Introduction

 

“I want to speak to my attorney.” This is one of the most common phrases repeated on crime television shows, but what does it really mean? Most people think of communications with their lawyer as a form of absolute protection. But in reality, the privilege is easily waived. For this reason, whether acting as a client, an attorney or a third party listener, it is vital to understand the meaning and scope of the attorney-client privilege.

 

There are two primary forms of attorney-client privilege in California: confidential communication and the attorney work-product doctrine. For communication between an attorney and client to be privileged, the information must be communicated “for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.” Cal. Evid. Code §951. Conversely, the attorney work-product doctrine renders communications confidential if they constitute “a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories [which are] not discoverable under any circumstances.” Cal. Civ. Proc. Code §2018.030. The doctrine specifies that the content of the communications between an attorney, client, and third party can be a determining factor in its privileged status. To overrule the absolute privilege invoked by this type of communication, the court must “determine[] that denial of discovery will unfairly prejudice the party seeking discovery in preparing the party’s claim.” Cal. Civ. Proc. Code § 2018.030(b).

 

What If The Communication Is Between An Attorney, Client And Consultant?

 

Where a communication is between an attorney, client and third party consultant or construction manager, the privilege hinges upon two main factors: a) the role the third party plays in the ongoing case, and b) the content of the communications. Attorney-client privilege is preserved in the presence of a third party as long as the third party is acting as an agent or channel of information between the attorney and client and the disclosure is “reasonably necessary for the transmission of information or the accomplishment of the purpose for which the lawyer is included, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Cal. Evid. Code §952; see also Cal. Evid. Code §912(d). Disputes often arise over the question of whether the third party presence was “reasonably necessary.” To prove that a communication is “reasonably necessary,” the third party must serve an immediate purpose in the case, a purpose that cannot be filled by the attorney. For example, a third party communication may be reasonably necessary where a physician is required to interpret the client’s condition for the attorney, something the attorney could not do on his own. City and County of San Francisco v. Superior Court, 37 Cal. 2d 227, 234-35 (1951). On the other hand, if the presence of the third party is simply “convenient” rather than necessary, the privilege will be deemed waived. Himmelfarb v. United States, 175 F.2d 924 (1949) (client disclosures made to accountant in front of attorney not privileged in tax evasion case). “Where the presence of a third person is indispensable in order for a communication to be made to an attorney, the policy of the attorney-client privilege will protect the client, that is, his presence is required in order to secure the client’s subjective freedom of consultation.” Himmelfarb, 175 F.2d at 924.

 

Under the attorney work-product doctrine, third party communications that might not otherwise be considered privileged become privileged when met with “an attorney’s impressions, conclusions, opinions, or legal research or theories.” See Coito v. Superior Court, 54 Cal. 4th 480 (2012). For example in Coito, recorded witness interviews were deemed worthy of absolute privilege on the grounds that “a witness’s statements are inextricably intertwined with explicit comments or notes by the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case.” Id. Notwithstanding, the presence of a third party can lead to the client inadvertently waiving her privilege, regardless of whether the content of the communication was privileged.

 

The burden of proof lies with the party claiming the privilege. Wellpoint Health Network, Inc., et. al. v. Superior Court, 59 Cal. App. 4th 110 (1997). The party claiming privilege has to demonstrate both the third party’s purpose in the case and how this purpose is vital to ensuring that the attorney can fulfill their duties to the fullest extent and “further the interest of the client in the consultation.” Cal. Evid. Code § 952.

 

What If The Communication Is Only Between An Attorney And A Consultant?

 

The privilege can still be asserted where communications are only between an attorney and a consultant (and the client is not present). The courts have reasoned that “the communications of the attorney’s agent to the attorney are within the privilege, because the attorney’s agent is also the client’s sub-agent and is acting as such for the client.” City and County of San Francisco, 37 Cal. 2d at 234-35. Similarly, reports and materials provided by an expert or consultant to the attorney are considered privileged until the consultant officially becomes a witness. See Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067 (1994); Armenta v. Superior Court, 101 Cal. App. 4th 525 (2002). Once the consultant is designated as a witness, “the opponent may seek disclosure of the reports upon showing good cause. [But if the] reports embrace counsel’s impressions and conclusions, the work-product doctrine gives absolute protection to that information.” Shadow, supra.

A consultant’s notes may also be included in the work-product doctrine. Richard Rodriguez, et al. v. McDonnell Douglas Corporation, 87 Cal. App. 3d 626 (1978) overruled on other grounds in Coito, 54 Cal. 4th at 480. In Rodriguez, a defense attorney’s investigator’s notes were improperly admitted since they included the investigator’s privileged comments. Id. Even if the notes are based on a non-privileged topic, if they are “intertwined” with the agent or attorney’s observations, opinions, or thoughts on the case, the notes as a whole are inadmissible. Id.; see also Zerlene Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 (2007)(firm dismissed from case due to use of documents that included privileged notes from opposing counsel).

 

What If The Communication Is Only Between A Client And A Consultant?

 

When analyzing communications between a client and a consultant without the presence of an attorney, asserting privilege depends on the role the third party plays in the case. “A lawyer at times may desire to have a client reveal information to an expert consultant in order that the lawyer may adequately advise his client. The inclusion of the words ‘or the accomplishment of the purpose for which the lawyer is consulted’ assures that these communications too are within the scope of privilege.” 7 Cal. L. Rev. Comm. Reports 1 (1965). Moreover, “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 privilege.” Cal. Evid. Code §912(d). Notwithstanding this interpretation of the Code, there is little case law supporting privilege as to communications between a consultant and client. And, as demonstrated in Chadbourne, even previously privileged confidential material, if later communicated between a client and consultant, can result in a waiver. Thus, direct communications between clients and consultants without an attorney should be carefully scrutinized with added caution if the communications include sensitive information.

 

How Do I Keep My Correspondence Privileged?

 

The safest way to communicate with and among attorneys, clients, and consultants is to: a) have the attorney present at all times as to not inadvertently waive privilege by breaching confidentiality; b) utilize the work-product doctrine; and c) keep to a minimum the amount of consultants or third parties allowed into attorney-client discussions.

 

Circumstances for privilege between a client and consultant are few. There are more options and justifications for privilege if an attorney is present. Communications between all three parties can be protected given the “indispensable” nature of the consultant or the showing of two separate privileged communications — one between attorney and consultant and one between attorney and client. Either way, the simplest route is to always have the lawyer present.

 

When having a lawyer present is unrealistic, the work-product doctrine can be a powerful tool. Due to the broad definition of work-product set forth in Coito, it is clear that communications intertwined with attorney work-product are subject to absolute privilege. Most communications between attorneys and either clients or consultants include at least a few intertwined observations or impressions, either explicit or implicit, akin to case theories, lines of inquiry or question selection. In order to create and maintain a work-product privilege, attorneys’ clients and consultants should seek to include those “attorney impressions, conclusions, opinions, legal research or theories” in each of the communications exchanged, including email threads.

 

Attorneys and clients who wish to keep their correspondence privileged should also attempt to limit the number of third parties involved in attorney-client communications. Be careful who and how many people you “cc” in your case emails. Adding too many non-essential parties to the privileged discussion could be interpreted as a breach of confidentiality and would subsequently waive the client’s privilege. Remember in order to involve a third party, the client has to be able to prove that “[the third party’s] presence is required in order to secure the client’s subjective freedom of consultation.” Himmelfarb, supra. The more parties involved, the more difficult it becomes to prove each third party’s presence is “required,” thus jeopardizing the attorney-client privilege.