Under California Evidence Code 954, you do not need to disclose any confidential communications between you and your attorney in a criminal jury trial.1 This is what is known as the “lawyer-client privilege” (or the “attorney-client privilege”).
Not only that, but the lawyer-client privilege means that your attorney may not disclose any such confidential communications either.2
For an attorney-client relationship to be effective, the client must be able to share all relevant information with his/her lawyer without worrying that it may be used against him/her in court.
Therefore, the lawyer-client relationship is one of the most robust privileges in California evidence law.4
Here are some examples of situations in which the attorney-client privilege will protect information from disclosure in a criminal case:
- A man is arrested for California DUI. He hires a criminal defense attorney and quickly admits to her that he had way too much to drink before he drove. She reassures him that she will do her best to help him plead his charges down to a “ wet reckless.” The man's attorney may not disclose the content of their conversation to anyone in the court process.
- A woman is charged with Penal Code 476 PC check fraud. She meets with an attorney from the local public defender's office. They discuss her case, and she provides information on her financial status to see is eligible for help. It turns out that she is not eligible and the PD cannot represent her. Still, the attorney-client privilege protects this conversation from disclosure.
The lawyer-client privilege does not protect every communication between an attorney and his/her client. There are two major exceptions to the privilege.
First, the attorney-client privilege does not apply when the client seeks the lawyer's assistance in carrying out or planning a crime or a fraud.5
Second, there is no lawyer-client privilege if the lawyer reasonably believes that disclosure of a confidential client communication is necessary to prevent death or substantial bodily harm.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:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The lawyer-client privilege is set out in Evidence Code 954. This statute provides that:
- A client does not need to disclose any confidential communications between him/herself and his/her attorney that take place within the lawyer-client relationship; and
- The client may also prevent the attorney (or another third party) from disclosing such confidential communications.7
In addition, the attorney is required to “claim the attorney-client privilege” (that is, refuse to disclose the privileged communications) whenever anyone seeks to get him/her to disclose them.8
Example: Nicole is a college student who earns a little pocket money by selling marijuana. Eventually she is arrested and charged with Health & Safety Code 11352 HS - sales of a controlled substance.
Nicole has never been involved with the criminal justice system before and is terrified. She hires Robert, an experienced criminal defense attorney. But she is reluctant to tell him the truth about her marijuana sales, for fear that he might disclose this information if she fires him.
Eventually Robert explains to Nicole that everything she tells him is protected by the attorney-client privilege. 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
For purposes of the California lawyer-client privilege, the term “lawyer” means
- anyone authorized to practice law in California, any other state, or any nation, and
- anyone whom the client reasonably believes is authorized to practice law in California, any other state, or any nation.11
Example: Ara, an Armenian-American who has an import-export business, is facing California money laundering charges. The charges are complicated and involve interactions between American and Armenian law.
Ara consults with Vartan, an immigrant from Armenia who claims to be a licensed attorney in Armenia. Ara reveals many of the details about his case to Vartan.
It later emerges that Vartan does not have any legal training—and is not authorized to practice law in Armenia.
However, Ara's communications with him are still protected by the lawyer-client privilege. This is because Ara reasonably believed he was licensed to practice law somewhere.
In addition, the term “lawyer” for 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: John has been charged with Penal Code 187 murder. He is awaiting his trial in county jail.
In jail, John meets Mario. Mario has been in jail for years, has done some legal research on his own, and has filed a habeas corpus petition on his own behalf.
John confesses to Mario that he did commit the first-degree murder he was charged with but wants to get his charged reduced. John asks for Mario's help in filing a habeas corpus petition and other legal forms, and Mario agrees.
Then Mario finds out that John's victim was an elderly man and decides he doesn't want to help John anymore. He tells the prosecutor about John's confession.
Mario is allowed to reveal John's confession in spite of the lawyer-client privilege. This is because Mario is not a licensed attorney and never gave John any reason to believe he was.14
For purposes of the attorney-client privilege, a “client” is defined as anyone who consults a lawyer either
- to secure legal advice or services from him/her, or
- to retain (hire) him/her.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. Conversations you have with an attorney when you are considering retaining him/her—but have not yet done so—are still covered by the privilege.17
Example: Corey is charged with grand theft auto for allegedly stealing a car. Part of his defense is that he actually purchased the stolen car in good faith.
Corey consults with a public defender to see if he meets the eligibility criteria for state-appointed counsel. He signs a form setting out his financial assets.
Later, the prosecutor tries to use that form to prove that Corey did not have the money to purchase the car he is supposed to have stolen.
But the prosecutor may not do so. Corey signed it before the public defender was representing him—but while he was consulting with the public defender about possibly representing him.
This means the form is covered by the lawyer-client privilege.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
In other words, even if you fire your attorney or s/he terminates the relationship (e.g., for nonpayment of fees), s/he still may not reveal anything you told him/her in confidence while s/he was your attorney.
The attorney-client privilege covers only confidential communication between an attorney and a client.20
This means it covers only information (including legal opinions and work product) that is disclosed in confidence—through methods that (as far as the client is aware) will not disclose the information to anyone but:
- The attorney, and
- Third parties who are present to further the interest of the client in the consultation, or to whom disclosure is reasonably necessary to transmit the information or accomplish the purpose for which the lawyer is consulted.21
Example: Miguel is working with a criminal defense attorney to fight Penal Code 273.5 - corporal injury on a spouse charges.
Miguel's English is poor, so his attorney has a Spanish-English interpreter present at all their consultations. A paralegal who works for the criminal defense firm is present at many of the consultations, taking notes.
Also, Miguel's attorney shares details about his case with a forensic medical consultant, who will help them show at trial that Miguel could not have inflicted the injuries in question.
All of these people are involved only because they are essential to the lawyer's effective representation of Miguel.
Thus, the communications between Miguel and his attorney are still confidential—and still subject to the attorney-client privilege.
As a general rule, any communications between a person and their attorney are presumed to be confidential—and thus covered by the lawyer-client privilege. If the prosecutor wants to argue that they are not, it is his/her burden to prove it.22
In some cases, documents or facts that are public information can be considered “confidential communication.”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.
Obviously, these documents themselves are not confidential. But the fact that your attorney gave them to you is—and cannot be disclosed under the lawyer-client privilege.24
Example: Carlos is charged with Penal Code 211 robbery. He hires Linda, a criminal defense attorney, to defend him.
Later, Carlos is charged with murdering a fellow jail inmate.
The court subpoenas Linda to ask her whether she showed Carlos a copy of his arrest report while he was in jail. The prosecutor believes that information in the arrest report could have provided a motive for Carlos to kill the other inmate.
But that information is protected by the lawyer-client privilege, and Linda does not need to reveal it. The arrest report is not confidential—but what Linda did and did not tell her client is.25
However, this does not mean that a client may make a document that already exists confidential simply by delivering it to his/her attorney.26
As a general rule, documents prepared by the client are confidential only if they were prepared specifically for the attorney and/or the representation.27
Communications never delivered
The attorney-client privilege can cover communications that were intended for an attorney—even if they never actually reached him/her.28
Example : Larry is being charged with murder. While in jail awaiting his trial, he writes a letter to the public defender in which he confesses to the murder and exonerates two co-defendants.
Later, the letter is seized from Larry's cell before he has a chance to deliver it to the public defender. The prosecution wants to introduce it into evidence against him.
But they may not do so. The letter is covered by the lawyer-client privilege because Larry intended it as communication with his attorney—even though it was never delivered.29
The lawyer-client privilege doesn't 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 or intercepted them without your consent.30
According to Hemet criminal defense attorney Michael Scafiddi31:
“You can assert the lawyer-client privilege against anyone who is privy to confidential communications with your attorney—even if that person was not a party to the attorney-client relationship.
Let's say 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 testify about what they heard or read due to the privilege.”
There are two major exceptions to the California lawyer-client privilege under the California Evidence Code. These are:
The attorney-client privilege does not apply to any communications between a client and his/her attorney that are made in order to enable someone to
- commit a crime or fraud, or
- plan a crime or fraud.32
In other words, you are not allowed to claim the attorney-client privilege to the extent you are using an attorney to help you with ongoing criminal activity.
Example: Jesse is a drug manufacturer represented by Saul, a criminal defense attorney who understands the details of Jesse's operation.
Jesse is arrested and charged with Health & Safety Code Section 11379.6 HS - manufacturing a controlled substance. His former partner, Walter, is planning to testify against him.
Jesse decides to use a hit man to intimidate Walter into renouncing his plans to testify. Saul helps him find and negotiate with a hit man.
Because Saul is helping Jesse plan the crime of Penal Code 136.1 PC - dissuading a witness, none of their communications related to this plan are protected by the lawyer-client privilege.
The privilege for attorney-client confidential communications also will not apply in situations where the attorney believes that:
- Someone is going to commit a criminal act that will cause death or substantial bodily harm to any individual, and
- 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 that cannot be prevented. It only applies if the lawyer thinks that his/her disclosure will prevent the criminal act.34
Example: Chan is being charged with assault with a deadly weapon for allegedly attacking his ex-girlfriend.
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 reports this statement to the prosecutor and asks to be relieved of his position as Chan's attorney.
Mark did not violate the lawyer-client privilege by reporting what Chan said—because he had reason to believe the witnesses could be killed or injured if he did not act.35
In addition to the exceptions to the privilege discussed above, you can also waive—that is, eliminate—the lawyer-client privilege by voluntarily doing either of the following:
- Disclosing a significant part of the privileged communication between you and your lawyer to a third party, or
- Consenting to the disclosure of that privileged communication by anyone else.36
Example: Henry has been charged with Penal Code PC - 261 rape but argues that the sex was consensual.
The events giving rise to the charges are complicated and ambiguous, and Henry prepares a lengthy written summary of them for his criminal defense attorney.
Ordinarily, that summary would be protected by the lawyer-client privilege. But Henry then posts that summary on his personal blog so that his friends can see his side of the story.
Because Henry disclosed the summary of events voluntarily, that summary is no longer protected by the lawyer-client privilege. (However, other things he shares in confidence with his lawyer still are.)
And if you fail to claim the attorney-client privilege in a court proceeding where you have the right to do so, you will be deemed to have consented to the disclosure of privileged information (and thus waived 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.
Call us for help…
If you have additional questions about the lawyer-client privilege in California, or you would like to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Evidence Code 954 EC – Lawyer-client privilege. (“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.
The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons. The word “persons” as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.”)
2 See same.
See also Evidence Code 955 EC – When lawyer required to claim [attorney-client] privilege. (“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.”)
3 See People v. Lucas (1995) 12 Cal.4th 415, 436. (""A criminal defendant is guaranteed the right to the assistance of counsel [which includes the attorney-client privilege] by both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, section 15.)")
4 See Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599. (“While it is perhaps somewhat of a hyperbole to refer to the attorney-client privilege as ‘sacred,' it is clearly one which our judicial system has carefully safeguarded with only a few specific exceptions.”)
5 Evidence Code 956 EC – Exception [to the lawyer-client privilege]: Crime or fraud. (“There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.”)
6 Evidence Code 956.5 EC – Exception [to the lawyer-client privilege]: Prevention of criminal act likely to result in death or substantial bodily harm. (“There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.”)
7 Evidence Code 954 EC – Lawyer-client privilege, endnote 1, above.
8 Evidence Code 955 EC – When lawyer required to claim [attorney-client] privilege, endnote 2, above.
9 Evidence Code 980 EC – Confidential marital communication privilege [compare to lawyer-client privilege]. (“Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.”)
10 Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities [compare to lawyer-client privilege]. (“Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist 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. (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.”)
11 Evidence Code 950 EC – Lawyer [for purposes of attorney-client privilege]. (“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.”)
12 Evidence Code 954 EC – Lawyer-client privilege, endnote 1, above.
13 People v. Velasquez (1987) 192 Cal.App.3d 319, 328. (“In the instant case, appellant failed to meet his burden of showing the existence of an attorney-client relationship. To come within the privilege, appellant would have had to believe he was talking to a lawyer or a person he reasonably believed to be a lawyer. However, appellant never testified, either at trial or the pretrial hearing on the motion to exclude Robles from testifying, that he believed Robles was an attorney. Rather, he testified he never discussed diminished capacity or the circumstances of his case with Robles. Thus, the trial court correctly determined no attorney-client relationship existed and, therefore, no attorney-client privilege existed as to conversations between the appellant and his fellow inmate.”)
14 Based on the facts of the same.
15 Evidence Code 951 EC – Client [for purposes of attorney-client privilege]. (“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.”)
16 See same.
17 See same.
18 Loosely based on People v. Canfield (1974) 12 Cal.3d 699.
19 Evidence Code 954 EC – Lawyer-client privilege, endnote 1, above.
21 Evidence Code 952 EC – Confidential communication between client and lawyer [for purposes of lawyer-client privilege]. (“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.”)
22 People v. Gardner (1980) 106 Cal.App.3d 882, 887-88. (“In this connection we note that a communication made in the course of an attorney-client relationship is presumed confidential [and so covered by lawyer-client privilege] and the opponent of the privilege bears the burden of proof to establish lack of confidentiality.”)
23 In re Jordan (1974) 12 Cal.3d 575, 580. (“The People argue that, even under the rationale of our decision in Jordan, supra, those printed enclosures which are publications cannot be regarded as communications from anyone except the author or writer. This contention is not persuasive, particularly in light of the broad definition of “confidential communication” set forth in section 952 of the Evidence Code [part of the lawyer-client privilege]. That section in pertinent part provides: “As used in this article, 'confidential communication between client and lawyer' means information transmitted between a client and his lawyer in the course of that relationship ... and includes a legal opinion formed and the advice given by the lawyer ....” (Italics added.) Certainly a law review article or a newspaper clipping of potential use to the inmate-client is information of the type properly protected by the privilege. Nor are we persuaded by the People's contention that a publication which is in the public domain is somehow per se nonconfidential. Once an attorney has determined that a particular publication is relevant to his inmate-client's case, that publication may become an integral part of the attorney's legal advice or strategy and, as such, it would be entitled to section 2600, subdivision (2), protection.” )
24 See same.
25 Based on In re Navarro (1979) 93 Cal.App.3d 325.
26 City of Los Altos v. Superior Court, 2004 WL 848193 (Cal.App. 6 Dist.), at *4. (“The attorney-client privilege “‘“does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney.” ‘ ... ‘[T]ransmission alone, even where the parties intend the matter to be confidential, cannot create the privilege if none, in fact, exists.' “ ( 2,022 Ranch v. Superior Court, supra, 113 Cal.App.4th at p. 1388.) More specifically, documents that are independently prepared by a party ‘do not become privileged communications ... merely because they are turned over to counsel.' “ (Ibid., italics added; Wellpoint Health Networks, Inc. v. Superior Court, supra, 59 Cal.App.4th at p. 119.)”)
27 Same, at *3. (“Thus, for the communication to be protected [by the lawyer-client privilege] “the dominant purpose must be for transmittal to an attorney ‘in the course of professional employment.' [Citations.]””)
28 People v. Gardner, endnote 22, above, at 887. (“It is thus apparent that if the contents of the letter which Gardner wrote to the public defender had been communicated in person to a representative of the defender's office, the communication would have been protected by the [lawyer-client] privilege. The fact that the communication was in the form of an undelivered letter requires, in our view, no different result.”)
29 Based on the facts of the same.
30 Evidence Code 954 EC – Lawyer-client privilege, Law Revision Commission Comments (“Eavesdroppers. Under Section 954, the lawyer-client privilege can be asserted to prevent anyone from testifying to a confidential communication. Thus, clients are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential communications between lawyer and client.”)
31 Hemet criminal defense attorney Michael Scafiddi uses his former experience as an Ontario police officer to represent clients in San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville.
32 Evidence Code 956 EC – Exception [to the lawyer-client privilege]: Crime or fraud, endnote 5, above.
33 Evidence Code 956.5 EC – Exception [to the lawyer-client privilege]: Prevention of criminal act likely to result in death or substantial bodily harm, endnote 6, above.
34 See same.
35 Based on People v. Dang (2001) 93 Cal.App.4th 1293.
36 Evidence Code 912 EC – Waiver of privilege. (“(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.”)