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Summer 1994 Attorney-Client Privilege Ellen Kreitzberg Santa Clara University School of Law, [email protected]

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Recommended Citation Attorney-Client Privilege, 6 California Defender 2-23 (Summer/Fall 1994)

This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. CALIFORNIA D E FEN D E _R ______

The Attorney-Client Privilege

by

Ellen Kreitzberg, Professor of Law Santa Clara University School of Law

Copyright 1994 by Matthew Bender & Company. Reprinted with permission from the California Criminal Trial Guide, to be published Fall, 1994. All rights reserved.

TABLE OF CONTENTS H. Protection for Opinion Work through an authorized representa­ Product applies only to writings tive, consults a lawyer for the pur­ I. AnORNEYoCLIENT PRIVILEGE pose of retaining the lawyer or se­ 1. Statements of Witnesses are not curing legal service or advice from A. Statutory Authority protected as work product him in his professional capacity, and includes an incompetent (a) who B. Attorney-Client Privilege: Rationale J. Work Product protection extends to himself so consults the lawyer or (b) and Scope work of agents of attorney whose guardian or conservator so consults the lawyer in behalf of the C. Waiver of Attorney-Client Privilege K. Work Product privilege may be incompetent. waived D. Laying Foundation to Establish 3. Evidence Code section 952 (Confi­ Existence of Attorney-Client L. The "fraud" exception to attorney­ dential Communication Between Privilege client privilege does not apply to Client and Lawyer Defined) states: opinion work product E. Reciprocal Discovery and the Effects As used in this article, "confidential of Proposition 115 on the Attorney­ M. Work Product protections continues communication between client and Client Privilege even after the case is over lawyer" means information trans­ mitted between a client and his la w­ F. Ethical Considerations N. Laying Foundation to Establish yer in the course of that relationship Existence of Work Product and in confidence by a means Protection which, so far as the client is aware, II. AnORNEY'S WORK PRODUCT discloses the information to no third PROTECTION persons other than those who are present to further the interest of the A. Statutory Authority client in the consultation or those to I. AnORNEYoCUENT PRIVILEGE whom disclosure is reasonably nec­ B. Work Product Protection - General (EVIDENCE CODE SECTIONS 9&0.962] essary for the transmission of the in­ formation or the accomplishment of C. Adoption of Work Product Rule in A. Statutory Authority the purpose for which the lawyer is California 1. Evidence Code section 950 (Lawyer consulted, and includes a legal opin­ Defined) states: ion formed and the advice given by D. Effects of PropOSition 115 the lawyer in the course of that rela­ As used in this article, "lawyer" tionship. E. The Constitutionality of the Discov­ means a person authorized, or rea­ ery and Work Product Doctrine sonably believed by the client to be 4. Evidence Code section 953 (Holder authorized, to practice law in any of Privilege Defined) states: F. Attorney-Client Privilege and Work state or nation. Product Distinguished As used in this article, "holder of the 2. Evidence Code section 951 (Client privilege" means: G. Work Product Protection applies to Defined) states: (a) The client when he has no an attorney's impressions, conclu­ guardian or conservator. sions, opinions, legal research or As used in this article, "client" (b) A guardian or conservator of theories means a person who, directly or the client when the client has a

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guardian or conservator. when the communication is sought ticle as to a communication relevant (c) The personal representative of to be disclosed and is authorized to to an issue concerning the intention the client if the client is dead. claim the privilege under subdivi- or competence of a client executing (d) A successor, assign, trustee in sion (c) of Section 954. an attested document of which the dissolution, or any similar rep- lawyer is an attesting witness, or resentative of a firm, associa- 7. Evidence Code section 956 (Services concerning the execution or attesta- tion, organization, partnership, of Lawyer Obtained to Aid in Com- tion of such a document. business trust, corporation, or mission of Crime or Fraud) states: public entity that is no longer in 12.Evidence Code section 960 Unten- existence. There is no privilege under this ar- Hon of Deceased Client With Re- ticle if the services of the lawyer spect to Writing Affecting Property 5. Evidence Code section 954 (Who were sought or obtained to enable or Interest) states: May Claim Privilege) states: aid anyone to commit or plan to commit a crime or a fraud. There is no privilege under this ar- Subject to Section 912 and except as ticle as to a communication relevant otherwise provided in this article, 8. Evidence Code section 956.5 (Rea- to an issue concerning the intention the client, whether or not a party, sonable belief that disclosure of con- of a client, now deceased, with re- has a privilege to refuse to disclose, fidential communication is neces- spect to a deed of conveyance, will, and to prevent another from disclos- sary to prevent criminal act resulting or other writing, executed by the cli- ing, a confidential communication in death or bodily harm; exception to ent, purporting to affect an interest between client and lawyer if the the privilege) states: in property. privilege is claimed by: (a) The holder of the privilege; There is no privilege under this ar- 13. Evidence Code section 961 (Validity (b) A person who is authorized to ticle if the lawyer reasonably be- of Writing Affecting Interest in claim the privilege by the lieves that disclosure of any confi- Property Executed by Deceased Cli- holder of the privilege; or dential communication relating to ent in Issue) states: (c) The person who was the lawyer representation of a client is neces- at the time of the confidential sary to prevent the client from com- There is no privilege under this ar- communication, but such per- mitting a criminal act that the law- ticle as to a communication relevant son may not claim the privilege yer believes is likely to result in to an issue concerning the validity of if there is no holder of the privi- death or substantial bodily harm. a deed of conveyance, will, or other lege in existence or if he [she] is writing, executed by a client, now otherwise instructed by a per- 9. Evidence Code section 957 (Parties deceased, purporting to affect an son authorized to permit dis- Claiming Under Deceased Client) interest in property. closure. The relationship of at- states: torney and client shall exist be- 14. Evidence Code section 962 (Two or tween a law corporation as de- There is no privilege under this ar- More Clients Retaining Same Law- fined in Article 10 (commenc- ticle as to a communication relevant yer in Matter of Common Interest) ing with Section 6160) of Chap- to an issue between parties all of states: ter 4 of Division 3 of the Busi- whom claim through a deceased cli- ness and Professions Code and ent, regardless of whether the claims Where two or more dients have re- the persons to whom it renders are by testate or intestate succession tained or consulted a lawyer upon a professional services, as well as or by inter vivos transaction. matter of common interest, none of between such persons and them, nor the successor in interest of members of the State Bar em- 10. Evidence Code section 958 (Breach any of them, may claim a privilege ployed by such corporation to of Duty Arising Out of Lawyer-Cli- under this article as to a communi- render services to such persons. ent Relationship in Issue) states: cation made in the course of that re- The word ""persons" as used lationship when such communica- in this subdivision includes There is no privilege under this ar- tion is offered in a civil proceeding I partnerships, corporations, as- ticle as to a communication relevant between one of such clients (or his :! sociations and other groups to an issue of breach, by the lawyer successor in interest) and another of and entities. or by the client, of a duty arising out such clients (or his successor in in- of the lawyer-client relationship. terest). 6. Evidence Code section 955 (When Lawyer Must Claim Privilege) states: 11.Evidence Code section 959 (Inten- B. AUomey-cllent privilege: Rationale tion or Competence of Client Execut- andacope The lawyer who received or made a ing Attested Document in Issue) The attorney-client privilege consti- communication subject to the privi- states: tutes a limitation on the admissibility of ! lege under this article shall claim the evidence as a means of preserving the i I privilege whenever he is present There is no privilege under this ar- confidentiality of attorney-client com- L Volume 6, Number 2 & 3 3 CALIFORNIA DEFENDER

munications. As defined by Evidence The attorney-client privilege protects whether or not the employment ac­ Code Section 954, the privilege autho­ only confidential communications be­ tually results.12 Cal. 3d at 704-705. rizes a client to refuse to disclose and to tween client and attorney. The person prevent others from disclosing, informa­ who is claiming the privilege has the In People v. Gardner (1980) 106 tion communicated in confidence to and burden of proving that an attorney-client Cal.App.3d 882, 165 Cal. Rptr. 415, the by an attorney. Confidential communi­ relationship does exist. defendant was convicted of first degree cation exists when information is trans­ Evidence Code Section 951 defines murder. During the trial, the prosecution mitted between the attorney and the cli­ "client" as a person who directly or introduced a letter written by him to the ent in the course of an attorney client re­ through an authorized representative, public defender which contained an ad­ lationship. The communication must be consults an attorney for the purpose of mission of guilt as well as seeking legal made in confidence by a means which, in retaining the attorney or securing legal advice. The letter was seized from the so far as the client is aware, discloses the advice from the attorney in a profes­ defendant's jail cell. The court of appeal information to no third person other than sional capacity. The definition includes reversed and held that the letter was pro­ those who are present to further the in­ an incompetent who consults a lawyer or tected under the attorney-client privilege terest of the client in the consultation or whose guardian consults a lawyer on even though the letter had not yet been those to whom disclosure is reasonably his/her behalf. Evidence Code Section sent and no formal attorney-client rela­ necessary for the transmission of the in­ 950 defines "lawyer' as a person autho­ tionship had been established. The court formation for the accomplishment of the rized, or reasonably believed by the cli­ held: purpose for which the lawyer is con­ ent to be authorized, to practice law in sulted. Confidential information in­ any state or nation. An attorney-client It is abundantly clear from the letter cludes a legal opinion formed and the relationship is prima facie established itself and from its context that the advice given by the attorney in the when a party seeking legal advice con­ letter was intended for the office of course of that relationship. sults an attorney and secures ad vice. The the local public defender, and that it In People v. Meredith (1981) 29 Ca1.3d absence of a fee agreement does not pre­ was written with the (quite reason­ 682,175 CaI.Rptr. 612, 631 P.2d 46, the vent the formation of the relationship. able) expectation that [the defen­ California Supreme Court discussed the In People v. Canfield, (1974) 12 Cal.3d dant] would be represented by that policy and rationale behind the attorney 699,117 Cal. Rptr. 81, 527 P.2d 633, the office. [The defendant] was an indi­ client privilege and stated: defendant was convicted of auto theft. gent criminal accused, who, ... had While the defendant was in jail, he was been represented by the Monterey The fundamental purpose behind the interviewed by a representative from the County Public Defender at least attorney-client privilege is, of course, to public defenders office during which a seven times prior to his arrest in this encourage full and open communica­ financial eligibility statement was taken. case. The letter was addressed 'To tion between client and attorney. 'Ad­ equate legal representation in the The prosecution introduced this state­ P.O.', it concluded by requesting ascertainment and enforcement of ment at trial to impeach the testimony of advice, ad [the defendant] was in rights or the prosecution or defense of the defendant. The California Supreme fact represented by the Monterey litigation compels a full disclosure of Court held that the financial eligibility County Public defender in this pro­ the facts by the client to his attorney. statement was protected under the attor­ ceeding. 106 Cal. App. 3d at 887. Given the privilege, a client may make ney client privilege, however, the error such a disclosure without fear that his attorney may be forced to reveal the in­ did not require reversal. In discussing In Littlefield v. Superior Court (1982) formation confided to him .... In the the scope of the privilege the court stated: 136 Cal.App.3d 477, 186 Cal. Rptr. 368, criminal context, as we have recently Buono and Bianchi were charged with a observed, these poliCies assume par­ It is clear from the circumstances un­ series of murders. Bianchi entered a plea ticular significance. As a practical mat­ der which the statement was given it bargain which included a requirement ter, if the client knows that damaging was given in confidence (see Evid. that he testify against Buono. During the information could more readily be ob­ Code Section 952) and that the de­ trial of Buono, defense counsel sought to tained from the attorney following dis­ closure than from himself in the absence fendants purpose was to retain the cross-examine Bianchi about conversa­ of disclosure, the client would be reluc­ public defender to represent him in tions which he had with his attorney con­ tant to confide in his lawyer and it the criminal proceedings against cerning the plea bargain and to subpoena would be difficult to obtain fully in­ him. Under Evidence Code Section all notes and records of those conversa­ formed legal advice. Thus, if an accused 951 and 954 of the Evidence Code, tions from the public defenders office. is to derive the full benefit of his right to therefore, any disclosures made by The trial court ordered the witness to tes­ counsel, he must have the assurance of confidentiality and privacy of commu­ defendant in the course of the inter­ tify and for the public defender to pro­ nication. (citations omitted) 29 Cal. 3d at view were privileged and could not duce the requested documents. The 690-691. be revealed without his consent. court of appeal issued a peremptory writ The lawyer-client privilege is, in­ prohibiting the trial court from permit­ 1. Attorney-Client privilege protects deed, so extensive that where a per­ ting the cross examination and directing information transmitted between son seeks the assistance of an attor­ the trial court to quash the subpoena to attorney and client in the course of ney with a view to employing him the public defender's office. The court the attorney-client relationship. professionally, any information ac­ rejected the argument that the privilege quired by the attorney is privileged is "near an end" since the threat of pun-

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ishrnent to Bianchi had dissipated. The In People v. Klvana (1992) 11 A confidential communication in­ court held that these discussions and Cal.App.4th 1679, 15Cal.Rptr.2d 512, the cludes a legal opinion formed and ad vice notes are protected under the attorney court of appeal rejected the defendant's given by the attorney in the course of the client privilege: argument of trial counsel failure to in­ relationship. A communication need not voke the attorney-client privilege: be exclUSively verbal, but may include More significant, unlike the privi­ signs, actions, or the content of papers or leges against self-incrimination, the "The defendant faulls his lrial cuun­ reports given to the client. An observa­ attorney-client privilege continues sel for failing to invoke the attorney­ tion which is the direct product of a con­ even after the end of threat of pun­ client privilege when an 'attorney' fidential communication may also be ishment. The purpose of the attor­ with whom he had previously con­ protected. ney-client privilege is to preserve sulted was called to the stand. This In Re Navarro (1979) 93 Cal.App.3d the confidentiality of the informa­ assertion is completely meritless 325, 155 Cal. Rptr. 522, an attorney who tion. 136 Cal.App.3d at 482. since [the witness] testified that, at represented a defendant in a robbery the time of her conversations with case was called to testify at the prelimi­ The court also held that there the at­ [the defendant], she informed him nary hearing of that same defendant in a torney client privilege was not waived that she was no longer licensed and murder charge. The attorney was asked merely because the client testified to facts did not practice law." 11 whether she had shown the defendant an that were possibly a topic of conversa­ Cal.App.4th at 1724. arrest report which may have provided tions with his defense counsel. the motive for the murder. The magis­ In People v. Velasquez (1987) 192 In Hiott v. Superior Court (1993) 16 trate found the attorney in contempt and Cal.App.3d 322, 237 Cal.Rptr.366, the Cal.App.4th 712, 20 Cal.Rptr.2d 157, a ordered her to respond finding that the defendant was charged with various civil case, the plaintiffs brother, an attor­ question was not within the attorney cli­ charges including murder and robbery. ney, visited the plaintiff while she was in ent privilege. The superior court granted At trial, the government called a witness the hospital. He initially came as her a writ of habeas corpus discharging the to testify to conversations that he had brother, but after seeing her condition, contempt order. The court of appeal af­ with the defendant in the jail, during returned later with a video camera and firmed and held: which the defendant allegedly admitted began asking her questions about the his participation in the murder. Thewit­ accident. The court of appeal ruled that Nor are we persuaded by the ness was a "jailhouse lawyer" who con­ substantial evidence supported the trial people's contention that a publica­ sulted with the defendant and agreed to court's inference that the ensuing video tion which is in the public domain is help the defendant file some legal papers interview constituted attorney-client somehow per se nonconfidential. in his case. The defense objected, claim­ communication: Once an attorney has determined ing that these conversations were pro­ that a particular publication is rel­ tected under the attorney-client privi­ "On January 4, 1990, [plaintiff's] evant to his inmate-client's case, that lege. The court of appeal held that the brother visited her without a video publication may become an integral conversations were not privileged be­ camera. He was a 'concerned part of the attorney's legal ad vice or cause a jailhouse lawyer does not qualify brother.' On January 6, 1990, her strategy and, as such, it would be as an attorney for purposes of the attor­ brother came to the hospital with a entitled to ... protection. 93 Cal. App. ney-client privilege: video camera, a fact she would have 3d at 329. noted. When, after only a 'brief salu­ In enacting section 911 of the Evi­ tation,' her brother began asking her A lawyers act of handing a police re­ dence Code the Legislature clearly questions (as an attorney gathering port to his client (if such be the fact) was intended to abolish common law information for potential litigation') a confidential communication privileged privileges and to keep the courts about the circumstances of her slip under Evidence Code Section 952. [The from creating new nonstatutory and fall-while recording his ques­ attorney] was duty bound to raise the privileges as a matter of judicial tions and her answers-it would privilege on behalf of her client.(Evid. policy. 192 Cal.App.3d at 317. have been obvious to her that this Code Section 955).93 Cal.App.3d at 330- was not 'brother-sister talk' but 331. To come within the privilege, appel­ rather 'client-lawyer communica­ lant would have had to believe he was tion.' Her responsive answers evi­ Communications between an attor­ talking to a lawyer. However, appellant denced approval and confirmation ney and a client who is in jail or in never testified, either at trial or the pre­ of the lawyer-client relationship and prison are confidential. In fact, Pe­ trial hearing on the motion to exclude the its confidentiality." 16 Cal.App.4th nal Code 851.5 makes it a misde­ witness (jailhouse lawyer) from testify­ at 7l8. meanor for the police to monitor, ing, that he believed (the witness) was an eavesdrop on, or record a telephone attorney ... While use of "jailhouse law­ 2. Attorney-Client privilege protects call by an arrested person to a re­ yers" is not prohibited, it is not encour­ only those communications which tained attorney, the public defender, aged or promoted by state action; nor are are made and intended to be in con­ or an attorney assigned by the court. such communications privileged. 192 fidence. Penal Code Section 636 makes it a Cal.App.3d at 327-29. felony for any person to eavesdrop

Volume 6, Number 2 & 3 5 CALIFORNIA DEFENDER

on or record by electronic device, lege protects not only the initial commu­ sel to either physically produce or pro­ without permission from all parties nications, but extends to information vide information about the murder to the conversation, any portion of a which the attorney learns or receives as a weapons which he learned about from conversation between any person in result of that communication. However, his client. The trial court would not issue custody or on the property of a law the court crafted an exception to the an order. The government petitioned the enforcement agency and his or her privilege where the defense has altered court of appeal for a writ of mandate to lawy<>r, doctor, or religious advisor. or removed evidence. The court held: compel the trial court to order produc­ Penal Code Section 2601(b) pro­ tion and the court of appeal issued the vides that a sentence of imprison­ [W]e conclude that an observation writ. The court noted that it was optimis­ ment in state prison does not de­ by defense counselor his investiga­ tic that defense counsel would satisfy prive an inmate of the right to corre­ tor, which is the product of a privi­ his/her obligations to the court, but that spond confidentially with any leged communication, may not be the proceedings made clear that the exact member of the State Bar, provided admitted unless the defense, by al­ nature of that obligation may not have only that prison officials may open tering or removing physical evi­ been understood. and inspect such mail to search for dence has precluded the prosecu­ The court cited two cases as proViding contraband. tion from making the same observa­ the parameters by which to asses the tion. In the present case the defense facts in this case. First, People v. Meredith In Barber v. Municipal Court (1979) 24 investigator, by removing the wal­ (1981) 29 Cal. 3d 682, 175 Cal. Rptr. 612, Ca1.3d 742,760,157 Cal.Rptr. 658, 598 let, frustrated any possibility that 631 P.2d 46, which established two basic P.2d 818, the California Supreme Court the police might later discover it in principles; first, that the attorney-client established that a prisoner has the right the trash can. The conduct of the privilege is "not strictly limited to com­ to consult with his or her attorney in ab­ defense thus precluded the prosecu­ munications, but extends to protect ob­ solute privacy even when the interests of tion from ascertaining the crucial servations made as a consequence of pro­ security in the administration of the fact of the location of the wallet. tected communications"; and second prison are considered. Under these circumstances, the that whenever defense counsel removes In In re Jordan (1974) 12 Cal.3d 575, prosecution was entitled to present or alters evidence the statutory privilege 577-578, 116 Cal.Rptr. 371,526 P.2d 523 evidence to show the location of the does not bar disclosure of the original the court held that an institutional rule wallet in the trash can. 29 Cal.3d at location and condition of that evidence. that treated attorney-inmate mail as non­ 686-687. 192 Cal.App.3d at 35-36. privileged material was invalid because The second case was Goldsmith v. Su­ it was inconsistent with the rights af­ The court further stated: perior Court (1984) 152 Cal. App. 3d 76, forded prisoners under former Penal 199 Cal. Rptr. 366 where the court upheld Code Section 2600(2) [now see Penal We thus view the defense decision the attorney-client privilege and did not Code section 2601(b)]. The court also to remove evidence as a tactical compel the defense attorney to disclose held that while the authorities were per­ choice. If the defense counsel leaves the whereabouts of a certain weapon mitted to open mail to search for contra­ the evidence where he discovers it, where the attorney indicated that he band, they were not permitted to read his observations derived from the "neither possessed the gun nor had con­ the mail to search for "verbal" contra­ privileged communications are in­ trol over it" and there was no indication band. sulted from revelation. If, however, that he had ever moved or altered it. 192 In People v. Meredith (1981) 29 Ca1.3d counsel chooses to remove evidence Cal. App.3d at 36. 682, 175 CaLRptr. 612, 631 P.2d 46, the to examine or test it, the original 10- The court reasoned that both of those defendant was charged with murder and cation and condition of that evi­ cases differ in certain respect but provide robbery. A defense investigator, at the dence loses the protection of the guidance as to what counsel must do: request of defense counsel, had retrieved privilege. 29 Ca1.3d at 695. the victims' wallet from behind the Defense counsel's obligations are to defendant's house, brought it to the at­ It is not clear whether the California the court and their client. Hence, torney, who examined it and turned it statute, which renders it a misdemeanor counsel cannot disclose whether over to the police. At trial, the prosecu­ willfully to conceal evidence with intent they have ordo not have the items in tion called the defense investigator to tes­ to prevent it from being produced (Penal questions. If they do not, then that is tify as to his observations of the wallet. Code section 135), requires the attorney the end of the issue insofar as the All parties agreed that the wallet itself to disclose the information or whether case is concerned. If they are aware was properly admitted into evidence the attorney's general duty to protect the of the location of the items, and have and that any conversations between the client's secrets prevails. The latter is not taken possession of the them, defendant, the investigator and the attor­ probably more in keeping with the spirit then counsel can satisfy their ethica I ney are confidential. The issue was of the attorney-client relationship. obligations to both the court and whether the investigators' observations, In People v. Superior Court (Fairbank) their client by leaving the items which were the product of a privileged (1987) 192 Cal.App. 3d 32, 237 Cal. Rptr. where they are in accordance with communication, are also protected un­ 158, the defendant was charged with first the holding of Meridith. [sic] In the der the attorney-client privilege. The degree murder. The government re­ event that defense counsel are in court held that the attorney-dient privi- quested the court to order defense coun- need of the items sought, they can-

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not secret or destroy the items. 192 that claim by independent evidence be· seeks advice that will serve him in CaL App.3d at 37. fore disclosure of attorney-client com­ the contemplated perpetration of a munications can be required. fraud there is no privilege. [citation In People v. Lee (1970) 3 Cal. App.3d In People v. Pic'1(1981) 114Cal. App.3d omitted I Real party in interest 514,83 Cal. Rptr. 715 the defendant was 824,171 CaL Rptr. 106, an attorney and makes charges attempting to bring convicted of murder. After his arrest, the another man were found guilty of con­ this case within these exceptions. ddendant called hi~ father to tell where spiracy, extortion and receiving stolen But it would be destructive of the his bloody shoes were hidden. The father property. During trial, the attorney testi­ privilege to require disclosure on called the defendant's wife who deliv­ fied to certain matters and was ordered the mere assertion of opposing ered the shoes to the Public defender's by the court to disclose the name of the counsel. "Accordingly, evidence office who then turned it over to the client! co-defendant who had tele­ should be presented to make a Judge. During trial, the government se­ phoned him about making arrange­ prima facie showing that this was cured possession of the shoes. The court ments to return certain stolen property to the client's purpose (to commit a held that the seizure of the shoes by the the victim. The court held that this infor­ crime) before the communication is government did not violate any attor­ mation was not to be protected within received (into evidence}." [citation ney-client privilege. The court further the attorney-client privilege: omitted] 58 American Jurisprudence held that testimony from representatives says: "The mere charge of illegality of the public defender's office that they The name of the client who consults will not defeat the privilege. There received the shoes from the defendant's a lawyer about a criminal matter must be prima facie evidence that wife and turned them over to the judge should, normally, be deemed a con­ the illegality has some foundation in was also not protected. 3 Cal. App.3d at fidential communication for the fact." 223 CaLApp.2d at 657. 526-527. purpose of the lawyer-client privi­ lege .... [The] defendant [attorney] In Dickerson v. Superior Court (1982) 3. Attorney-dient privilege does not was also foreclosed from validly as­ 135 Cal.App.3d 93, 185 Cal.Rptr. 97, an protect disclosures which are made serting the lawyer-client privilege attorney petitioned the court of appeal in order to gain assistance for a crime by virtue of the crime exception to for a writ to set aside an order by the su­ ora fraud. this privilege, created by Evidence perior court directing him to answer Code Section 956. As discussed pre­ questions at a deposition. Dickerson Evidence Code Section 956 provides viously, the evidence established claimed that the order violates the attor­ that there is no attorney-client privilege if that [the client] had sought the ser­ ney client privilege. The court of appeal the services of the lawyer were sought or vices of defendant Pic'l, an attorney, granted the writ without prejudice for obtained to enable or aid anyone to com­ to aid in the criminal plan to have the superior court to review whether the mit or plan to commit a crime or a fraud. the stolen property ... returned to crime-fraud exception to the attorney-cli­ Thus, when a client makes a statement [the victim] upon his payment of ent applies pursuant to Evidence Code that he or she is about to commit a future $2,500 and the execution of a non­ Section 956. With respect to whether this criminal act, that statement is not privi­ prosecution agreement. 114 CaL exception would apply the court ob­ leged. However, a prima facie showing App. 3d at 883-884. served: must be made that the clients purpose in consulting the attorney was to obtain In Nowell v. Superior Court (1963) 223 Had the issue been brought before advice concerning the perpetration of a Cal. App. 2d 652, 657, 36 CaL Rptr. 21, the respondent court, it is possible that crime or fraud before the communication appellate court vacated a discovery or­ an exception might have been found will be received in evidence over a claim der requiring a defendant in a libel case in the enactment nullifying the of privilege. Nowell v. Superior Court to disclose information concerning a con­ privilege "if the services of the law­ (1963) 223 Cal.App.2d 652,657,36 Cal. sultation he had with his attorney. The yer were sought or obtained to en­ Rptr.21. consultation concerned his contem­ able or aid anyone to commit or plan This exception is narrower than the plated publication of the allegedly libel­ to commit a crime or fraud." The corresponding exception to the psycho­ ous material that was the subject of the communications between Chandler therapist-patient privilege under Evi­ action. Holding that the discovery order and Dickerson were allegedly made dence Code Section 1018. Under that ex­ could not be justified on the basis that the in furtherance of a fraud. However, ception, the psychotherapist-patient defendant had consulted with the attor­ a mere allegation of fraud is insuffi­ privilege does not apply if the services of ney for aid in committing a crime or cient to make the exception appli­ the psychotherapist are sought or assist fraud, the court stated: cable. Thus, had a prima facie show­ in the planning or commission or a crime ing of fraudulent purpose been or a tort. Under the exception to the attor­ The attorney-client privilege does made, the discovery order would ney-client privilege, the assistance must not extend to communications be­ have been proper. 135Cal.App.3d at besought fora crime ora fraud, and a tort tween the attorney and client "hav­ 100. is insu fficient. ing to do with the client's contem­ A party claiming that the services of plated criminal acts, or in aid or fur­ In People v. Clark (1990) 50 Ca1.3d 583, an attorney were sought for aid in com­ therance thereof .... " [citations 268 CaLRptr. 399, 789 P.2d 127, the Cali­ mitting a crime or fraud must establish omitted] Similarly, when the client fornia Supreme Court held that although

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a psychotherapist-patient privilege did closure of the communication is necessary revelation of the communication is nec­ not apply when the psychotherapist dis­ to prevent the threatened danger. In essary also becomes irrelevant once the closed a threat made by the defendant People v. Clark (1990) 50 Cal.3d 583,268 communication has lost its confidential during therapy sessions, the attorney-cli­ Cal.Rptr. 399,789 P.2d 127, at the request status. The reason for the privilege-­ ent privilege applied to render the disclo­ of defense counsel, a psychotherapist was protecting the patient's right to privacy sure inadmissible at trial. The court ob­ appointed to examine the defendant. In and promoting the therapeutic relation­ served that since the psychotherapist conversations with that psychotherapist, ship-and thus the privilege itself, disap­ had been appointed to assist defense the defendant threatened to kill two pear once the communication is no counsel the attorney-client privilege people. The psychotherapist consulted longer confidential. 50 Cal. 3d at 619-620. which therefore arose was not waived by with her attorney and arranged for her The Court, however, found that be­ the psychotherapist's disclosure. In dis­ attorney to inform the potential victims of cause the psychotherapist had been ap­ cussing the attorney-client privilege, the threats, thus revealing the communi­ pointed to assist the defense attorney, the however, the Clark court explained the cation. The California Supreme Court communication was still privileged by parameters of the crime! fraud exception held that the threats were no longer confi­ the attorney-client privilege: to the attorney-client privilege: dential under the psychotherapist-patient privilege: The attorney-client privilege serves a The attorney-client privilege does different purpose. It exists to permit not encompass communications be­ Defendant contends that the state­ a client to freely and frankly reveal tween attorney and client that are in­ ments were confidential, and be­ confidential information, including tended to further future criminal cause they were made ina confiden­ past criminal conduct, to the attorney conduct. tial relationship prior to the time or others whose purpose is to assist [the psychotherapist] told him she the attorney, and to thereby enable Cases decided since adoption of the might have to reveal them, he had the attorney to adequately represent Evidence Code recognize the limited na­ not waived the confidential nature the client. In a criminal case the privi­ ture of the exception to the attorney-cli­ ofthe communication. We need not lege also serves to preserve the ent privilege created by Evidence Code decide the waiver question to re­ defendant's privilege against self-in­ section 95.6: "This exception is invoked solve this claim, however, because crimination that might otherwise be only when a client seeks or obtains legal at the time of the trial [the psycho­ deemed to have been waived by his assistance 'to enable or aid' one to com­ therapist] had already revealed the revelation of incriminating informa­ mit a crime or fraud. The quoted lan­ communications that were, there­ tion. To make adequate representa­ guage clearly requires an intention on the fore, no longer confidentiaL tion possible, therefore, these privi­ part of the client to abuse the attorney­ leges assure criminal defendants that client relationship ... "50 Cal.3d 583,622- A psychotherapist has a profesSional confidential statements to their attor­ 623. duty to maintain the confidential charac­ ney will not be adrnissible in any pro­ ter of communications made to him by ceeding. his patient during the course of the rela­ 4. Attorney-client privilege does not tionship, but when it is necessary to dis­ The Legislature has recognized this protect disclosures which the attor­ close confidential information to avert distinction on purpose in Evidence Code ney believes are necessary to prevent danger to others the therapist must do so. section 1024, where it provides that there the client from committing a crimi­ The purpose underlying Evidence Code is no [psychotherapist-patient privilege] nal act that the lawyer believes is section 1014 is not to prevent the use of a if the therapist believes it is necessary to likely to result in death or substan­ defendant's statement against him in le­ disclose the communication. No similar tial bodily harm. gal proceedings. It exists to prevent the provision reflects an intent that the attor­ unnecessary disclosure of statements ney-client privilege terminate if a com­ In 1993, Evidence Code section 956.5 made in confidence in the course of a munication to an attorney is made public was added to create an exception to the privileged communication with a thera­ without a waiver of confidentiality by attorney-client privilege when the law­ pist and thereby to facilitate treatment. If the client. Since defendant's statements yer reasonably believes that disclosure of the statements have been revealed to to [the psychotherapist] were also com­ the confidential communication relating third persons in a communication that is munications made in the attorney-client to representation of the client is neces­ not itself privileged, however, they are relationship, unless defendant waived sary to prevent the client from commit­ no longer confidentiaL the privilege or did not intend that the ting a criminal act that the lawyer be­ The question is not whether the psy­ statements be confidential, they contin­ lieves is likely to result in death or sub­ chotherapist-patient privilege has been ued to be privileged notwithstanding the stantial bodily harm. waived or the exception that would per­ fact that they were no longer confidential A comparable provision is that of Evi­ mit compelled disclosure in a legal pro­ at the time of triaL 50 CaL3d at 620-21. dence Code section 1024, which creates an ceeding applies, but whether the privi­ The 1993 addition of Evidence Code exception to the psychotherapist-patient lege may be claimed at all once the com­ section 956.5 appears to have partially privilege if the psychotherapist has rea­ munication is no longer confidential. abrogated the latter language in Clark, by sonable cause to believe that the patient is Whether the psychotherapist 'reason­ providing a statute reflecting an intent dangerous to another person and that dis- ably believes' (Evid.Code sec. 1024) that that the attorney-client privilege termi-

8 2nd & 3rd Quarters, 1994 CALIFORNIA DEFENDER

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nate if the attorney believes that disclo­ the attorney-client relationship; thus, the defendant sought a writ of prohibition to sure is necessary to prevent the death or privilege does not apply in this context. dismiss the criminal charges. The defen­ bodily injury to another person. Thus, it dants alleged that their Sixth Amend­ now appears that Clark's ruling with re­ 6. Attorney-client privilege does not ment right to counsel had been violated gard to the loss of confidentiality from a protect disclosures which are made by the presence of a government agent in psychotherapist's disclosure of commu­ to third persons unless these disclo­ an undercover capacity at their confiden­ nication may apply with equal force to a sures are made to persons to further tial attorney-client meetings. TheCalifor­ comparable disclosure, under compa­ the interest of the client or to accom­ nia Supreme Court granted the writ and rable circumstances, by an attorney of a plish the purpose for which the at­ held: defendant's threat to kill or harm another torney was consulted. person. The right to counsel, which embod­ However, Clark may have survived Under Evidence Code section 952, to ies the right to private consultation insofar as it held that when a psycho­ be a confidential communication be­ with counsel, is violated when a therapist reveals a threat made by the tween attorney and client, the communi­ state agent [in an undercover capac­ defendant during therapy sessions, the cation must not be disclosed to a third ity1 is present at confidential attor­ psychotherapist-patient privilege is no person other than one who is present to ney-client conferences ... The fact that longer applicable but the attorney-client further the interest of the client in the the petitioners discussed their de­ privilege remains applicable.lt may now communication or to whom disclosure is fenses with joint counsel in a confer­ be that, under these circumstances when reasonably necessary for the transmis­ ence type setting rather than in a both privileges are at play, both the psy­ sion of the information or the accom­ one-on-one session does not dimin­ chotherapist and the attorney would plishment of the purpose for which the ish their right of confidentiality. 24 have to disclose the threat, or arguably at lawyer is consulted. CaL 3d at 752, 754. least both reasonably believe that disclo­ The Law Revision Commission Com­ sure is necessary to prevent death or ment to Evidence Code Section 952 states In People v. Lines, (1975) 13 C.3d 500, bodily harm, for its confidentiality as to in pertinent part: 119 Cal. Rptr225,531 P.2d 793, thedefen­ both privileges to be lost. (See dant was charged with the murder of his F.2.b.:A.B.A. Model Rule 1.6, and F.3., Confidential communications also aunt. He entered pleas of not guilty and below) include those made to third par­ not guilty by reason of insanity. After a ties-such as the lawyer's secretary, bifurcated trial, the defendant was found 5. Attorney·client privilege does not a physician, or similar expert-for both guilty and sane. The defendant protect disclosures relevant to an is­ the purpose of transmitting such claims that it was error for the court to sue of breach. information to the lawyer because admit, over objection, the testimony of they are "reasonably necessary for two court-appointed psychiatrists in vio­ No privilege protects a confidential the transmission of the informa­ lation of his attorney-client privilege. The communication between an attorney and tion ... " two doctors were initially appointed by client when the communication is rel­ the court under Evidence Code Section evant to an issue of breach, by either the A lawyer at times may desire to have 1017. The California Supreme Court held attorney or the client, of a duty arising a client reveal information to an expert that, pursuant to an appointment under out of the attorney-client relationship. consultant in order that the lawyer may Evidence Code Section 1017, any com­ (E vidence Code section 958)(See Glade v. adequately advise his client. The inclu­ munication between the defendant and Superior Court (1978) 76 Cal.App.3d 738, sion of the words "or the accomplish­ the doctors was protected under the at­ 746-7, 143 Cal.Rptr.119) Thus, when a ment of the purpose for which the lawyer torney-client privilege: criminal defendant fled and claimed af­ is consulted" assures that these commu­ ter he was apprehended that his attorney nications, too, are within the scope of the Where, as here, pursuant to section had counseled his flight, the attorney-cli­ privilege. This part of the definition may 1017 of the Evidence Code, a psycho­ ent privilege did not prevent disclosure change existing law... therapist is appointed by the court in by the attorney at a hearing on the The words "other than those who are a criminal proceeding to examine the defendant's motion for a new trial of the present to further the interest of the client defendant in order to provide the defendant's statements to the attorney in the consultation" indicate that a com­ defendant's attorney with informa­ relevant to his disappearance. People v. munication to a lawyer is nonetheless tion for the purposes set forth in said Vargas (1975) 53 Cal.App.3d 516,525-528, confidential even though it is made in the section, the results of such examina­ 126 Cal.Rptr. 88. In a habeas corpus pro­ presence of another person-such as a tion, including any report thereof, ceeding arising out of a criminal spouse, parent, business associate or and all infornlation and communica­ defendant's claim of incompetence of joint client-who is present to further the tions relating thereto, are protected counsel, the attorney-client privilege be­ interest of the client in the consultation. from disclosure by the attorney-client tween the defendant and the challenged These words refer too, to another person privilege notwithstanding the fact attorney is waived concerning those and his attorney who may meet with the that the defendant has theretofore or matters put in issue by the defendant. client and his attorney in regard to a thereafter tendered in said proceed­ Inad equa te representa tion of counselis a matter of joint concern. ing the issue of his mental or emo­ charge of a breach of duty arising out of In Barber v. Municipal Court, etc., the tional condition. 13 Ca1.3d at 514.

Volume 6, Number 2 & 3 9 c L!FORNIA D E

The court, however, found that the discussing the differences between 7. Assertion of the Privilege: The client error was not suffidently prejudidal to the psychotherapist-patient privi­ or his or her attorney may claim the the defendant to warrant reversal. Two lege and the attorney-client privi­ privilege and in certain instances the other doctors testified at the trial who lege, agreed that statements made to attorney must claim the privilege. were appointed pursuant to Penal Code a psychotherapist may be made in Section 1027 which requires the court to the attorney-client relationship and, Subject to Evidence Code Section 912, appoint two psychiatrists to examine the "unless defendant waived the privi­ which governs waiver of privileges by defendant after he/~he ha~ rah;ed a de­ lege or did not intend that the state­ disclosure, the client, whether or not a fense of not guilty by reason of insanity. ments be confidential, they contin­ party to a particular action has a privilege These psychiatrists may be called by ei­ ued to be privileged notwithstand­ to refuse to disclose, and to prevent an­ ther party or by the court. Any state­ ing the fact that they were no longer other from disclosing, a confidential ments made by the defendant to the doc­ confidential at the time of tria!." The communication between the client and tors appointed under Penal Code section defendant's statements in Clark his or her attorney. 1027 are not privileged under the attor­ were revealed to potential victims The attorney who received or made a ney-client privilege. Since the testimony and were thus no longer confiden­ confidential communication must claim which was admitted by the doctors ap­ tial at the time of trial, but in Clark, the privilege whenever he or she is pointed pursuant to Penal Code section the defendant had at no time present when the communication is 1027 was essentially the same as that waived the privilege. sought to be disclosed. Thus, while the from the doctors appointed pursuant to attorney client privilege belongs only to Evidence Code section 1017, the Court As the People argue, here defendant the client, the attorney is professionally found no prejudice. The Court, however, did waive the privilege when [the psy­ obligated to claim it on the client's behalf did disapprove the practice of appoint­ chotherapist] was called to the stand by whenever the opportunity arises unless ing the same doctor under the two Evi­ the defense in the first trial. 52 Ca1.3d at the client has instructed otherwise. dence Code sections. Since the communi­ 242-43. cations given under the first appoint­ A disclosure may be made for a lim­ c. Waiver of the AttomeyoCllent privilege ment are privileged, and those under the ited purpose under certain circum­ second appointment are not, it may im­ stances, thereby not waiving the attor­ 1. The attorney-client privilege may pose an impossible task for the doctor to ney-client privilege. In People v. Aguilar only be waived by the client's compartmentalize the information and (1990) 218 Cal.App.3d 1556,267 Cal.Rptr. uncoerced disclosure of all, or a sub­ not rely upon or use any information that 879, a psychological expert was ap­ stantial part, of a privileged commu­ is deemed privileged. pointed to aid the defense. Pursuant to nication, or by a failure to claim the An expert loses his or her status as a the requirements of Evidence Code sec­ privilege when the client has the le­ consulting agent of the attorney if the tion 795, the defendant underwent hyp­ gal standing and opportunity to as­ attorney calls the expert to the witness nosis in the psychological sessions. The sert the claim. stand. Once the witness is called, neither defendant later sought to testify at trial, the attorney-client privilege nor the requiring a hearing on the admissibility Evidence Code Section 912 provides work-product doctrine apply to matters of his posthypnosis testimony. For these that a waiver of the attorney-client privi­ relied on or considered in the formation purposes only, the defendant agreed that lege may be found "if any holder of the of his or her opinion. People v. Milner the prosecutor could review videotapes privilege, without coercion, has dis­ (1988) 45 Ca1.3d 227, 241, 246 Cal.Rptr. of the hypnosis sessions. The trial court closed a significant part of the communi­ 713,753 P.2d 669. ruled that the statements made in the cation or has consented to such disclo­ In People v. Haskett (1990) 52 CaL3d videotapes could be used by the prosecu­ sure made by anyone". Waiver depends 210,276 Cal.Rptr. 80,801 P.2d 323, the tor as impeachment evidence at trial. The upon actual, and not potential disclosure California Supreme Court rejected a court of appeal held that the ruling was of confidential communications. Failure claim that calling a psychotherapist to error, but that the error was not prejudi­ to object to evidence may constitute a the stand at a first trial did not waive the cial requiring reversal: waiver of the priVilege. attorney-client privilege: In Maas v. Municipal Court (1985) 175 The defendant's waiver of the [attor­ Cal.App.3d 601, 221 Cal. Rptr. 245, the In the trial court, defendant invoked ney-client] privilege against disclo­ defendant was charged with murder by only the psychotherapist-patient sure of his interviews with the hyp­ complaint. A witness in the case entered privilege ... The privilege was notist was occasioned by the trial into a plea bargain with the government waived, however, when defendant court's erroneous application ofEvi­ in which she agreed to testify against the called [the psychotherapist] to tes­ dence Code section 795 to his testi­ defendant. The attorneys for the defen­ tify on his behalf at the first triaL On mony. The waiver was not only lim­ dant issued subpoenas to the lawyers for appeal, defendant invokes for the ited to the hearing on admiSSibility this witness asking them to produce first time the attorney-client privi­ of his posthypnosis testimony, it documents concerning their client argu­ lege on the mistaken assumption was also freely and voluntaril y ing that she had waived any attorney-cli­ that it has survived the waiver ofthe made. However, ... the error was ent privilege by entering into the plea psychotherapist-patient privilege. harmless beyond a reasonable agreement. The magistrate ordered the People v. Clark (1990) 50 Ca1.3d 583, doubt. 218 Cal.App.3d at 1565-66. lawyers to produce the documents and

10 2nd & 3rd Quarters, 1994 CALIFORNIA DEFENDER

the Superior Court issued a writ ordering "It was not quite like that". The govern­ only as to issues raised in the peti­ the magistrate to vacate his order. The ment called the bailiff as a witness and tion he or she elects to file ... Of court of appeal affirmed the writ holding the defendant made no objection to the course, if during an evidentiary that when the witness entered into a testimony as privileged. On appeal the hearing a defendant discovers that written plea agreement and was granted court found no error and stated: he has opened a real can of worms immunity, she had not waived her attor­ and that some of the goodies he has ney client privilege. The court held: [Tlhe fdilure tu ubject tu its ddmi5sion imparted to his attorney may come or to claim the privilege resulted in a to light, he can protect himself by [Tjhe waiver of a privilege must be a waiver thereof(Evid. Code Section simply dismissing the petition. 123 voluntary and knowing act, done 912).27 CaLApp.3d at 64. Cal.App.3d at 616-17. with sufficient awareness of the rel­ evant circumstances and likely con­ 2. Attorney-client privilege is waived D. Laying Foundation to Establish sequences, ... While a -qritten immu­ as to matters put is issue on any Existence of Attorney.client Privilege nity agreement might include an question of breach of a duty arising Disputes over the disclosure of infor­ unambiguous waiver of the attor­ out of the lawyer-client relationship. mation, or the production of material ney-client privilege among its that may be subject to the attorney-client temls, clearly the agreement at issue Evidence Code Section 958 provides privilege can arise during trial. To make in this case did not. 175 CaL App.3d that there is no privilege as to a commu­ a prima facie showing that the attorney­ at 603. nication relevant to an issue of breach, by client privilege is applicable, the party the lawyer or by the client, of a duty aris­ asserting the privilege has the burden of In People v. Tamborrino, (1989) 215 CaL ing out of the lawyer-client relationship. proof for the foundational requisites. App. 3d 575, 263 CaL Rptr. 731, the court The Law Revision Commission com­ Thus, the party claiming the privilege held that a witness did not waive the at­ ment to Evidence Code Section 958 must establish that (1) the person to torney-client privilege by testifying to states: whom the client made the communica­ the same facts he related to his attorney. tion in dispute was a lawyer authorized In this robbery prosecution, the defen­ It would be unjust to permit a client to practice law in some state or nation (or dant testified the victim was accusing either to accuse his attorney of a someone the client reasonably assumed him of the robbery to get even with him breach of duty and to invoke the to be authorized to practice law); (2) the for selling her fake narcotics. At the con­ privilege to prevent the attorney client consulted the lawyer to obtain le­ clusion of his testimony the trial judge from bringing forth evidence in de­ gal service or advice; and (3) the specific asked the defendant, ""Did you tell your fense of the charge or to refuse to communication in dispute was made in lawyer about the story you just related pay his attorney's fee and invoke the the course of that attorney-client rela­ on the stand 7" Defense counsel objected privilege to defeat the attorney's tionship [see Evid. Code §§ 950,952; see that the answer would violate the claim. Thus, for example, if the de­ also Travelers Ins. Companies v. Superior defendant's attorney-client privilege. fendant in a criminal action claims Court (1983) 143 Cal. App. 3d 436,447- The trial judge overruled the objection that his lawyer did not provide him 448,191 Cal. Rptr. 871. ,In contrast, the but the appellate court held the question with an adequate defense, commu­ proponent of the evidence has the bur­ was improper. The court stated: nications between the lawyer and den of proving that the privilege does not client relevant to that issue are not apply because the communication was Defendant' 5 testimony concerning privileged. not made in confidence, was waived, or facts that might have been previ­ falls under an exception [see above1- ously related by him to his counsel is In re Dudley Gray (1981) 123 Sometimes, an adequate foundation will not equivalent to disclosure by him CaLApp.3d 614, 176 CaLRptr. 72, an at­ already have been laid by previous testi­ of the actual content of an attorney­ torney was held in contempt for refusing mony or, as in a case where a questions client communication, and does not to answer questions at a habeas proceed­ calls for communicaJ;ions with a party's constitute a waiver of the privilege. ing brought by a former client who was attorney of record, matters that may be He testified only to fads supporting alleging ineffective assistance of counseL judicially noticed; if not, the foundation his defense ... he did not testify con­ The court on appeal denied the applica­ must be established through the exami­ cerning, nor did any of his testi­ tionfora writ of habeas corpus and held: nation of a witness. mony relate to any communication In many cases, the requisite showing he might have had with his counseL We hold that there is no attorney-cli­ may be made by simply asking the attor­ 263 CaLRptr. at 734. ent privilege as to matters put in is­ ney or client whether an attorney-client sue in a habeas corpus proceeding relationship existed. Collette v. Sarrasin In People v. Poulin (1972) 27 where the competency of (1920) 184 CaL 283,289,193 P. 571. In CaLApp.3d 54, 103 CaL Rptr. 623, the defendant's trial attorney is at other cases, it may be necessary to estab­ defendant was convicted of explosion of issue ... [However], we are limiting lish the subject matter of a particular at­ a destructive device. During trial, while our holding to matters put in issu~ torney-client relationship and when it the victim was describing the bomb by the petition. Therefore, the peti­ came into existence. When a communi­ which injured him, the bailiff saw the tioner is not going to get bush­ cation was transmitted by or to a third defendant gesture to his attorney and say whacked. The privilege is waived person, the party claiming the privilege

! Volume 6, Number 2 & 3 11 b CALIFORNIA DEFE"iDER

may also be required to show that the ibility is likely to be critical to the out­ (a) No order requiring discovery shall third person was acting in a particular come of the trial. be made in criminal cases except as pro­ capacity. D.I. Chadbourne, Inc. v. Superior (e) Any exculpatory evidence. vided in this chapter. This chapter shall Court (1964) 60 Cal. 2d 723, 736,739, 36 (0 Relevant written or recorded state­ be the only means by which the defen­ Cal. Rptr. 468, 388 F.2d 700 (existence of ments of witnesses or reports of the state­ dant may compel the disclosure or pro­ privilege dependent upon whether em­ ments of witnesses whom the prosecutor duction of information from prosecuting ployee transmitting report wa& acting as intends to call at the trial, including any attorneys, law enforcement agencies corporate spokesperson). reports or statements of experts made in which investigated or prepared the case A party asserting a claim of attorney­ conjunction with the case, including the against the defendant, or any other per­ client privilege does not waive the privi­ results of physical or mental examina­ sons or agencies which the prosecuting lege by disclosing the existence or subject tions, scientific tests, experiments, or attorney or investigating agency may matter of an attorney-client relationship, comparisons which the prosecutor in­ have employed to assist them in per­ the dates on which attorney-client com­ tends to offer in evidence at the trial. forming their duties. munications occurred, or even the gen­ (b) Before a party may seek court en­ eral subject matter of the communica­ Penal Code section 1054.2. Disclosure forcement of any of the disclosures re­ tions. Mitchell v. Superior Court (1984) 37 of address or telephone number of quired by this chapter, the party shall Cal. 3d 591, 601,603, 208 Cal. Rptr. 886, victim or witness; prohibition; make an informal request of opposing 691 P,2d 642; see also Coy v, Superior exception counsel for the desired materials and in­ Court (1962) 58 Cal. 2d 210, 219, 220, 23 No attorney may disclose or permit to formation. If within 15 days the oppos­ Cal Rptr, 393,373 P.2d 457. However, a be disclosed to a defendant the address ing counsel fails to provide the materials disclosure of any significant part of the or telephone number of a victim or wit­ and information requested, the party content of the communication may result ness whose name is disclosed to the at­ may seek a court order. Upon a showing in a waiver. fulrik Productions, Inc. v. torney pursuant to subdivision (a) of Sec­ that a party has not complied with Sec­ Chester (1974) 38 Cal. App. 3d 807, 811, tion 1054.1 unless specifically permitted tion 1054.1 or 1054.3 and upon a shmving 113 Cal. Rptr. 527. to do so by the court after a hearing and that the moving party complied with the a showing of good cause. informal discovery procedure provided E. Reciprocal Discovery and the Effects in this subdivision, a court may make or Proposition 115 on the Attomey· Penal Code section 1054.3. Defense any order necessary to enforce the provi­ Client Privilege counsel; disclosure of information to sions of this chapter, including, but not 1. Statutory Authority prosecution limited to, immediate disclosure, con­ The defendant and his or her attorney tempt proceedings, delaying or prohibit­ Proposition 115, passed in June, 1990, shall disclose to the prosecuting attorney: ing the testimony of a witness or the pre­ amended the California Constitution by (a) The names and addresses of per­ sentation of real evidence, continuance of permitting reciprocal discovery in crimi­ sons, other than the defendant, he or she the matter, or any other lawful order. nal cases. Furthermore, Proposition 115 intends to call as witnesses at trial, to­ Further, the court may advise the jury of added Chapter 10 to the California Penal gether with any relevant written or re­ any failure or refusal to disclose and of Code. This Chapter (listed below) enu­ corded statements of those persons, or any untimely disclosure. merates the specific items of evidence reports of the experts made in connection (c) The court may prohibit the testi­ that the prosecution and defense must with the case, and including the results of mony of a witness pursuant to subdivi­ make available upon request. physical or mental examinations, scien­ sion (b) only if all other sanctions have tific tests, experiments, or comparisons been exhausted. The court shall not dis­ Penal Code section 1054.1. Prosecuting which the defendant intends to offer in miss a charge pursuant to subdivision (b) attorney; disclosure of materials to the evidence at the trial. unless required to do so by theConstitu­ defendant (b) Any real evidence which the de­ tion of the United States. The prosecuting attorney shall dis­ fendant intends to offer in evidence at the close to the defendant or his or her attor­ trial. Penal Code section 1054.6. Work ney all of the following materials and product privilege information, if it is in the possession of Penal Code section 1054.4. Neither the defendant nor the pros­ the prosecuting attorney or if the pros­ Nontestimonial evidence ecuting attorney is required to disclose ecuting attorney knows it to be in the Nothing in this chapter shall be con­ any materials or information which are possession of the investigating agencies: strued as limiting any law enforcement work product as defined in subdivision (a) The names and addresses of per­ or prosecuting agency from obtaining (c) of Section 2018 of the Code of Civil sons the prosecutor intends to call as wit­ non testimonial evidence to the extent Procedure, or which are privileged pur­ nesses at triaL permitted by law on the effective date of suant to an express statutory provision, (b) Statements of all defendants. this section. or are privileged as provided by the Con­ (c) All relevant real evidence seized or stitution of the United States. obtained as a part of the investigation of Penal Code section 1054.5. Criminal the offenses charged, cases; discovery orders; informal '*NOTE: This section and its relation (d) The existence of a felony convic­ request; testimony of witnesses; to work product are dealt with more ex­ tion of any material witness whose cred- prohibition tensively below.

12 2nd & 3rd Quarters, 1994 CALIFORNIA DEFENDER ...•--_._ .... _... _------

Penal Code section 1054.7. Disclosure Amendment Due Process Clause as it within the discovery provisions of the of information; time limitations provides that the defendant will have the measure. 233 Cal.App.3d at 696. The disclosures required under this opportunity to discover the prosecutor's Rodriguez v. Superior Court (1993) 14 chapter shall be made at least 30 days rebuttal witnesses (and their statements) CaLApp.4th 1260, 18 Cal.Rptr.2d 120, prior to the tria\' unless good cause is following discovery of defense witnesses held that, in a prosecution for rape, rob­ shown why a disclosure should be de­ by the prosecutor. bery, burglary, and first degree murder, nied, restricted or deferred. If the mate­ The Izazaga court rejected the defense defend.mt's statement to a psychologist, rial and information becomes known to, challenge that the discovery provision made at his counsel' 5 behest for purposes or comes into the possession of, a party violates the 6th Amendment right to of evaluation in preparation of the de­ within 30 days of trial, disclosure shall be counsel by chilling the defense counsel's fense case, came within Evidence Code made immediately, unless good cause is preparation: section 952, a privileged communication shown why a disclosure should be de­ ... Under the new discovery chapter, under the attorney-client privilege. The nied, restricted or deferred. "Good a criminal defendant need disclose court further held that under Penal Code cause" is limited to threats or possible only those witnesses (and their section 1054.6, information within the danger to the safety of a victim or wit­ statements) the defendant intends statutory attorney-client privilege is not ness, possible loss or destruction of evi­ to call a t trial. It is logical to assume subject to disclosure at the time a witness dence, or possible compromise of other that only those witnesses defense is designated pursuant to Penal Code investigations by law enforcement. counsel deems helpful to the de­ section 1054.3: Upon the request of any party, the fense will appear on a defendant's court may permit a showing of good witness list. The identity of damag­ We conclude that the privilege pro­ cause for the denial or regulation of dis­ ing witnesses that the defense does vision of section 1054.6 is meant to closures, or any portion of that showing, not intend to call at trial need not be modify and affect the blanket disclo­ to be made in camera. A verbatim disclosed. 54 CaL3d at 379. sure provisions of section 1054.3. records shall be made of any such pro­ Accordingly, we interpret section ceeding. If the court enters an order 3. Scope of disclosure 1054.3 as requiring disclosure of in­ granting relief following a showing in formation when the witness is des­ camera, the entire record of the showing Hobbs v. Municipal Court (1991) 233 ignated unless that information is shall be sealed and preserved in the Cal.App.3d 670, 284 CaLRptr. 655, de­ privileged by "express statutory records of the court, and shall be made cided the same year as [zazaga, also up­ provision" or otherwise protected available to an appellate court in the held the constitutionality of the discov­ as work product. Such an interpre­ event of an appeal or writ. In its discre­ ery provisions of Proposition 115. tation construes each statutory pro­ tion, the trial court may after trial and Hobbs, charged in a felony complaint vision (1054.3 and 1054.6) in light of conviction, unseal any previously sealed with residential burglary, had his charge the other, is an harmonious inter­ matter. reduced to a misdemeanor at the conclu­ pretation, is reciprocal in effect, and sion of the preliminary hearing. He at­ does not render section 1054.6 a nul­ 2. Validity tacked the constitutionality of the discov­ lity. 14 Cal.App.4th at 1269. ery provisions of Proposition 115, and In lzazaga v. Superior Court, the Cali­ also argued that the discovery provisions Therefore, even though the psycholo­ fornia Supreme Court affirmed the con­ of Proposition 115violatethework prod­ gist was designated as a defense witness, stitutionality of the above sections, hold­ uct doctrine. In striking down these ar­ the defense did not have to disclose prior ing that Penal Code section 1054 et seq., guments, as well as the one the Proposi­ to trial the psychologist's report of does not compel a criminal defendant to tion 115 should not apply in misde­ defendant's remarks concerning the be a witness against oneself in violation meanor cases, the court stated: charged offenses. The court also held of the Fifth Amendmentto the Constitu­ The language of Proposition 115 makes that the partial disclosure to the prosecu­ tion. In this case the defendant was no distinction between felony and misdl.... tion before trial of defendant's psycho­ charged with rape and kidnapping. The meanor cases. Rather, it repeatedly refers logical report did not waive the attorney­ prosecutor moved for discovery of the to the "criminal justice system," and client privilege with respect to a deleted defense witnesses and the trial court "criminal cases". The Penal Code includes section of the report. [This section con­ granted the motion. The defense filed a misdemeanors as well as felonies in its tained defendant's remarks to the psy­ writ of mandate or Prohibition that the definitions of crimes... We also find signifi­ chologist concerning the charged of­ court of appeals summarily denied. The cant the fact that in the are of discovery, fenses.] The court reasoned that since the California Supreme Court upheld the PropOSition 115 repealed both the misde­ disclosure was done pursuant to a court denial of the writ by the court of appeals meanor statute and part of the felony stat­ order and was not voluntary, the waiver and concluded that the discovery provi­ ute that required discovery of police re­ of the privilege as to one aspect of a pro­ sions of Proposition 115 are valid under ports. Thus, where there were specific tected relationship does not necessarily the state and federal constitutions. The discovery statutes concerning felonies and waive the privilege as to other aspects of Court further held that Penal Code sec­ misdemeanors, the initiative dealt with the privileged relationship. The court tion 1054 et seq. affords defendants suffi­ both categories of crime. We conclude this cited the defense's good faith efforts to cient rights of reciprocal discovery to is strong evidence of legislative intent to comply with the court's order and coop­ meet the requirements of the 14th include misdemeanors as well as felonies erate with the prosecutor without waiv-

Volume 6, Number 2 & 3 13 b CAL I DEFENDER

ing any privilege regarding defendant's or deny them equal protection. attorney ought in good faith to statements about the alleged offense. Regarding the juvenile court context, obey; Citing the Rodriguez opinion, the the court in Robert S. v. Superior Court of (2) Violation of the oath taken by court in Sandeffer v. Superior Court (1993) Sonoma County (1992) 9 CaLAppAth the attorney to defend the 18 CaLApp.4th 672, 22 CaLRptr.2d 261, 1417,12 Cal.Rptr.2d 489, held that recip­ Const. and the la ws of the state held that the trial court exceeded its juris­ rocal discovery provisions applicable in and nation; or diction under Penal Code section 1054.5, criminal procE'pdings did not apply in (3) Violation of the duties of an subd. (b) (court may make any order nec­ juvenile delinquency proceedings, but attorney.(Bus. & Prof. Code sec. essary to enforce discovery provisions), that the juvenile court had discretionary 6103) by directing defense counsel to disclose authority to enter reciprocal discovery the identity of the expert and produce the order. expert's documents despite defense In the more recent case of People v. RULES OF PROFESSIONAL CONDUCT OF counsel's representations that he had not Sanchez (1994) W.L. 157932 (CaLApp. 2 THE STATE BAR OF CAUFORNIA yet made a decision as to whether to call Dist.), the court held that once some in­ the expert as a witness at triaL The deter­ criminating writings had been delivered Rule 1-100 - Rules of protosslonal mination of whether to call a witness, the to the trial court, the trial court could Conduct, in General. court held, is peculiarly within the dis­ furnish those writings to the prosecutor (A) Purpose and Function cretion of counsel, and even when coun­ without violating either the defendant's The following rules are intended to sel appears to be unreasonably delaying privilege against self-incrimination or regulate professional conduct of mem­ the publication of the decision to call a the reciprocal discovery statutes (Penal bers of the State Bar through discipline. witness, it is not within the province of Code sections 1054-1054.7). In this case, They have been adopted by the Board of the trial judge to step into counsel's the Public Defender representing governors of the State Bar of California shoes. The court further held that an or­ Sanchez, who was charged with murder, and approved by the Supreme Court of der requiring an expert witness in a was given some inculpatory writings California pursuant to Business and Pro­ criminal case to produce his or her done by the defendant. The writings fessions code sections 6076 and 6077 to "notes" in most instances goes beyond were not given to the lawyer by the de­ protect the public and to promote respect the specification of discoverable items set fendant, but by a third party. The Public and confidence in the legal profession. forth in Penal Code section 1054, Defender placed the writings in a sealed These rules together with any standards subd.(e). This section provides that dis­ envelope, and without informing the adopted by the Board of Governors pur­ covery of information pertaining to ex­ prosecutor, delivered them to the clerk of suant to these rules shall be binding upon pert witnesses shall include any reports the court. (Although counsel never did all members of the State Bar. or statements of the expert made in con­ explain why he turned these papers over For a willful breach of any of these nection with the case, as well as the re­ to the court, the court surmised that he rules, the Board of Governors has the sults of physical or mental examination, may have felt some professional obliga­ power to discipline members as pro­ scientific tests, experiments, or compari­ tion to do so). The court specifically did vided by law. sons which the defendant intends to offer not hold that counsel had a duty to tum The prohibition of certain conduct in in evidence at triaL over such writings, but limited its hold­ these rules is not exclusive. Members are In Peopie v. Superior Court (Sturm) ings to the actions of the court once the also bound by applicable law induding (1992) 9 CaLApp.4th 172, 11 Cal.Rptr.2d writings were disclosed. the State Bar Act. (bus. & Prof. Code, sec­ 652, the court held that Penal Code sec­ tion 6000 et seq.) and opinions of Califor­ tion 1054.3, subd.(a) [requiring the de­ F. Ethical Considerations Regarding nia Courts. Although not binding, opin­ fense to disclose to the prosecution the Attorney-Client Privilege and the ions of ethics committees in California Confidentiality of Information witnesses it intends to call "at trial,"1 in­ should be consulted by members for cludes those witnesses the defense in­ 1. Statutory Authority guidance on proper professional con­ tends to call during the penalty phase of duct. Ethics opinions and rules and stan­ a capital triaL The court held that Penal All persons licensed to practice law in dards promulgated by other jurisdic­ Code section 190.3, [which requires ex­ California are bound by the statutes com­ tions and bar associations may also be clusion of aggravating evidence prof­ prising the State Bar Act (Business and considered. fered by the prosecution in the penalty Professions Code sections 6000-6228) These rules are not intended to create phase of a homicide prosecution unless and the Rules of Professional Conduct new civil causes of action. Nothing in the defense has been given notice of itl, (Rules 1-100 - 5-320). An attorney who these rules shall be deemed to create, does not control penalty phase discovery willfully breaches any of the Rules of augment, diminish, or eliminate any sub­ procedures so as to preempt the recipro­ Professional Conduct can be disciplined stantive legal duty of lavvyers or the non­ cal discovery provisions of Penal code by public or private reproval, or by sus­ disciplinary consequences of violating section 1054 et seq. The court further pension from practice (Bus. & Prof. Code such a duty. held that to interpret the reciprocal dis­ sec. 6077). Similarly, an attorney can be covery provisions to require the disclo­ disbarred or suspended for any of the (B) Definitions. sure of defense witnesses to be called in following: (1) "Law Firm" means: the penalty phase does not violate the (1) Willful disobedience or viola­ (a) two or more lawyers whose ac­ due process rights of capital defendants tion of a court order which the tivities constitute the practice of

14 2nd & 3rd Quarters, 1994 CALIFORNiA D E F F N D E _R______

----~-~ .. ---.~

law, and who share its profits, Hons who are not members: tion of a party or witness, unless expenses, and liabilities; or These rules shall also govern the required by the justice of the cause (b)a law corporation which em­ activities of lawyers while en­ with which he or she is charged. ployees more than one lawyer; gaged in the performance of law­ or yer functions in this state; but (g) Not to encourage either the com­ (d a division, department, office, nothing contained in these rules mencement or the continuance of an or group within a business en­ shall be deemed to authorize the action or proceeding from any cor­ tity, which includes more than performance of such functions by rupt motive of passion or interest. one lawyer who performs legal such persons in this state except as services for the business entity; otherwise permitted by law. (h) Never to reject, for any consider­ or ation personal to himself or her­ (d)a publicly funded entity which (E) These rules may be cited and self, the cause of the defenseless or employs more than one lawyer referred to as "Rules of Professional the oppressed. to perform legal services. Conduct of the State Bar of California. (2) "Member" means a member of the (i) To cooperate and participate in State Bar of California. Rule 1-110. Disciplinary Authority of the any diSciplinary investigation or (3) "Lawyer" means a member of the SiateBar. other regulatory or diSciplinary State Bar of California or a person A member shall comply with condi­ proceeding pending against the at­ who is admitted in good standing tions attached to public or private torney. However, this subdivision of and eligible to practice before reprovals or other discipline adminis­ shall not be construed to deprive the bar of any U.S. court or the tered by the State Bar pursuant to Busi­ an attorney of any privilege guar­ highest court of the District of Co­ ness and Professions Code sections 6077 anteed by the Fifth Amendment to lumbia or any state, territory, or and 6078 and rule 956, California Rules of the Constitution of the United insular possession of the United Court. States or any other constitutional States, or is licensed to practice law or statutory privileges. in, or is admitted in good standing Business and Professions Code and eligible to practice before the section 6068. Duties of attorney. (j) To comply with the requirements bar of the highest court of, a for­ It is the duty of an attorney to do all of of Section 6002.1. (Official mem­ eign country or any political sub­ the following: bership records; maintenance of division thereof. information; service of notice initi­

(4) U Associate" means an employee (a) To support the Constitution and ating proceedings; availability of or fellow employee who is em­ laws of the United States and of information on records; form for ployed as a lawyer. this state. reports) (5) "Shareholder" means a share­ holder in a professional corpora­ (b) To maintain the respect due to the (k)To comply with all conditions at­ tion pursuant to Business and Pro­ courts of justice and judicial offic­ tached to any disciplinary proba­ fessions Code section 6160 et seq. ers. tion, including a probation im­ posed with the concurrence of the (C) Purpose of Discussions. (c) To counselor maintain such ac­ attorney. Because it is a practical impossibility tions, proceedings, or defenses to convey in black letter form all of the only as appear to him or her legal (I) To keep all agreements made in nuances of these disciplinary rules, the or just, except the defense of a per­ lieu of disciplinary prosecution comments contained in the Discussions son charged with a public offense. with the agency charged with at­ of the rules, while they do not add inde­ torney discipline. pendent basis for imposing discipline, (d)To employ, for the purpose of are intended to provide guidance for in­ maintaining the causes confided to (m) To respond promptly to reason­ terpreting the rules and practicing in him or her such means only as are able status inquiries of clients and compliance with them. consistent with truth, and never to to keep clients reasonable in­ seek to mislead the judge or any formed of significant develop­ (D) Geographic Scope of Rules. judicial officer by an artifice or ments in matters with regard to (1) As to members: false statement of fact or law. which the attorney has agreed to These rules shall govern the activi­ provide legal services. ties of members in and outside this (e) To maintain inviolate the confi­ state, except as members lawfully dence, and at every peril to himself The attorney also has a duty to pro­ practicing outside this state may or herself to preserve the secrets, of vide copies to the client of certain docu­ be specifically required by a juris­ his or her client. ments under time limits and as pre­ diction in which they are practic­ scribed by the Rules of Professional Con­ ing to follow rules of professional (f) To abstain from all offensive per­ duct (Bus. & Prof. Code section 6068(n». conduct different from these rules. sonality, and to advance no fact Under specified conditions, such as the (2) As to lav..)'ers from other jurisdic- prejudicial to the honor or reputa- bringing of an indictment charging a

Volume 6, \lumber 2 & 3 15 t CAL I R N I A DEFENDER

felony against the attorney, the attorney People v. Pic'/ (1982) 31 Ca1.3d 731, 183 knows or when it is obvious that such must make written reports to the State Cal.Rptr. 685). action would serve merely to harass Bar (Bus. & Prof. Code section 6068(0». or maliciously injure another. A.B.A. MODEL RULES OF PROFESSIONAL 2. Professional Relationship with CONDUCT (2) KnOWingly advance a claim or de­ Clients fense that is unwarranted under exist­ a. Scope of Representation Rule :1..2 Seope of Repre_ntatlon ing law. except that he may advance (a) A lawyer shall abide by a client's such claim or defense if it can be sup­ RULES OF PROFESSIONAL CONDUCT OF decisions concerning the objec­ ported by good faith argument for an THE STATE BAR OF CALIFORNIA tives of representation, subject to extension, modification, or reversal of paragraphs (c), (d) and (e), and existing law. Rule 3-110: Failing to Act Competently shall consult with the client as to (A) A member shall not intentionally, the means by which they are to be (3) Conceal or knowingly fail to disclose recklessly, or repeatedly fail to pursued. A lawyer shall abide by that which he is required by law to perform legal services with compe­ a client's decision whether to ac­ reveal. tence. cept an offer of settlement of a maUer. In a criminal case, the law­ (4) Knowingly use perjured testimony or (B) For purposes of this rule, "compe­ yer shall abide by the client deci­ false evidence. tence" in any legal service shall mean sion, after consultation with the to apply to the 1) diligence, 2) learning lawyer, as to a plea to be entered, (5) KnOWingly make a false statement of and skill, and 3) mental, emotional, whether to waive jury trial and law or fact. and physical ability reasonably whether the client will testify. necessary for the performance of such (b) A lawyer's representation of a cli­ (6) Participate in the creation or preser­ service. ent, including representation by vation of evidence when he knows or appointment, does not constitute it is obvious that the evidence is false. (C) If a member does not have an endorsement of the client's po­ sufficient learning and skill when the litical, economic, social or moral (7) Counselor assist his client in conduct legal service is undertaken, the views or activities. that the la'WYer knows to be illegal or member may nonetheless perform (c) A lawyer may limit the objectives fraud ulent. such services competently by 1) of the representation if the client associating with or, where appropri­ consents after consultation. (8) Knowingly engage in other illegal ~onduct or coI\<:llJd contrary to a Dis­ ate, professionally consulting another (d) A la'WY~r shall not counsel a c1i~I}t lawyer reasonably believed to be to engage: or assist a client. in con­ Ciplinary Rule. competent, or 2) by acquiring suffi­ duct that thgJawyer knows is cient learning and skill before (B) A lawyer who receives Infonnation criminal or fraudulent, but a law­ clearly establishing that: performance is required. y~LIl}(ly discuss the legal conse­ quences of any proposed course of (1 ) Hisc::lient has, in the course of the rep: Rule 3-210: Advising the Violation of Law conduct with a!;!ient and may resentation, perpetrated a fraud upon A member shall not advise the viola­ counselor assist a client to make a a person or tribunal shall promptly call upon his client to rectify the same, tion of any law, rule, or ruling of a tribu­ good faith ~ffort to determine the nal unless the member believes in good validity, scope, meaning or appli­ iln if his client refuses OIis unable t9 faith that such law, rule, or ruling is in­ cation of the law. go so, he shall reveal the fraud to the valid. A member may take appropriate (e) When a lawyer knows that a client ilffected person or tribunaL except steps in good faith to test the validity of expects assistance not permitted when the information is protected as any law, rule, or ruling of a tribunal. by the rules of professional con­ a privileged <;Qmmunication. Rule 3-210 is intended to apply not duct or other law, the lawyer shall only to the prospective conduct of a cli­ consult with the client rC'garding (2) a person other than his client has per­ ent but also to the interaction between the relevant limitations on the petrated a fraud upon a tribunal shall the member and client and to the specific lawyer's conduct. promptly reveal the fraud to the tribu­ legal service sought by the client from the nal. member. An example of the former is the COMPARISON· A.B.A. MODEL CODE OF handling of phYSical evidence of a crime PROFESSIONAL RESPONSIBILITY *NOTE:Qisct.p.linary Power: The in the possession of the client and offered Model Code makes no attempt to pre­ to the member. (See People v. Meredith Disciplinary Rule 7-102: Repf9lll8ntlng a scribe either the disciplinary procedures (1981) 29 Cal.3d 682, 175 CaLRptr. 612). Client Within the Bounds of the Law or penalties for violation of a Disciplin­ An example of the latter is a request that (A) In his representation of a client, a ary Rule, nor does it undertake to define the member negotiate the return of stolen lawyer shall not: standards for civil liability of lawyers for property in exchange for the owner's (1) File a suit, assert a position, conduct a professional conduct. The Model Code agreement not to report the theft to the defense, delay a trial, or take other seeks only to specify conduct for which a police or prosecutorial authorities. (See action on behalf of his client when he lawyer should be disciplined by courts

16 2nd & 3rd Quarters, 1994 A DEFENDER

and governmental agencies which have offered material evidence and necessary to prevent the crime. adopted it. comes to know of its falsity, the (4) Confidences or secrets necessary la wyer shall take reasonable reme­ to establish or collect his fee or to b. Confidentiality of Information dial measures. defend himself or his employees See Business and Professions Code or associations against an accusa­ section 6068(e). (blThe duties stated in paragraph (a) tion of wrongful conduct. continup to the conclusion of the pro­ A.B.A. MODEL RULES OF PROFESSIONAL ceeding, and apply even if compli­ (D) A lawyer shall exercise reasonable CONDUCT ance requires disclosure of informa­ care to prevent his employees, tion otherwise protected by Rule 1.6. associates, and others whose services Rule 1.6 Conftdentlallty of Information are utilized by him from disclosing or (a) A lawyer shall not reveal information (c) A la wyer may refuse to offer evidence using confidences or secrets of a relating to representation of a client that the lawyer reasonably believes is client, except that a lawyer may reveal unless the client consents after consul­ false. information allowed by DR 4-101 (C) tation, except for disclosures that are through an employee. impliedly authorized in order to carry (d)In an ex parte proceeding, a lawyer The California Rules of Professional out the representation, and except as shall inform the tribunal of all mate­ Conduct, based in part on the old A.B.A. stated in paragraph (b). rial facts known to the lawyer which Model Code, are unaffected by the new will enable the tribunal to make an in­ A.B.A. Model Rules, and there are no (b) A lawyer may reveal such informa­ formed decision, whether or not the current plans for adoption of the Model tion to the extent the lawyer reason­ facts are adverse. Rules in this state. It is likely, however, ably believes necessary: that California courts and lawyers will A.B.A. MODEL CODE OF PROFESSIONAL find the Model Rules both helpful and (1) to prevent the client from commit­ RESPONSIBILITY persuasive in situations where the cover­ ting a criminal act that the lawyer age of the California Rules of Profes­ believes is likely to result in immi­ Disciplinary Rule 4-101 Preservation of sional Conduct is unclear or inadequate. Confidences and Secrets of a Client nent death or substantial bodily The Comment to the A.B.A. Model harm; or (A) "Confidence" refers to informa­ Rule 1.6 states that a lawyer may foresee (2) to establish a claim or defense on tion protected by the attorney-client that the client intends serious harm to behalf of the lawyer in a contro­ privilege under appHcable law, and another, but if disclosure is required or versy between the lawyer and the "secret" refers to other information permitted the client will be inhibited client, to establish a defense to a gained in the professional relation­ from revealing facts which would enable criminal charge or a civil claim ship that the client has requested be the lawyer to counsel against wrongful against the lawyer based upon held inviolate or the disclosure of action. If further goes on to advise that conduct in which the client was in­ which would be embarrassing or where practical, the lawyer should seek volved, or to respond to allega­ would be likely to be detrimental to to persuade the client to take suitable tions in any proceeding concern­ the client. action; and in any case disclosure should ing the lawyer's representation of be no greater than the lawyer reasonably the client. (B) Except when permitted under DR believes necessary. 4-101(0, a lawyer shall not know­ The Comment also distinguishes sev­ Rule 3.3 Candor Toward the Tribunal ingly: eral situations: (1) A lawyer may not (a) A lawyer shall not knowingly: (1) Reveal a confidence or secret of his counselor assist in conduct that is crimi­ client. nal or fraudulent, or use false evidence; (1) make a false statement of material (2) Use a confidence or secret of his (2) A lawyer innocently involved in past fact or law to a tribunal; client to the disadvantage of the criminal or fraudulent conduct has not client. violated Rule 1.2(d) (above); i.e., "coun­ (2) fail to disclose a material fact to a (3) Use a confidence or secret of his sel or assist" requires knowledge of the tribunal when disclosure is neces­ client for the advantage of himself criminal or fraudulent character; (3) A sary to avoid assisting a criminal or of a third person, unless the cli­ lawyer who learns that a client intends or fraudulent act by the client; ent consents after full disclosure. prospective criminal conduct likely to (C) A lawyer may reveal: result in imminent death or substantial (3) fail to disclose to the tribunal legal (1) Confidences or secrets with the bodily harm has discretion to reveal the authOrity in the controlling juriS­ consent of the client or clients af­ information when he reasonably be­ diction known to the lawyer to be fected, but only after a full disclo­ lieves that this purpose will be carried directly adverse to the position of sure to them. out. the client and not disclosed by op­ (2) Confidences or secrets when per­ 3. Client's Intention to Commit a Future posing counsel; or mitted under Disciplinary Rules or Crime required by law or court order. (4) offer evidence that the lawyer (3) The intention of his client to com­ Any communication made by the de­ knows to be false. If a lawyer has mit a crime and the information fendant to his or her attorney of an inten-

Volume 6, Number 2 & 3 17 • ALIFOR o E FEN _~~~R~ ______

tion to commit a crime is not privileged taking undue advantage of their held that the work product rule was not under California law. (Evidence Code adversary's industry and efforts. applicable in California. Greyhound Corp. section 956.5) Under the American Bar v. Superior Court (1961) 56 Cal. 2d 355, Association's Professional Responsibil­ (c) Any writing tha t reflects an 401,15 Cal. Rptr. 90, 364 P.2d 266. Grey­ ity Code and Model Rules, such a com­ attorney's impressions, conclu­ hound was a personal injury suit arising munication may and perhaps should be sions, opinions, or legal research from a collision with a bus. Plaintiffs' rpvpa1pd hy the attorney, as wpll as any or theories shall not be discover­ counsel was unable to locate witnesses to information necessary to prevent the able under any circumstances. the accident despite diligent efforts and crime. (See AB.A. Model rules ofProfes­ sought an order requiring defendant to sional Conduct, Rules 1.6(b)(1) [above], B. Work Product Protection-General disclose the written statements of wit­ 3.3(a)(2); A.B.A. Code of Professional A claim of work product operates like nesses collected at the scene by defen­ Responsibility, DR 4-101(C)(3) [above]) a privilege to prevent disclosure of par­ dant's investigators. In upholding the Thus, the California Supreme Court has ticular information. Under most circum­ trial court's discovery order, the Califor­ approved of a defense attorney s request stances, it protects the private work of an nia Supreme Court held that the work to speak to the trial judge in camera, and attorney from discovery. It is defined in product privilege was not applicable in informing the judge that the defendant the Cal. Code Civil Procedure, section California and refused to apply the may attempt to escape and that it might 2018(c) as any writing that reflects an Hickman work product rule, stating: be wise to order the defendant hand­ attorney's impressions, conclusions, This is not to say that discovery may cuffed during the trial. (People v. Cox opinions, legal research or theories. not be denied, in proper cases, when dis­ (1991) 53 Cal. 3d 618,651-52, 280Cal.Rptr. However, without any more guidance as closure of the attorney's efforts, opinions, 692,809 P.2d 351lattorney's revealing of to the meaning of "work product" mate­ conclusions or theories would be against rumor, although permitted and perhaps rial, a determination must be made by public policy ... or would be eminently obligated, was insufficient to constitute the court on a case by case basis as to unfair or unjust, or would impose an manifest need, thus shackling and hand­ whether a writing falls within its protec­ undue burden. cuffing should not have been ordered tion. Even though the doctrine was never without a greater showing]) The United States Supreme Court in officially recognized, between the Grey­ Nothing in the California Codes Hickman v. Taylor, (1947) 329 U.s. 495, 91 hound decision in 1961 and the adoption places an affirmative duty upon the at­ L.ed. 451, 67 S. Ct. 385, stated: of the Civil Discovery Act in 1963, the torney to reveal his client's intention to Proper preparation of a client's case work product rule became de facto law commit a crime. (See B.4., above) demands that he assemble information, in California. In court cases, the concept sift what he considers to be the relevant of work product was recognized, not as from the irrelevant facts, prepare his le­ an absolute bar to discovery, but as one II. AnORNEY'S WORK PRODUCT gal theories and plan his strategy with­ circumstance to be considered by a court PROTECTION out undue and needless interference. in exercising its discretion to determine That is the historical and the necessary whether or not discovery was fair and A. StatutOlY Authority way in which lawyers act within the equitable under the circumstances. 1. Penal Code section 1054.6 provides: framework of our system of jurispru­ Neither the defendant nor the pros­ dence to promote justice and to protect D. PROPOSmON 115 ecuting attorney is required to dis­ their client's interests. This work is re­ The work product rule was held to close any materials or information flected, of course, in interviews, state­ apply to criminal cases even before the which are work product as defined in ments, memoranda, correspondence, passage of Proposition 115 codified the subsection (c) of Section 2018 of the briefs, mental impressions, personal be­ protection in the Penal Code. In People v. Code of Civil Procedure, or which are liefs, and countless other tangible and Collie, (1981) 30 Cal. 3d 43, 177 Cal. Rptr. privileged pursuant to an express intangible ways- aptly though roughly 458, 634 P.2d 534, the defendant was statutory provision, or are privileged termed by the Circuit Court of Appeals charged with attempted first degree as provided by the Constitution of the in this case as the 'work product of the murder of his wife and attempted second United States. lawyer. 329 U.5. at 511. degree murder of his child. During triat In California, courts have identified a defense witness testified that she had 2. California Code of Civil Procedure attorney work product "as material spoken with a defense investigator prior section 2018 provides in pertinent which is derivative in character, not ulti­ to trial. The prosecution moved for dis­ part: mate facts but material compiled by the covery of the notes prepared by the in­ (a) It is the policy of the state to: (1) attorney in preparation of his or her vestigator. Over the defense objection on preserve the rights of attorneys to case". In re Jeanette H. (1990) 225 Cal. the basis of the work-product doctrine prepare cases for trial with tha t de­ App.3d 25, 32, 275 Cal. Rptr. 9. and attorney-client privilege, the court gree of privacy necessary to en­ ordered production of those notes and courage them to prepare their C. Adoption of Work Product Rule In the defendant was convicted. The Cali­ cases thoroughly and to investi­ California fornia Supreme Court reversed the con­ gate not only the favorable but the California was slow to adopt the prin­ viction on other grounds, but found that unfavorable aspects of those cases; ciples of the work product rule. In an the trial court violated the work product and (2) to prevent attorneys from early case, the California Supreme Court privilege in granting the prosecution's

18 2nd & 3rd Quarters, 1994 END E R

discovery motion. This error was found specifically cites to the definition of work ery in criminal cases in Nobles, to be harmless. The court discussed the product in the Code of Civil Procedure, supra, 422 U.s. 225, is not based on applicability of the work product doc­ counsel should examine and cite to the the right to counsel clause; rather it trine as follows: vast body of cases in the civil context that is a form of federally created privi­ have attempted to define the meaning of lege based upon federal supervisory We have never explicitly held the "work product". policy and federal statute. (Citations work product doctrine applicable to However, counsel must examine the omitted). There is no privilege for criminal cases and neither has the earlier cases carefully to determine the attorney work product in the Cali­ Legislature, although it has codified basis for the court finding that material is fornia Constitution. Because the the rule as to civil trials. (Code Civ. protected as "work product". If the court work product doctrine is not consti­ Pro. section 2016(b». There is little found the writing to fall within the"ab­ tutionally founded, there is no basis reason, however, to withhold its solute" work product protection under for a facial challenge to the constitu­ protection from the criminally ac­ Code Civ. Procedure 2018(c), (absolute tionality of the new discovery chap­ cused. As the United States Su­ protection for impressions, opinions, ter on work product grounds. preme Court held in "Al­ etc), then this finding would be relevant though the work product doctrine to a determination in the criminal con­ Moreover, we note the new discovery most frequently is asserted as a bar text. However, if the court found a writ­ chapter expressly provides that attorney to discovery in civil litigation, its ing to be conditionally protected under work product is nondiscoverable. Be­ role in assuring proper functioning Code Civ. Procedure 2018(b), (qualified cause there is no constitutional basis for of the criminal justice system is even protection which must be disclosed to a work product privilege, any protection more vital. The interests of society avoid injustice), than this material would in California of the work product of an and the accused in obtaining a fair not be protected under the criminal code. attorney must be based on state common and accurate resolution of the ques­ E. The Constitutionality of the Discov­ or statutory law. 54 Cal. 3d at 381. tion of guilt or innocence demand ery and Work Prodnct doctrine that adequate safeguards assure the Proposition 115 created a new "recip­ F. Attomey.cllent Privilege and Work thorough preparation and presenta­ rocal discovery" system in criminal pros­ Product distinguished tion of each side of the case." ecutions in California. Penal Code sec­ California Evidence Code sections 30 Cal.3d at 59. tion 1054 1054.7. Prior to this provision, 950-962 govern the privilege between the work product doctrine had little ap­ lawyer and client. It preserves the confi­ Proposition 115 passed by the voters plication in criminal prosecutions since dentiality of communications between in California in June of 1990 created a the prosecution had few rights to discov­ the lawyer and the client with the pur­ new"reciprocal discovery" provision for ery of defense materiaL However, with pose of encouraging full disclosure and criminal cases by the addition of sections the passage of Proposition 115, the work open communications within this rela­ 1054 - 1054.7 to the Penal Code. Penal product doctrine will be an important tionship. Code section 1054.6 explicitly provides means by which each party will attempt This privilege should be distin­ for the application of the work product to resist disclosure of material. guished from an attorney's work-prod­ doctrine to criminal discovery. This pro­ In Izazaga v. Superior Court (1991) 54 uct rule which protects the "work-prod­ vision states that neither the defendant Cal. 3d 356,285 Cal. Rptr. 231, 815 P.2d uct" of the attorney from discovery by nor the prosecution can be reqUired to 304, the California Supreme Court found opposing counsel. This protection is disclose any material or information that these discovery provisions to be constitu­ governed by the Code of Civil Procedure is work product as defined in Code Civ. tional. In this case the defendant was section 2018. Under this section any writ­ Pro. section 2018(c). This included any charged with rape and kidnapping. The ing that reflects an attorney's impres­ writings that reflect an attorney's im­ prosecutor moved for discovery of the sions, conclusions, opinions, or legal re­ pressions, conclusions, opinions, or legal defense witnesses and the trial court search or theories is not discoverable research or theories is provided absolute granted the motion. The defense filed a under any circumstances. Other matters protection. The work product doctrine writ of mandate or prohibition that the that may constitute an attorney's work for criminal cases, therefore, does not court of appeals summarily denied. The product may be discoverable if the court include the conditional protection af­ California Supreme Court upheld the deems that denial of the discovery will forded civil litigants under Code Civil denial by the court of appeals and con­ (1) unfairly prejudice the party seeking Pro section 2018(b) that protects any cluded that the discovery provisions of discovery or (2) result in an injustice. product of an attorney unless the protec­ proposition 115 are valid under the state Code Civ. Proc. Section 2018(b). tion will result in an injustice. and federal constitutions. The court re­ In many situations the attorney-client Penal Code section 1054.6 does not jected the defense challenge that the dis­ privilege and the work product rule appear to change the law with respect to covery provision violates the sixth overlap, as for instance, when an investi­ the absolute protection of the work prod­ amendment right to counsel provision as gator for the attorney obtains informa­ uct privilege, but only to codify existing enunciated in Hickman v. Taylor (1947) tion from the client and transmits a re­ law. Therefore, counsel should be able to 329 U.s. 495. The court reasoned: port to the attorney. The two are, how­ rely upon earlier precedents in determin­ ever, separate and distinct and differ in ing the scope and meaning of the doc­ The doctrine developed in Hickman several important respect: (1) statutory trine. In addition, since the Penal Code and applied in the context of discov- basis, (2) purposes, and (3) holders.

Volume 6, Number ~ & 3 19 CAL I o R N I A DEFENDER

In BP Alaska Exploration, Inc. v. Supe­ that a witness list is not protected under writing reflecting the private thought rior Court (1988) 199 Cal. App. 3d 1240, the work product doctrine. The court of processes of a lawyer acting on behalf of 1256,245 Cal. Rptr. 682, quoting United appeals upheld this ruling and discussed a client at the beginning of a business States v. American Tel. and Tel. Co. (D.C. the scope of the work product doctrine in deal and the thoughts of a lawyer when Cir. 1980) 642 F.2d 1285, 1299, the court criminal cases stating: that business deal goes sour with result­ contrasted the purposes of the attorney­ ant litigation. 143 Cal. App.3d at 812. client privilege and the work product [T]c the extent that witnesses' state­ The COllrt went on to reason: rule [ef. Admiral Ins. v. U.S. Dist. Court For ments and reports of witness inter­ Dist. Of Ariz. (9thCir. 1989)881 F.2d 1486, views reflect merely what the wit­ In light of the legislative effort de­ 1494J: ness said they are not work product voted to the statute, it is reasonable As the high court said in Nobles 422 to believe that had the Legislature The attorney-client privilege exists U.s. at p. 238, 'At its core, the work intended to limit the privilege to liti­ to protect confidential communica­ product doctrine shields the mental gation only it would have said so. tions, to assure the client that any processesoftheattorney, providing The Legislature not only failed to statements [the client} makes in a privileged area within which he provide for any such limitation but seeking legal advice will be kept can analyze and prepare his client's in section 3 declared its intent that strictly confidential between [the cli­ case. (citations omitted) To the ex­ the courts were not to be con­ ent and the client's] attorney; in ef­ tent that a report of a witness inter­ strained in their interpretation of the fect, to protect the attorney-client view reflects an attorney's mental attorney's absolute work product relationship. By contrast, the work processes, it is exempted from dis­ privilege. 143 CaL App.3d at 815. product privilege does not exist to covery by section 1054.6 and a party protect a confidential relationship, can seek a protective order to that In Fellows v. Superior Court (1980) 108 but rather to promote the ad versary effect. (see Code Civ. Proc. section Cal. App. 3d 55, 68, 166 Cal. Rptr.274, the system by safeguarding the fruits of 2031(e) or an in camera review in defendants in an insurance bad faith case an attorney's trial preparations from which the privileged material can be sought to discover the entire legal file of the discovery attempts of the oppo­ excised. 233 Cal. App.3d at 693. the attorney who represented the plain­ nent. The purpose ofthe work prod­ tiffs in the underlying action. Holding uct doctrine is to protect informa­ The court then contrasted the applica­ the material in the file to be absolutely tion against opposing parties, rather tion of the work product doctrine in protected from discovery, the court than against all others outside a par­ criminal and civil cases and observed stated: ticular confidential relationship, in that in the criminal context, the Initiative order to encourage effective trial limited its scope to provide only an abso­ The language of [the statute] is clear preparation. lute privilege to those writings that re­ and explicit. It offers no opportu­ flect "an attorney's impressions, opin­ nity for compromise or variation, The attorney-client privilege belongs ions, or legal research, or theories". The There is no authorization for the to the client and only the client can waive provision did not embrace the broader, court to weigh or balance any com­ the privilege. In contrast, the work prod­ qualified work product privilege set peting interests between the party uct protection belongs to the attorney, forth in the Code of eiv. Pro. 2018(c). seeking disclosure and the party re­ not the client, although a client may be In Rumac Inc. v. Bottomly (1983) 143 sisting disclosure. Invocation ofthe able to assert the work product rule in the Cal. App.3d 810, 192 Cal. Rptr. 104, plain­ attorney's work product privilege attorney's absence. Lasky, Haas, Cohler & tiff landowners subpoenaed certain with respect to such a document Munter v. Superior Court (1985) 172 Cal. documents that were prepared and in the precludes discovery since such a App. 3d 264, 218 Cal. Rptr. 205; Kerns possession of the attorney who had rep­ document "is protected absolutely Constr. Co. v. Superior Court (1968) 266 resented the defendant landowners dur­ from disclosure by the attorney's Cal. App. 2d 405, 411, 72 Cal. Rptr. 74. ing negotiations. The trial court granted work product privilege .. .. " [em­ the defendant's motion for a protective phasis in original; citation omitted} G. Work Product protection applies to an order finding that these documents were attorney's ilnPressions, conclusions, absolutely protected from discovery as In Rodriguez v. McDonnell Douglas opinions, legal research or theories. they represented the attorney's impres­ Corp. (1978) 87 Cal. App. 3d 626, 646, 648, Hobbs v. San Diego Mun. Court (People) sions, conclusions, opinions, etc. The 151 Cal. Rptr. 399, the court of appeal (1991) 233 Cal. App.3d 670, 284 Cal. Rptr. court also found that the privilege ap­ held that the work product rule pre­ 655, involved a misdemeanor prosecu­ plies even where the lawyer is not pre­ cluded the introduction at trial of the tion for burglary. The prosecutor filed a paring for trial but acting only as a con­ portion of the notes of an investigator notice and motion for discovery of a com­ sultant or a negotiator. The court held: employed by a codefendant's attorney plete list of defense witnesses. The trial Neither the text of the statute nor the that reflect the investigator's ,..fYrr>rn"·nt" court granted the motion and the defense policy underlying the creation of the ab­ about a witness's statements. The filed a writ of mandate Superior court. solute privilege warrants a class distinc­ tigator interviewed a witness and The court denied the writ and held that tion between the la ..;yer-negotiator and corded the witness's statements tOj.:;etller Penal Code section 1054.3 was constitu­ the lawyer-litigator. There is also no with the investigator'S comments tional as applied to misdemeanors and valid reason to differentiate between the those statements. The witness

20 2nd & 3rd Quarters, 1994 CALIFORNIA DEFENDER

quently left the jurisdiction, and the on ground that it was not in writing, and discoverable as they constitute "material witness's deposition was read at triaL held that the attorney-client privilege of a nonderivative or noninterpretive Another codefendant called the investi~ had been waived). nature". 140 CaL 3d at 660. The trial court gator as a witness and cross-examined denied this request and the court of ap­ the investigator on the contents of the I. Statements of witnesses are not peal upheld the order finding: notes. The appellate court held that the protected as work product portion~ of the lIotes thal recorded the Under the nc"" Penal Code sections The prosecuting attorney's discus­ witness's statements are nonderivative 1054 -1054.7 (passed as Proposition 115) sions with inmates appear to have or noninterpretative in nature, and thus the new reciprocal discovery provisions been trial preparation rather than in­ are not protected by the work product are set forth. These sections specifically vestigative sessions .... [Dlenial of rule. The portions of the notes that con­ provide for the discovery of statements access to these notes did not preju­ stitute the investigator's comments of witnesses that one side intends to call dice the defense's trial preparation. about the witness' statements are abso­ at trial Since section 1054.6 states thatthe 140 Cal. App.3d at 660, 661. lutely protected from disclosure as a work product of counsel is protected, it is writing that reflects an attorney's (or clear that the legislation did not intend to In People v. Alexander (1982), supra, the attorney's agent's) impressions, conclu­ include witness statements to fall within court applied the work product protec­ sions, opinions, legal research, or legal the work product protection. However, tion as defined in the Code of Civil pro­ theories. The appellate court held that in a response to a discovery request from cedure section 2018. It appears that the comments of the attorney's investigator, the prosecution, the defense could al­ court did not find the material was abso­ which are protected under the attorney­ ways raise a constitutional objection to lutely protected under 2018( C), but rather client privilege, were so intertwined with the disclosure of any material including that its disclosure could not be com­ the witness's recorded statements, which statements of witnesses. pelled under 2018(b). Under the new are unprotected under the attorney-cli­ Counsel should review earlier cases Penal Code section 1054.6, work product ent privilege, that all the notes on the where the defense made discovery re­ is protected only if it falls within the ab­ matter should be protected by the abso­ quests and faced government objections solute protection as defined in Code Civ. lute portion of the attorney's work prod­ to disclosure based upon "work-prod­ Pro.2018(c). It is therefore not clear how uct privilege. uct" doctrine. the court will handle this type of request In People v. Williams (1979) 93 CaL in the future. H. Protection for Opinion Work Product App.3d 40, 155 Cal. Rptr.414, thedefen­ Applies Onl, to Writings dant was convicted of forcible rape and J. Work Product Protection Extends to The term "writing," as used in Code aiding and abetting a rape. Prior to trial, Work of Agents of the Attome, of Civil Procedure section 2018(c), is de­ the defendant made a discovery motion In People v. Collie (I 981) 30 Cal. 3d 43, fined in Evidence Code section 250. The requesting notes of the prosecutors inter­ 177 Cal. Rptr. 458,634 P.2d 534, the de­ term has been broadly defined to include view with the victim. The trial court de­ fendant was charged with attempted most forms of tangible expression, see, nied the request finding that these notes first degree murder of his wife and at­ e.g., People v. Estrada,(1979) 93 Cal. App. were work product. The court of appeals tempted second degree murder of his 3d 76, 100, 155 Cal. Rptr. 731 (tape record­ reversed finding that the trial court erred child. During trial, a defense witness tes­ ings); People v. Moran, (] 974) 39 Cal. App. in admitting the trial testimony of the tified that she had spoken with a defense 3d 398, 408,410, 114 Cal. Rptr. 413, (pho­ victim from an earlier trial. The court also investigator prior to trial. The prosecu­ nograph records). found that it was error for the trial court tion moved for discovery of the notes Unlike the federal rule which protects to deny the defendant's discovery re­ prepared by the investigator. Over the an attorney's mental impressions (Fed. quest. The court stated: defense objection on the basis of the work Rules Civ. Proc., rule 26(b)(3», product doctrine and attorney-client California's absolute protection for opin­ It is well settled that there is no privilege, the court ordered production ion work product applies, on its face, attorney's work product privilege of those notes and the defendant was only to writings that reflect the attorney's for statements of witnesses since convicted. The Ca lifornia Supreme opinion. In practice, this limitation may such statements constitute material Court reversed the conviction based on not be significant. A legal opinion, in­ of a non-derivative or non-interpre­ the issue of an improper jury instruction cluding the attorney's impressions and tive nature. (citations omitted). 93 on the issue of intent for second degree conclusions, formed during the course of Cal. App.3d at 64-65. murder. However, the court did find that an attorney-dient relationship is privi­ the trial court violated the work product leged under Evidence Code section 952, In People v. Alexander (1983) 140 Cal. privilege in granting the prosecution's regardless of whether or not the opinion App.3d647, 189 Cal. Rptr. 906, thedefen­ discovery motion although this error has been communicated to the client. dant was convicted, inter alia, with con­ was found to be harmless. In discussing Lohman v. Superior Court,(1978) 81 CaL spiracy to commit murder in an incident the application of the work product doc­ App. 3d 90, 99, 146 Cal. Rptr. 171, but see arising out of a prison riot. The defense trine to criminal cases, the court quoted Merritt v. Superior Court,(1970) 9 Cal. requested discovery of notes made by United States v. Nobles, 422 U. S. 225, and App. 3d 721, 731, 88 Cal. Rptr. 337 (court correctional officer and the prosecutors stated: allowed discovery of materials that ap­ as a result of their interviews with in­ [T]he [work product I privilege pear to constitute opinion work product mates. The defense claims that these are should extend not just to the attorneys

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work product, but to the efforts of those grand jury and asked to identify a wit­ the [work product] doctrine at trial, who work with him to prepare the de­ ness to events immediately preceding for in this instance it is clear that the fense: 'At its core, the work product doc­ the murder. Braxton refused to answer defense waived such right as may trine shelters the mental processes of the and the court ruled that this information have existed to invoke its protection. attorney, providing a privileged area was protected under the attorney-client within which he can analyze and prepare privilege. On appeal the defense alleges The privilege derived from the work his client's case. Hut the doctrine is an that the governrnenl may not exlract in­ product doctrine is not absolute. Like intensely practical one, grounded in the formation from an accused or one of other qualified privileges, it may be realities of litigation in our adversary his\her agents based upon attorney-cli­ waived. Here, [the defendant] sought to system. One of those realities is that at­ ent privilege, confidential communica­ adduce the testimony of the investigator torneys must often rely on the assistance tions between attorney and client, the and contrast his recollection of the con­ of investigators and other agents in the privilege against self-incrimination, and tested statements with that of the compilation of materials for trial. It is a defendant's right to counsel. The court prosecution's witnesses. [Defendant], by therefore necessary that the doctrine pro­ of appeals concluded that under the cir­ electing to present the investigator as a tect material prepared by agents for the cumstances of the case, neither the attor­ witness, waived the privilege with re­ attorney as well as those prepared by the ney nor his investigator can be required spect to matters covered in his testimony. attorney himself'. 30 Cal. 3d at 59. by the grand jury to give testimony con­ [Defendant] can no more advance the In People v. Milner (1988) 45 CaL 3d cerning the investigation. The court held: work -product doctrine to sustain a uni­ 243, 246 Cal. Rptr. 713, the defendant was We hold, however, that the Sixth lateral testimonial use of work product convicted of first degree murder and sen­ Amendment right of representation of materials than he could elect to testify in tenced to death. At trial, at the request of counsel, unimpeded by interference of his own behalf and thereafter assert his the prosecutor, defense counsel volun­ the prosecution, together with the privi­ Fifth Amendment privilege to resist tarily turned over transcripts of three in­ lege against self-incrimination, preclude cross examination on matters reasonably terviews conducted with the defendant the questioning sought by the district at­ related to those brought out in direct ex­ by Dr. Solomon. Dr. Solomon was called torney in this case. A criminal amination. 422 U.S. at 2'39-240. as a defense witness at trial. On appeal, investigator's work product relating to a In People v. Melton (1988) 44 Cal. 3d the defense alleges that trial counsel was criminal investigation is privilege and 713,244 Cal. Rptr. 867, 750 P.2d 741, the ineffective in turning over material that once it has been established that the in­ defendant was convicted of first degree he was under no obligation to disclose; vestigator was retained by legal counsel murder, burglary and robbery and was specifically that these transcripts were hired to represent a suspect, the investi­ sentenced to death. At trial, the defense protected under the attorney-client privi­ gator cannot be forced to reveal the prod­ investigator testified about information lege and the work product doctrine. The uct of his investigation. 259 Cal. Rptr. at he learned from a government witness court of appeals disagreed finding that 413. about who had committed the killing. On Dr. Solomon was not an agent of the at­ cross examination, the prosecutor ques­ torney. The court held: K. Work Product privilege may be waived tioned the investigator about what was In United States v. Nobles, (1975) 422 done upon learning this information. Section 721, subdivision (a) of the U.S. 225, the defendant was convicted in The defense objected and argued that Evidence Code provides that an ex­ Federal court on charges arising from an questions concerning investigatory ef­ pert witness 'may be fully cross ex­ armed robbery of a bank. In preparing forts violated the attorney work -product amined as to ... (3) the matter upon for trial, a defense investigator inter­ privilege. The court allowed some in­ which his opinion is based and the viewed the two government witnesses quiry into action not taken by the inves­ reasons for his opinion," Once the and prepared reports reflecting these tigator and sustained the other defense defendant calls an expert to the conversations. These reports were used objections. On appeal, the defense re­ stand, the expert loses his status as during cross examination of these wit­ news their objection on work product consulting agent of the attorney, nesses. During the defense case, the in­ grounds. The court upheld the convic­ and neither the attorney client privi­ vestigator was called to testify about tion and found that to the extent the lege nor the work product doctrine these conversations and complete the privilege applied, it was waived by the applied to matters relied on or con­ impeachment of the witnesses. When defense. The court stated: sidered in the formation of his opin­ the defense refused to disclose these ion. 45 Cal. 3d at 722. written reports to the prosecutor, the trial Insofar as the [work product] privi­ court would not allow the investigator to lege applies to actual testimony in a In Grand Jury v. Superior Court testify. The Ninth Circuit Court of Ap­ criminal trial, defendant waived it (Harrison) (1989) 259 Cal. Rptr. 404 peals reversed the trial court and the U.S. when he called his investigator to (Ca1.App. 4 Dist), the grand jury was in­ Supreme Court found that the Ninth Cir­ impeach [the government witness] vestigating the death of Harrison's ex­ cuit Court erred. The Court held that Boyd's trial testimony and to bolster wife. During these proceedings, while the work product doctrine applies the claim that [someone else], not Harrison was referred to as the prime to criminal litigation, its protection was defendant, was DeSousa's killer. suspect. He was represented by an attor­ unavailable in this case. The court stated: Having done so, [the defendant] ney who retained an investigator, We need not, however, under­ could not suppress, as privileged, Braxton. Braxton was subpoenaed to the take here to delineate the scope of damaging evidence which was

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within the scope of his direct exami· Cal. Rptr. 682, the plaintiff, an oil explora­ taking undue advantage of another's nation. (citations omitted). He could tion company, sued BP Alaska on numer­ industry and efforts .. (citations omit­ not use the privilege to preserve a ous theories arising from BP Alaska's al­ ted) 108 CaI.App.3d at 63. false aura of veracity for his investi· legedly unauthorized use of confidential gators testimony. 44 Cal. 3d at 743. oil exploration data furnished to it by In Popelka, Allard, McCowan & Jones ZI. plaintiffina three-party arrangement that Superior Court (1980) 107 Cal. App. 3d In Kerns Constr. Cu. u. Superiur excluueu the plaintiff. During discovery, 196,502,165 CaL Rptr. 748, the plaintiff Court,(1968) 266 Cal. App. 2d 405,411, 72 plaintiff sought documents prepared by sued a law firm and its former client for CaL Rptr. 74, the defendant's employee or at the direction of BP Alaska's attor­ malicious prosecution and sought infor­ prepared investigation and accident re­ neys. Although plaintiff conceded that mation from the law firm's inter-office ports for the defendant concerning the this material constituted opinion work memoranda concerning the prior case. accident. The employee had the reports product, plaintiff argued that it was not The court held the work product protec­ in his possession at the time of his depo­ entitled to work product protection be­ tion afforded these documents did not sition and referred to them in order to cause the material was obtained in fur­ end when the case terminated. Reason­ answer questions indicating that he was therance of a fraudulent misrepresenta­ ing that the primary purpose of the otherwise unable to respond. Following tion to plaintiff by BP Alaska. Plaintiff rule---encouraging full and fair repre­ the deposition, an opposing party, based this argument on Evidence Code sentation of a client and being able to moved for inspection of the documents, section 956, which creates an exception to prepare a case without fear of subse­ but the trial court refused to order disclo­ the attorney-client privilege when the le­ quent scrutiny by opposing parties­ sure. The appellate court directed the gal services were sought or obtained to was not sufficiently served by a privilege trial court to compel production on the enable or aid anyone to commit or plan to that lived only until termination of the ground that by allowing the employee to commit a crime or fraud. The trial court action, the court stated: use the documents to refresh his memory granted the motion to compel, holding at the deposition, counsel for the defen­ that the plaintiff had established a prima The instant case illustrates the force dant employer had waived the work facie case of fraud. The appellate court behind such reasoning and we product protection for the documents. disagreed, holding that the absolute pro­ therefore hold that the privilege ex­ The court stated: tection for opinion work product is not tends beyond the termination of the subject to the crime-fraud exception appli­ litigation for which the documents Having no independent memory cable to the attorney-client privilege. The were prepared. from which [the witness] could an­ court stated: swer the questions; having had the N. Laying Foundation to Establish papers and documents produced by [Tlhe absence of a statutory crime­ existence of Work Product Privilege Gas Co:s attorney for the benefit fraud exception to the work prod uct To make a prima facie showing that and use of the witness; having used rule implies that the exception does the absolute work product privilege is them to give the testimony [that the not apply to work product docu­ applicable, a person claiming the work witness] did give, it would be un­ ments. In addition, the language of product protection must establish the conscionable to prevent the adverse [Code of Civil Procedure section following preliminary facts: (1) that a cli­ party from seeing and obtaining 20l8(C)1 is absolute. ent sought the attorney's legal counsel, copies of them. We conclude there (2) that the matter sought to be protected was a waiver of any privilege which M. Work Product protection continues is derived from the attorney's initiative may have existed. even after the case is over in the course of providing legal counsel, In Fellows v. Superior Court,(1980) 108 (3) that the matter sought to be protected If, as claimed, the reports were privi­ Cal. App. 3d 55, 62, 166Cal. Rptr. 274, the reflects the attorney's impressions, con­ leged under the work product rule, the court held that the privilege should not clusions, opinions, legal research, or le­ privilege rested with the attorney and be held to terminate simply because the gal theories, and (4) that the matter was waived by the attorney when he litigation or matter in which the sought to be protected is in writing. [shel produced the reports to the witness attorney's work product was created has Williamson v. Superior Court of Los Ange­ upon which to premise his testimony. come to an end. les,(1978) 21 Cal. 3d 829,834,148 Cal. The attorney cannot reveal his work The court mentioned the policy behind Rptr. 39, 582 P.2d 126; Aetna Casualty & product, allow a witness to testify there­ the creation of the attorney's work prod­ Surety Co. v. Superior Court ,(1984) 153 from and then claim work product privi­ uct privilege in support of their holding, Cal. App. 3d 467, 478, 200 Cal. Rptr. 471; lege to prevent the opposing party from describing the policy as two-fold: Merritt v. Superior Court,(1970) 9 Cal. viewing the document from which he App. 3d 721, 731, 88 Cal. Rptr. 337; see testified. Nondisclosure of his work product is Mize v. Atchison, T. & S. F. Ry. Co.,(1975) deemed desirable (1) to encourage 46 CaL App. 3d 436,447,120 CaL Rptr. L. lbe "'fraud" exception to the attorney­ the attorney to make a thorough 787 (party claiming protection must al­ client privilege does not apply to Opinion preparation for trial, including the lege preliminary facts showing existence work product analysis of unfavorable aspects of his of work product). In BP Alaska Exp/orations, Inc. v. Superior case, as well as the favorable aspects, Court (1988) 199 CaL App. 3d 1240,245 and (2) to prevent one attorney from

Volume 6, Number 2 &:1 23 >