The Attorney-Client Privilege: How Does it Work, What Does it Mean
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The Attorney-Client Privilege
When a US Person hires an attorney for representation it is important that the client is honest and open with the attorney. Otherwise, it makes it difficult for the attorney to provide the most accurate and best representation that they can. When a person hires an attorney the attorney-client privilege takes hold of the relationship. This means that any information that the client provided to the attorney is protected as confidential — unless of course, the client tells the attorney that they are going to commit a serious crime or hurt somebody. One of the most important aspects of attorney-client privilege confidentiality is that is actually the client who holds the privilege and not the attorney. If the attorney was to violate the attorney-client privilege and publish information either verbally or orally that was communicated in confidence by the client, the tourney could lose its license. The privilege can vary in each state, so let’s take an introductory look at section 954 under the California evidence code.
California Code, Evidence Code – EVID § 954
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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:
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(a) The holder of the privilege;
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(b) A person who is authorized to claim the privilege by the holder of the privilege;
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(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.
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What does this Mean?
It means that subject to section 912, a client— whether or not they are a party to the action — is the holder of the privilege with the attorney. And by having the privilege, the client has the power to refuse to disclose or to prevent another from disclosing the confidential communication between the client and attorney. In terms of who has the privilege, it is either the holder of the privilege or a person who is authorized to claim the privilege by the folder of the coverage –– usually an agent of the client. Another important aspect of the privilege is to note that the power to determine whether the privilege remains in existence on that communication is with the client. In other words, the client can relinquish the privilege whether or not the attorney agrees.
California Code, Evidence Code – EVID § 912
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“(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954(lawyer-client privilege), 966 (lawyer referral service-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergy member), 1035.8 (sexual assault counselor-victim privilege), 1037.5 (domestic violence counselor-victim privilege), or 1038 (human trafficking caseworker-victim 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 legal standing and the opportunity to claim the privilege.”
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What does section (a) Mean?
It means that once a person discloses a significant part of the communication or has consented to allow someone else to disclose it and it would not Downunder coercion such as being threatened, the privileged is waived.
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“(b) Where two or more persons are joint holders of a privilege provided by Section 954(lawyer-client privilege), 966 (lawyer referral service-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), 1037.5 (domestic violence counselor-victim privilege), or 1038 (human trafficking caseworker-victim 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. In the case of the privilege provided by Section 980 (privilege for confidential marital communications), a waiver of the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege.”
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What does section (b) Mean?
This means that when there are two or more persons that hold a privilege on a confidential communication, just because one joint owner waives the privilege does not mean it is waived by the other person or persons.
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“(c) A disclosure that is itself privileged is not a waiver of any privilege.
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What does section (c) Mean?
This means that if he discloses privileged information as part of a privilege disclosure, then making that disclosure does not waive the privilege communication being disclosed.
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“(d) A disclosure in confidence of a communication that is protected by a privilege provided by Section 954(lawyer-client privilege), 966 (lawyer referral service-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), 1037.5 (domestic violence counselor-victim privilege), or 1038 (human trafficking caseworker-victim privilege), when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, lawyer referral service, physician, psychotherapist, sexual assault counselor, domestic violence counselor, or human trafficking caseworker was consulted, is not a waiver of the privilege.
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What does section (d) Mean?
This means privileged communication is made in confidence and is reasonably necessary for the accomplishment of the purpose for which is being made, this is not a waiver of the privilege either.
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