.'" (Ibid.) "[N]ot every reservation of rights entitles an insured to select Cumis counsel. There is no such entitlement, for example, where the coverage issue is independent of, or extrinsic to, the issues in the underlying action [citation] or where the damages are only partially covered by the policy. [Citations.]" (Dynamic Concepts, Inc. v. Truck Ins. Exchange (1998) 61 Cal.App.4th 999, 1006.)"

Bank of America v. Superior Court (2013),    Cal.App.4th  "the right to invoke the conflict would belong solely to B of A. "The right to independent representation paid for by the insurer in the circumstances found in the Cumis decision was expressly stated by the Cumis court to be a right belonging to the insured [citation], not the insured's adversary."

SEE   Civ. Code, § 2860, subd. (d).  Cumis counsel & client duty to disclose to the insurer all information concerning the action except privileged materials relevant to coverage disputes, and timely to inform and consult with the insurer on all matters relating to the action.   Any information disclosed by the insured or by independent counsel is not a waiver of the privilege as to any other party.

Cf.  Rockwell v. Superior Court (1994), 26 Cal.App.4th 1255at p.1267  [Attorney selected by carrier to rep client is not retained or consulted by ins co. w/in 962

State Farm Mutual, 72 Cal.App.4th 1422 [automobile liability policy];

American Mut. Liab. Ins. Co. v. Superior Court,  38 Cal.App.3d 579 [attorney malpractice liability policy].)


Conflicts

At time of selection ?
After selection ?
If opportunity to have cumus counsel ?

Coverage issues

Attorney hired to advise Ins. Co. re coverage not attorney for insured

Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 [no joint client prior to acceptance of coverage]
State Farm Fire & Casualty Co. v. Superior Court (1988),206 Cal.App.3d 1428

Exception limited to commun re matter of common interest

Glacier General Ins. v. Superior Court (1979)95 Cal.App.3d 836 at p.842 [any communication re handling claim against insured]

Trust

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 209 [beneficiary of trust not joint client soley due to relationship as beneficiary]

Condominium

Smith v. Laguna Sur Villas Community Assoc. (2000), 79 Cal.App.4th 639 "...as condominium owners, were members of [the homeowner association], they were not individually named as plaintiffs in the construction defect litigation. Because they did not consult with or retain the Duke, Gerstel law firm, they do not fit within the joint-client exception of Evidence Code section 962.

CONTENTS

CASES
CASE OUTLINE

TOP

Waiver by all holders required

American Mutual Liab. Ins. Co. v. Superior Court(1974), 38 Cal.App.3d579
Glade v. Superior Court(1978),76 Cal.App.3d 738

Communications made in the course of that relationship

If made in presence of other joint client: privileged as to strangers but not as to either client and attorney

Cavanaugh Nailing Mach. Co. v. Cavanaugh (1959), 167 Cal.App.2d 657at p. 660 [R.D.confidentiality lacking ]

If made outside presence of other joint client normally privileged

Glacier General Ins. v. Superior Court (1979), 95 Cal.App.3d 836 at p. 841 [Exception applies & no privilege between clients; limit to matters of common interest]
Glade v. Superior Court(1978), 76 Cal.App.3d 738 [only applies when both clients present]
Cavanaugh Nailing Mach.Co. v. Cavanaugh at p. 660
Morris v. Moran (1960), 179 Cal.App.2d 463 at p. 469 [dictum re privilege remains when one communicates ]
See Aetna, Wortham, , Rockwell

CASES

TOP

Third party claims

Normally both claims of privilege must be overcome

Cf. Physician - Patient re mother /child

Paley v. Superior Court(1993), 18 Cal.App.4th 919
Jones v. Superior Court(1981), 119 Cal.App.3d 534

Breach of Duty Exception [EC 958]

Limited to attorney breaching duty: not subsequent attorney

Brockway v. State Bar of California (1991) 53 Cal.3d 51, 63  “...the attorney-client privilege was sustained as to statements Jones may have made to Waco about the fee agreement. …. whether Jones understood and consented to them. Petitioner maintains that, by complaining to the State Bar about the fee agreement, Jones waived the privilege insofar as it might otherwise apply to relevant communications with Waco. (Citing Evid. Code, § 958.)
Evidence Code section 958 creates an exception to the privilege for communications "relevant to an issue of breach, by the lawyer[,] ... of a duty arising out of the lawyer-client relationship." Contrary to what petitioner claims, the statute is not a general client-litigant exception allowing disclosure of any privileged communication simply because it is raised in litigation. (People v. Lines (1975) 13 Cal.3d 500, 511 [119 Cal. Rptr. 225, 531 P.2d 793]; cf. Evid. Code, §§ 1016 [patient-litigant exception to the psychotherapist-patient privilege], 1020 [breach-of-duty exception to the psychotherapist-patient privilege].) Evidence Code section 958 only authorizes disclosure of relevant communications between a client (e.g., Jones) and an attorney charged with professional wrongdoing (e.g., petitioner). (Schlumberger Limited v. Superior Court (1981) 115 Cal. App.3d 386, 392-393 [171 Cal. Rptr. 413]; Miller v. Superior Court (1980) 111 Cal. App.3d 390, 392-393 [168 Cal. Rptr. 589].) This approach gives the attorney a meaningful opportunity to defend against the charge, but does not deter the client from confiding in other attorneys (e.g., Waco) about the dispute.”

Schlumberger Limited, Petitioner v. Superior Court (1981), 115 Cal.App.3d 386,171 Cal. Rptr. 413. Defendant in legal malpractice sought communications between Plaintiff and other lawyers during period of alleged malpractice and subsequent thereto. Tr.Ct overruled objections based on attorney-client and work product. Rev'd by Ct.App.
“Communications between a client and an attorney representing the client in a malpractice action against a former attorney are privileged and not subject to discovery, and the privilege is not waived by tendering an issue on which the requested information may be relevant.”

Miller v. Superior Court(1980), 111 Cal.App.3d 390, 392. When plaintiff claims malpractice by former attorney the attorney-client privilege as to communications with subsequent attorneys is not waived by asserting lack of knowledge to avoid statute of limitations. Knowledge of party is tendered; not communication from subsequent attorney who might impart knowledge even though that is relevant to knowledge. Tr. Ct rev'd. Citing Lohman v. Superior Court (1978) 81 Cal.App.3d 90 [146 Cal.Rptr. 171]

Limit to communications by client claiming breach

Glade v. Superior Court(1978), 76 Cal.App.3d 738 [case involves the crime / fraud exception designed and expressly applicable to client abuse or misuse of the privilege; ]

Carlson, Collins, Gordon & Bold v. Banducci(1967), 257 Cal.App.2d 212, 227-228. 

"It is an established principle involving the relationship of attorney and client that an attorney is released from those obligations of secrecy which the law places upon him whenever the disclosure of the communication, otherwise privileged, becomes necessary to the protection of the attorney's own rights. (1 Thornton, Attorneys at Law, 127, p. 220; Evid. Code, 958; Arden v. State Bar, 52 Cal.2d 310, 320 [341 P.2d 6]; Canon 37, Canons of Prof. Ethics of the Amer. Bar Assn.) Accordingly, when, in litigation between an attorney and his client, an attorney's integrity, good faith, authority, or performance of his duties is questioned, the attorney is permitted to meet this issue with testimony as to communications between himself and his client. (Evid. Code, 958; Pacific Tel. & Tel. Co. v. Fink, 141 Cal.App.2d 332, 335 [296 P.2d 843]; Fleschler v. Strauss, 15 Cal.App.2d 735, 739 [60 P.2d 193]; see Witkin, Cal. Evidence (2d ed. 1966) 824, p. 771.)"

Deceased client exception [EC 957]

All claim through deceased client
RD claimant claim through estate rather than as adversaries
decedent would want intent known

Paley v. Superior Court(1955), 137 Cal.App.2d 450 modified by statute

Relationship between deceased & dec attorney not contestant and its attorney

Fletcher v. Superior Court 1996), 44 Cal..App.4th 773 p.778

`CONTENTS

CASES
CASE OUTLINE

FORCED ELECTION

A&M Records v. Heilman(1977), 75 Cal.App.3d 554 [conditional order re exclusion of testimony or evid at trial not produced at depo]
Newsom v. City of Oakland (1974), 37 Cal.App.3d 1050
Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 292


TRIAL IMPLICATIONS

Can't claim privilege in discovery & waive at trial

A&M Records Inc v. Heilman (1977), 75 Cal.App.3d 554 [conditional order prohibiting production of testimony or evidence at trial when not produced at depo]
Campaign v. Safeway Stores Inc. (1972), 29 Cal.App.3d 362 p. 365

Preclusion orders

Mylan Laboratories Inc. v. Soon-Shiong (1999), 76 Cal.App.4th 71 [nonparties can assert privilege and obtain a preclusion order based on the privilege without intervening; CF preclusion orders based on the inherent power of the court to control litigation abuses is limited to parties]

Privilege baring action

Corporate Dissolution

Reilly v. Greenwald & Hoffman, LLP (2011) , Cal.App.4th [4th Dist.Div.1, 5/23/11] Corporate derivative action against attorney barred when attorney–client privilege prevented use of evidence in defense. Corporation's outside counsel was sued in derivative action by 49% stockholder for negligent and tortious conduct for facilitating the 51% shareholder's conversion of corporate funds to her own use after the 2 agreed to dissolve the corporation. 51% stockholder was the president, director and chief financial officer of corporation; 4( % stockholder was an officer and director. Corporate counsel provided advice to 51% shareholder / president / chief financial holder re subject of lawsuit. Court “finding” that corporation had not waived attorney-client privilege as to communications between the the 51% stockholder and counsel that are the subject of the lawsuit. Demurrer sustained without leave to amend on grounds that counsel could not defend against claims and that claims against counsel are barred. In a derivative action, the stockholder does not stand in the shoes of the the corporation and cannot waive the privilege. The filing of the action does not waive the privilege.
Dissolved corporation continues to exist for purposes of winding up and defending lawsuits. The holder of the corporate privilege is its successor. EC §953(d) The attorney has a duty to claim the privilege. EC §955. B&P §6068. EC §958 does not apply to corporation.
The issue of a conditional stay approach was not decided.

General Dynamics Corporation v. Superior Court (1994), 7 Cal.4th 1164  [In house counsel claim of wrongful termination]

Solin v. O'Melveny & Myers (2001), 89 Cal.App.4th 451, 107 Cal.Rptr.2d 456  [non-party privilege claim prevents prosecution of  malpractice claim by former lawyer against law firm he retained ]