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Attorney-Client Privilege:
What Every Attorney Must Know
By Mark E. Ellis
© 2019, National Business Institute

I. Overview

Contents

I. Overview

II. The Attorney-Client Privilege v. the Duty of Confidentiality v. the Work Product Doctrine

III. The Extent and Boundaries of the Attorney-Client Relationship and the Attorney-Client Privilege

IV. Notable Exceptions to the Attorney-Client Privilege

V. Privilege Waivers

VI. Privilege Logs

The attorney-client privilege is an evidentiary privilege that protects communications between an attorney (or law firm) and the client; it is held by the client and gives rise to a privilege to refuse to disclose communications intended to be confidential between the client and his, her or its lawyer.

The privilege is deemed fundamental to the proper functioning of our system of justice. See e.g. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Brandt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981) (privilege is a product of state and federal common law—no Constitutional basis); Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992). The rationale and policy undergirding the privilege is the encouragement of “full and frank communication between attorneys and their clients. . . {to} thereby promote broader interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends, and that such advice and advocacy depends upon the lawyer being fully informed by the client.” Upjohn, 449 U.S. at 389; Restatement (3rd) Law Governing Lawyers § 68, comment (c).

Legal Malpractice AttorneyCo-author of this article, Mark E. Ellis, is the managing partner of Ellis Law Group, LLP recognized by the attorney-ranking firms Best Lawyers and SuperLawyers as one of the nation's leading trial attorneys in the area of legal malpractice defense. See the Mark Ellis Profile for his detailed curriculum vitae.

To access other articles with topic related to this one, go to our Publications page.

Although the attorney-client privilege, like the fiduciary duty of confidentiality, has its roots in the common law, today the client-attorney privilege is generally governed by state statute, and there are few exceptions and these are generally statutory as well. See Cal. Evi. Code §§ 954, 950 and 910 (comment); U.S. v. United Shoe Machinery Corp. 89 F.Supp 35, 358-359 (D. Mass 1950).

If found applicable, the attorney-client privilege is generally absolute and it applies broadly in the litigation, as well as non-litigation, contexts. Martin v. Valley National Bank, 140 F.R.D. 291, 306 (S.D.N.Y. 1991). In other words, it may be asserted in all proceedings in which testimony may be compelled, including criminal, civil, administrative, regulatory, and disciplinary proceedings. Swidler and Berlin v. United States, 524 U.S. 399, 408-409 (1998).

The privilege is held by the client, who has the sole authority to waive the privilege. Nonetheless, the attorney is required to assert or invoke the privilege when necessary on behalf of the client, even without an express instruction by the client.

There are few exceptions to the privilege. If the privilege applies, compelled disclosure is forbidden regardless of need. In re Grand Jury Invest., 599 F.2d 1224, 1253 (3rd Cir. 1979).

II. The Attorney-Client Privilege v. the Duty of Confidentiality v. the Work Product Doctrine

A. The Fiduciary Duty of Confidentiality

The duty of confidentiality is one of the fiduciary duties owed by an attorney to his or her client; the essential fiduciary duties are generally viewed as twofold:  loyalty and confidentiality. 6068(e) Cal Bus. & Profs. Code § 6068(e)(1).

Like the attorney-client privilege, the duty of confidentiality serves the purpose of contributing to the trust that is the hallmark of the attorney-client relationship whereby the client is able to communicate fully and frankly without the threat of the legally damaging, embarrassing or secret information being shared with others. See Industrial Indemnity Co. v. Great American Ins. Co. (1977) 73 Cal.App.3d 529, 536, 140 Cal. Rptr. 806, 810.

The duty of confidentiality is broader than the attorney-client privilege; it is not subject to the same exceptions. Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621. It includes, but its assertion is not limited to, information passed directly to the lawyer by the client. The duty of confidentiality applies to all information, public or private, that relates to the client and is learned from any source. See Matter of Johnson (Cal State Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 189 (prior felony conviction of client); compare ABA Model Rule 1.9(c)(1) (generally known information).

Likewise, the duty of confidentiality is not limited to legal advice or communications related simply to legal matters. The duty also applies to communications with only potential clients. The duty survives the termination of the attorney-client relationship, and even the client’s death.

B. The Attorney Work-Product Doctrine

The attorney work-product doctrine is distinct from the attorney-client privilege and the fiduciary duty of confidentiality. The work-product doctrine is narrower than either client privilege or the duty of confidentiality.

Work product is generally defined as some type of writing that reflects an attorney’s impressions, plans, conclusions, opinions, legal research, strategy, theories, or the like, and it is normally absolutely protected from discovery or compelled disclosure.

The work-product doctrine, however, may also extend to unwritten opinions or theories of an attorney. Fireman’s Fund Ins. Co. v. Superior Court, 196 Cal.App.4th 1263, 127 Cal. Rptr. 3d 768, 777-779 (2011).

Work-product protection does not lose its protection because it is communicated to the client.

“Qualified” work product may reflect attorney work or investigation, but which is not the attorney’s “brain work” per se. This work product may not be absolutely protected from disclosure. The boundaries are ambiguous. The doctrine is limited in federal court. Fed. Rule Civ. Proc. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 510-511 (1947).

The holder of work-product protection is the attorney, not the client. Work product belongs to the attorney, not the client.

III. The Extent and Boundaries of the Attorney-Client Relationship and the Attorney-Client Privilege

A. Generally

To fall within the attorney-client privilege, the communication must be:

  • Made between a client and a licensed lawyer
  • Intended to be confidential
  • Occur during the course of an attorney-client relationship, or in anticipation of such
  • Made with the attorney in his or her professional (legal) representative capacity

B. Clients

“Clients” may be individuals, corporations, partnerships, limited liability companies, associations, etc., who consult a lawyer in his or her professional capacity, including both persons who are existing clients, and those seeking to become clients. See Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978) 

C. Lawyers

A “lawyer” is defined as a licensed attorney, or someone who the client reasonably believes to be a licensed attorney.

D. Confidential Communication

A communication is protected by the privilege only if it is intended to be confidential—that is, made with the expectation and intention that it will not be disclosed outside the attorney-client relationship.

  • Communications Between Clients and Attorneys are Presumed Confidential

    Communications between the attorney and the client in the course of the professional relationship are generally presumed confidential. The presumption is rebuttable. “Communication” is broadly construed, but the fact that non-privileged facts and information are communicated between a client and an attorney does not make an otherwise non-privileged fact privileged, even if intended to be so. (Note: However, it may fall within the broader duty of confidentiality.)

  • Dual Purpose Communications

    Dual purpose communications are those which relate both to a privileged communication (i.e., legal advice) and a non-confidential subject (e.g., business advice). Such communications are privileged only if the dominant purpose is to further the objectives of the attorney-client relationship, such as legal advice. See Costco Wholesale Corp. v. Superior Court, 47 Cal.4th725, 101 Cal. Rptr. 3d 758, 766 (2009).

  • Communications with Third Parties

    Attorney-client confidential communications include communications made to, or from, third parties if reasonably necessary yo accomplish the purpose of transmitting the information between attorney and client, or in accomplishing the purpose for which the attorney was hired. This includes confidential communications to agents of the client, or to agents of the lawyer, such as associate attorneys, paralegals, legal assistants, and the like. John v. United States, 449 U.S. 383, 391-393 (1981); National Steel Products Co. v. Superior Court, 164 Cal.App.3d 476, 210 Cal.Rptr. 535, 539 (1985); Holles v. Superior Court, 157 Cal.App.3d 1192, 1200, 204 Cal. Rptr. 111, 116 (1984).

    The privilege may apply to the joint defense of multiple clients.  Waller v. Financial Corp. of America, 828 F.2d 579, 583, fn. 7 (9th Cir. 1987).
  • Non-Confidential Information

Non-confidential information or facts are not protected by the attorney-client privilege, even if transmitted between attorney and client, and even if intended to be confidential; this includes:

a. Foundational facts, such as, e.g.:

  • Whether an attorney-client relationship exists
  • Whether information was transmitted in the course of that relationship;
  • The date of an otherwise confidential communication; and
  • The date the attorney-client relationship was formed “when meetings took place.

b. If the underlying facts are not privileged, the transmission of such facts between client and attorney will not make them so.

c. The client’s identity is normally not privileged (but there are circumstances where it may be protected).

d. The terms of a fee agreement may be protected—in California, they are by statute. Business and Professions Code § 6149, and see § 6068. But see United States v. Blackman, 72 F.3d 1418, 1423-1424 (9th Cir. 1995) (nature of fees arrangement and client identity not protected).

E. During the Attorney-Client Relationship

The existence of an attorney-client relationship sufficient to give rise to a duty of confidentiality is generally created by an agreement or contract between the attorney and the client. See Budd v. Nixen, 6 Cal.3d 195, 200 (1971); Nichols v. Keller, 15 Cal.App.App.4th 1672, 1684 (1993); Houston Gen’l Ins. Co. v. Superior Court, 108 Cal.App.3d 958, 964 (1980)

A contract or agreement between attorney and client may be express (in writing) or implied. Neither a written retainer, nor other formal agreement, is required to establish the attorney-client relationship. Budd v. Nixen, 6 Cal.3d 195, 200 (1971); Nichols v. Keller, 15 Cal.App.App.4th 1672, 1684 (1993); Fox v. Pollack, 108 Cal.App.3d 958, 964 (1986).

Since the attorney-client relationship is consensual in nature, it is based upon the consent, express or implied, of the attorney. Houston Gen’l Ins. Co. v. Superior Court, 108 Cal.App.3d 958, 964 (1980); see Malloy v. Fong, 37 Cal2nd 356, 370; Fox v. Pollack, 108 Cal.App.3d 954, 959 (1986) (putative clients cannot unilaterally create attorney-client relationship): Sheinkoph v. Stone, 927 F.2d 1259, 1265-66 (1st Cir. 1991).

The alleged client’s subjective belief as to the existence of an attorney-client relationship is irrelevant unless the attorney has actually agreed to represent the client, or unless the belief is reasonably induced by the lawyer’s conduct or representations. Fox v. Pollack, 108 Cal.App.3d 958, 959 (1986)

The fact that an attorney receives a referral fee from another attorney does not necessarily indicate the existence of an attorney-client relationship. Neel v. Magana , Olney, Levy, Cathcart & Gelfard, 6 Cal.3rd 176, 181 (1971).

An attorney who agrees to undertake a certain task for a client does not incur a duty to perform other services even if closely related to the duty he or she does undertake where the attorney has not been asked or agreed to perform such services. Fox v. Pollack, 108 Cal.App.3d 958, 959 (1986); Kane, Kane & Kritzer, Inc. v. Altagen, 107 Cal.App.3d  36, 42 (1980);  Brandin v. Belcher, 67 Cal.App.3d 997, 1001 (1977); Banerian v. O’Malley, 42  604, 611-12 (1974).

An attorney ethically may limit his or her potential liability for legal malpractice by contractually limiting the representations in its scope or duration. Cal. Rules of Professional Conduct, rule 3-0400A; Nicholas v. Keller, 15 Cal.App.4th 1672, 1684  (1993).

An attorney’s obligation to advise a client does not include a duty to advise on all possible alternatives, no matter how remote or tenuous. Davis v. Damrell, 119 Cal.App.3d 883, 889; Nicholas v. Keller, 15 Cal.App.4th 1672, 1685 (1993).

Unless the agreement between the parties provides otherwise, the attorney-client relationship terminates once the task for which the attorney was retained is concluded. Panattoni v. Superior Court, 203 Cal.App.3d 1092 (1989); Mizrahi v. Miscione, 252 Cal.App.2d 673, 677 (1967).

Information intended to be confidential is protected by the attorney-client privilege if disclosed by a potential client to an attorney during an initial consultation, even if the attorney is not ultimately retained. Barton v. United States 410 F.3d 1104, 1109-1112 (9th Cir. 2005); People v. Gionis, 9 Cal.4th 1196, 1205, 40 Cal.Rptr., 456, 462 (1995).

Statements made to an attorney after representation is declined are not privileged. People v. Gionis, 9 Cal.4th 1196, 1211 (1995).

The privilege may also apply to communications made during prelitigation investigations—look to the dominant purpose of the lawyer’s participation and communications—legal advice given?
See Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal.App.4th 110, 122 Cal. Rptr. 844, 852 (1997).

The privilege covers an investigator working with an attorney.  Kaiser Foundations Hospitals v. Superior Court, 66 Cal,App.4th 1217, 1227-1228, 78 Cal.Rptr,2d 543, 548-550 (1998).

IV. Notable Exceptions To The Attorney-Client Privilege

A. Crime Fraud Exception

Where an attorney’s services are sought to enable or aid anyone in the commission of a crime or fraud, the privilege does not apply.  In re Grand Jury Procs., 867 F.2d 539, 541 (9th Cir. 1989).

B. Violent Crime Exception

In California, the attorney has the option to reveal that the client is reasonably likely to commit a violent criminal act. The attorney must also disclose to the client th 3-100at he will disclose. See Business and Professions Code § 6068(e)(2); Cal. Rule Prof. Conduct 3-100(B).

A. Lawyer's Breach of Duty

An attorney-client privilege is waived as to the attorney when the client sues his or her attorney; the attorney is allowed to defend himself or herself by disclosing otherwise attorney-client privileged information. Dietz v. Meisenheimer & Herron, 177 Cal.App.4th 771, 786, 99 Cal.Rptr.3d 464, 475 (2009). This waiver may not apply to third parties.

B.Waiver for Fee Disputes with Client (See Above)

In re Rindlisbacher, 275 Bankruptcy Rptr. 180, 183 (9th Cir. BAP 1998)

C. Testamentary Intent Waiver

Attorney as (1)  attesting witness to a will, or (2) attorney’s testimony related to a deceased client’s intent under testamentary documents.

D. Express Waiver by the Client

The attorney-client privilege may be waived by the holder (the client) if waiver is voluntary. Failing to timely raise the privilege, or a failure to assert it may constitute waiver. Coerced disclosure does not constitute a waiver.

E. Inadvertent Disclosure

Inadvertent disclosure is generally not deemed a waiver—especially during discovery. State Comp. Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644, 654, 82 Cal.Rptr. 799, 805-806 (1999).

“Claw back” where disclosure in inadvertent.

F. Unnecessary Disclosure

Unnecessary disclosure may constitute waiver where a significant part of the privileged communications is disclosed (reveals specific content).

G. Waiver by Assertion of Advice of Counsel (Limited)

H. Waiver by Untimely Discovery Responses

I. Fundamental Fairness (Implied Waiver)

Where it would be unfair to permit a lawsuit to proceed without a waiver. Mitchell v. Superior Court, 37 Cal.3d 591, 604-605 (1984); Chicago Title Ins. Co. v. Superior Court, 174 Cal.App.3d 1142, 1154 (1985); Merritt v. Superior Court, 9 Cal.App.3d 721, 730-731 (1970). 

VI. Privilege Logs

Privilege logs must supply sufficient information to apprise the other side of the merits of the claim of privilege. Each document for which the privilege is claimed should indicate the date of the document, who the document is between, but only the general description of the subject matter of the communication.

Where the privilege is timely claimed, an inadequate privilege log does not waive the privilege. Catalina Island Club v. Superior Court, 242 Cal.App.4th 1116, 1126, 195 Cal.Rptr. 694, 700 (2015).

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This article is not to be considered legal advice by the author or Ellis Law Group, LLP. Any person or agency with specific legal questions must consult with the legal counsel of their choice.