Attorney Client Privilege Cases In California

The attorney-client privilege "has been a hallmark of Anglo-American jurisprudence for almost 400 years. (McCormick, Evidence (2d ed. 1972) 87, pp. 175-179; 8 Wigmore, Evidence (McNaughton rev., 1961) 2290, pp. 542-545; Pritchard sic v. U.S. (6th Cir. 1950) 181 F.2d 326, 328, affd. (1950) 339 U.S. 974 94 L. Ed. 1380, 70 S.Ct 1029; Baird v. Koerner (9th Cir. 1960) 279 F.2d 623, 629 95 A.L.R.2d 303.) The privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client. ( Evid. Code, 950 et seq.) Clearly, the fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. ( People v. Flores (1977) 71 Cal. App. 3d 559, 563 139 Cal. Rptr. 546.) In other words, the public policy fostered by the privilege seeks to insure 'the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.' (Baird v. Koerner, supra, 279 F.2d at p. 629.)" (Mitchell v. Superior Court (1984) 37 Cal. 3d 591, 599 208 Cal. Rptr. 886, 691 P.2d 642.) "The privilege is set forth in Evidence Code section 954 as follows: " 'Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: " '(a) the holder of the privilege; " '(b) a person who is authorized to claim the privilege by the holder of the privilege; or " '(c) the person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.' " "The privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case." ( Gordon v. Superior Court (1997) 55 Cal. App. 4th 1546, 1557 65 Cal. Rptr. 2d 53; see also Shannon v. Superior Court (1990) 217 Cal. App. 3d 986, 995 266 Cal. Rptr. 242.) "In California the privilege has been held to encompass not only oral or written statements, but additionally actions, signs, or other means of communicating information. ( Ex Parte McDonough (1915) 170 Cal. 230, 234 149 P. 566; Estate of Kime (1983) 144 Cal. App. 3d 246, 255 193 Cal. Rptr. 718.) Furthermore, the privilege covers the transmission of documents which are available to the public, and not merely information in the sole possession of the attorney or client. In this regard, it is the actual fact of the transmission which merits protection, since discovery of the transmission of specific public documents might very well reveal the transmitter's intended strategy. ( In re Jordan (1974) 12 Cal. 3d 575, 580 116 Cal. Rptr. 371, 526 P.2d 523.) While it is perhaps somewhat of a hyperbole to refer to the attorney-client privilege as 'sacred,' it is clearly one which our judicial system has carefully safeguarded with only a few specific exceptions." ( Mitchell v. Superior Court, 37 Cal. 3d at p. 600.) In sum, there can be no balancing of the attorney-client privilege against the right to prosecute a lawsuit to redress a legal wrong. Consequently, as General Dynamics Corp. v. Superior Court (1994) 7 Cal. 4th 1164 32 Cal. Rptr. 2d 1, 876 P.2d 487 (hereafter General Dynamics) teaches, unless a statutory provision removes the protection afforded by the attorney-client privilege to confidential communications between attorney and client, an attorney plaintiff may not prosecute a lawsuit if in doing so client confidences would be disclosed. ( General Dynamics, supra, at p. 1190.)