Attorney-Client Privilege in California – Evidence Code § 954

The California attorney-client privilege under Evidence Code § 954 ensures that any private communication between you and your attorney remains confidential and protected from disclosure to any third party.¹ There are two main exceptions to this rule:

1. When you seek the lawyer’s assistance in carrying out or planning a crime or a fraud.²
2. If the lawyer reasonably believes that disclosure of confidential attorney-client communication is necessary to prevent death or substantial bodily harm.³

The attorney-client privilege is one of the most robust privileges in California evidence law.⁴ This is because – for legal representation to be effective – you must be able to share all relevant information with your lawyer without worrying that prosecutors may use it against you in court.⁵

Examples

Here are some scenarios in which the attorney-client privilege will protect information from disclosure in a criminal case:

• A DUI arrestee admits to her attorney that he had way too much to drink before he drove. The attorney may not disclose the content of their conversation to anyone in the court process.
• A woman provides information to the public defender on her financial status. It turns out that she is not eligible for a public defender, though the attorney-client privilege protects this information from disclosure.⁶

In order to help you better understand the lawyer-client privilege in California criminal law, our California criminal defense attorneys will address the following:

• 1. What is the lawyer-client privilege?
  • 1.1. Definition of a “lawyer”
  • 1.2. Definition of a “client”
  • 1.3. Definition of “confidential communication”
  • 1.4. Applies to eavesdroppers
• 2. What are exceptions to the lawyer-client privilege?
  • 2.1. Crime or fraud
  • 2.2. Preventing death or substantial physical harm
• 3. What is a waiver of the attorney-client privilege?
• Additional reading

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the lawyer-client privilege?

The lawyer-client privilege is set out in Evidence Code 954. This statute provides that:

1. You do not need to disclose any confidential communications between yourself and your attorney that take place within the lawyer-client relationship; and
2. You may also prevent the attorney (or another third party) from disclosing such confidential communications.⁷

In addition, the attorney must “claim the attorney-client privilege” (that is, refuse to disclose the privileged communications) whenever anyone seeks to get them to disclose them.⁸

Example: Nicole is reluctant to tell her attorney Robert about how she had been selling marijuana on the side. Robert explains that the attorney-client privilege protects everything she tells him. Not only does he not need to testify about anything she tells him confidentially in the context of their relationship—he is not allowed to do so by law.

The lawyer-client privilege is one of several privileges in California evidence law that prevent the disclosure of certain confidential information in a court case. Other such evidentiary privileges include:

• The marital communications privilege (which applies to communications between spouses),⁹ and
• The psychotherapist-patient privilege (which applies to communications between a patient and a mental/emotional health therapist).¹⁰

1.1. Definition of a “lawyer”

For purposes of the California lawyer-client privilege, the term “lawyer” means

• anyone who has authorization to practice law in California, any other state, or any nation, and
• anyone whom the client reasonably believes has authorization to practice law in California, any other state, or any nation ¹¹

Example: Ara consults with Vartan, who claims to be a licensed attorney. It later emerges that Vartan does not have any legal training. However, the lawyer-client privilege still protects Ara’s communications with him because Ara reasonably believed he had a license to practice law.

In addition, the term “lawyer” for the purpose of the attorney-client privilege also includes

• a California law firm/law corporation, and
• all the members of the California State Bar who work for that firm.¹²

However, the lawyer-client privilege does not extend to communications with “jailhouse lawyers”—or other people who offer legal advice without having a license to do so.¹³

Example: Convicted murderer John confesses to fellow inmate Mario that he did commit murder and asks for Mario’s help in filing a habeas corpus petition. Mario may reveal John’s confession to prosecutors in spite of the lawyer-client privilege. This is because Mario has no license to practice as an attorney and never gave John any reason to believe he had.¹⁴

1.2. Definition of a “client”

For purposes of the attorney-client privilege, a “client” is anyone who consults a lawyer either

• to secure legal advice or services from them or
• to retain (hire) them.¹⁵

A client may consult an attorney either

• personally or
• through an authorized representative.¹⁶

This means that the lawyer-client privilege may begin to apply before you have even hired an attorney. The privilege covers conversations you have with an attorney when you are considering retaining them—but have not yet done so.¹⁷

Example: Corey consults with a public defender to see if he meets the eligibility criteria for counsel that the state appoints. He signs a form setting out his financial assets. The lawyer-client privilege covers the form.¹⁸

The lawyer-client privilege continues to protect your communications with your attorney even after the attorney-client relationship has ended (as long as the communications took place while it still existed).¹⁹

Even if you fire your attorney or they terminate the relationship (such as for nonpayment of fees), they still may not reveal anything you told them in confidence while they were your attorney.

1.3. Definition of “confidential communication”

The attorney-client privilege covers only confidential communication between you and your attorney.²⁰

This means it covers only information (including legal opinions and work product) that you reveal in confidence through methods that (as far as you are aware) will not disclose the information to anyone but:

1. The attorney, and
2. Third parties your attorney uses in your representation, such as administrative assistants and hired experts.²¹

Example: Miguel’s attorney has a Spanish-English interpreter and paralegal present at all their consultations. The communications between Miguel and his attorney are still confidential and subject to the attorney-client privilege. The interpreter and paralegal also cannot disclose the confidential information.

As a general rule, any communications between you and your attorney are presumably confidential—and thus the lawyer-client privilege covers them. If the prosecutor wants to argue that they are not, it is their burden to prove it.²²

Pre-existing documents

In some cases, documents or facts that are public information are “confidential communications.”²³

Let’s say, for example, that your attorney gives you a copy of

• your arrest report, indictment, or other public documents in your case, or
• a statute, case, law review article, or other legal research item.

These documents themselves are not confidential.²⁴ Though the fact that your attorney gave them to you is confidential under the lawyer-client privilege.²⁵

However, this does not mean that you may make a document that already exists confidential simply by delivering it to your attorney.²⁶ As a general rule, documents that you prepare are confidential only if you prepared them specifically for the attorney and/or the representation.²⁷

Communications never delivered

The attorney-client privilege can cover communications that the client intended for an attorney—even if they never actually reached them.²⁸

Example: While in jail awaiting his trial, Larry writes a letter to the public defender in which he confesses to the murder. The jail guard seizes the letter, and the prosecution wants to introduce it into evidence against him. Luckily for Larry, the lawyer-client privilege covers the letter because he intended it as communication with his attorney.²⁹

1.4. Applies to eavesdroppers

The lawyer-client privilege does not only prevent disclosure of confidential communications by

• you or
• your attorney.

It also allows you to prevent disclosure of these communications by eavesdroppers (Penal Code 632 PC)—that is, people who overheard, wiretapped or otherwise intercepted them without your consent.³⁰

Example: A jail guard eavesdrops on you conferring with your attorney. Or your wife sneaks into your email account and reads something you received from your lawyer. These people will not be able to testify about what they heard or read due to the privilege.³¹

2. What are exceptions to the lawyer-client privilege?

There are two major exceptions to the lawyer-client privilege under the California Evidence Code, as discussed below.

2.1. Crime or fraud

You may not claim the attorney-client privilege to the extent you are using an attorney to help you with ongoing criminal or fraudulent activity.³²

Example: Jesse decides to use a hitman to intimidate a state witness into renouncing his plans to testify against Jesse. Jesse’s lawyer Saul helps Jesse find and negotiate with a hitman. Because Saul is helping Jesse plan the crime of dissuading a witness, the lawyer-client privilege is protecting none of their communications related to this plan.

2.2. Preventing death or substantial physical harm

The privilege for attorney-client confidential communications also will not apply in situations where the attorney believes that:

1. Someone is going to commit a criminal act that will cause death or substantial bodily harm to any individual, and
2. Disclosure of the confidential communication is necessary to prevent that act.³³

Note that this exception does not apply to criminal acts causing death or bodily harm that

• have already been committed, or
• are not preventable.

It only applies if the lawyer thinks that their disclosure will prevent the criminal act.³⁴

Example: Chan tells his criminal defense lawyer, Mark, that he plans to try to “pay off” certain witnesses who will be testifying against him—and that, if the bribes don’t work, he will “whack” them. Mark did not violate the lawyer-client privilege by then reporting what Chan said—because he had reason to believe that Mark would kill or injure witnesses if he did not act.³⁵

3. What is a waiver of the California attorney-client privilege?

In addition to the exceptions to the privilege we discussed above, you can also waive—that is, eliminate—the lawyer-client privilege by voluntarily doing either of the following:

1. Disclosing a significant part of the privileged communication between you and your lawyer to a third party, or
2. Consenting to the disclosure of that privileged communication by anyone else.³⁶

Example: Prosecutors charged Henry with rape. He prepares a lengthy written summary of the case for his criminal defense attorney but then posts it on his blog. Because Henry disclosed the summary of events voluntarily, the lawyer-client privilege no longer protects that summary. (However, other things he shares in confidence with his lawyer still are.)

If you fail to claim the attorney-client privilege in a court proceeding where you have the right to do so, the court will deem you to have consented to the disclosure of privileged information (“waiver of the privilege”) in that proceeding.³⁷

For this reason, it is important to speak to your criminal defense attorney before discussing aspects of your case with anyone else.

Additional reading

For more in-depth information, refer to these scholarly articles:

• The Attorney-Client Privilege and Former Employees – Catholic University Law Review.
• The Economics of the Attorney-Client Privilege: A Comprehensive Review and a New Justification – Ohio Northern University Law Review.
• Captive without Counsel: The Erosion of Attorney-Client Privilege for Incarcerated Individuals – UCLA Law Review.
• Joint Representations and the Attorney-Client Privilege – University of Memphis Law Review.
• Two Rights Collide: Determining When Attorney-Client Privilege Should Yield to a Defendant’s Right to Compulsory Process Or Confrontation – American Criminal Law Review.

Legal References: