FROM THE CLASSROOM
“The Attorney-Client Privilege and Criminal Investigations”

By Ray Hill
Professor emeritus, Santa Rosa Junior College

This is second in a series of articles covering the California Evidence Code and criminal investigations. Let’s look at the attorney-client privilege and how it may tie into evidence gathering in your case.

The Basics

This is a confidential communication privilege, belonging to both parties, between attorney and client during a professional relationship for the purpose of seeking legal consultation and advice (952 E.C).

An attorney is bound by a code of ethics and California State Bar regulations to maintain the confidentiality of client disclosures. No employment agreement need take place, no fees need be paid and counsel doesn’t need to be retained for later legal action. The privilege includes observations that are the product of a confidential communication. The privilege remains in effect even after the attorney-client relationship ends (U.S. v. White (1992) 970 F 2nd 328).

The privilege covers out-of-state lawyers and foreign lawyers (In re: Gonzales (1989) 212 Cal. App. 3d 461). A person must actually be licensed to practice law for a privilege to be valid. For example, conversations with a “jailhouse lawyer” were not covered by privilege. A person must reasonably believe that his or her legal adviser is licensed to practice law (Peo. v. Velasquez (1987) 192 Cal. App. 3d 322).

Privilege also can be vicariously applied to a witness, family member or other person(s) whose presence during a consultation is reasonably necessary to further a client’s legal interests. The privilege also applies to the attorney’s employees (paralegal, legal secretary, investigator, for example). These related third parties can be blocked from testifying to the content of any confidential communications.

Potential Privilege Violations

Intentionally eavesdropping upon or recording an attorney-client conversation is a felony (636 P.C.). This statute applies whether the eavesdropping or recording is done with “one’s ear to the door” or with an electronic device.

• Due to an escape attempt report, officers were posted three to four feet from the defendant and counsel, and the interview room door was kept open. Officers were able to overhear the conversation. Jail officials have an obligation to provide a private setting for attorney-client interviews, and, thus, the statements were privileged. The parties should have been admonished that they could exercise the option to close the door (Peo. v. Torres (1990) 218 Cal. App. 3d 703).
• Burglary charges were dismissed because a deputy district attorney instructed her investigator to eavesdrop on a conversation between the defense counsel and the defendant in a holding area. There is an expectation of privacy in these conversations (Morrow v. Superior Court (1994) 30 Cal. App 4th 125).

Exceptions

At first glance, you might believe the attorney-client privilege is pretty much locked down. However, there are a few legal rules requiring communications to be disclosed that could be pursued during your investigation.

Unrelated Third Parties, Eavesdropping

The privilege is void when a communication is made in the known presence of a third party not involved in the legal relationship (912 E.C.). This is an unlikely scenario given an attorney’s professional and ethical obligation to maintain a “private environment” for legal discussions.

The privilege is waived where others could significantly overhear a conversation or when a communication is made under circumstances where it is not intended to be confidential (North v. Superior Court (1972) 8 Cal. 3d 301).

• Five letters sent by the defendant to his attorney were not covered by privilege because their contents were disclosed to others (Peo. v. Polanski (1992) 92 P. 3d 869)
• During a murder trial, the defendant and his attorney were seated at the same table as the district attorney and investigating officer. Defendant had written on a legal pad, “The jacket they have is not the jacket I was wearing that night.” During a recess, the investigating officer stood up, looked down at the defense side of the table and observed defendant’s writing. The officer testified, “I wasn’t trying to read anything, it just caught my attention.” This communication lost confidentiality because defendant left the pad out on the table where anyone – a bailiff, court reporter, clerk, or even a court observer – could view it. He made no attempt to cover the writing when leaving or to give it to his attorney (Peo. v. Tolbert (1996) 70 Cal. 2d 797)
• A client consented to the disclosure of a videotape made with her attorney during a hospital interview. In doing so, she waived privilege (Hiott v. Superior Court (Building Maintenance Service) (1993) 16 Cal. App. 4th 7).

The court will ultimately decide to what extent an attorney-client conversation was not meant to be confidential and to what extent the content of the conversation will be disclosed. So, your follow up investigation should always attempt to seek out any leads where the client had “loose lips.”

Crime-Fraud Exception

The attorney-client privilege is void if a consultation takes place for the purpose of planning to commit or concealing a crime/fraud (956 E.C.) A person cannot go to an attorney to obtain legal advice in preparation for and in advance of criminal activity. The privilege is only applicable to “after-the-fact” legal consultation. If during an investigation, any such conservations are discovered, the attorney would be legally bound to disclose this conversation. An attorney can stay within the law by disclosing any conversation privately to the court and having the magistrate decide about further disclosure.

• A letter to the defendant’s attorney disclosing plans for money laundering was admissible under the “crime-fraud” exception (U.S. v. DeLaJara, (1992) 973 F. 2nd 746).

Preventing a Serious Crime

The attorney-client privilege doesn’t apply when an attorney reasonably believes disclosure of a conversation is necessary to prevent a client from committing a crime likely to result in death or great bodily injury (956.5 E.C.). This disclosure may be made to law enforcement or the court.

• Defendant was charged with assaulting his girlfriend. He told his attorney that he was going to buy off prosecution witnesses or “whack them if they refused to accept his bribe.” When the attorney protested, defendant threatened to kill him. There was no privilege for threats to kill witnesses and the attorney was permitted to testify (Peo. v. Dang (2001) 93 Cal. App. 4th 1294).
• After a conversation with the defendant, defense counsel told police about the possible location of two missing children who were believed to have been abducted. The children were found dead from gunshot wounds. The disclosure was made under a reasonable belief the children could be subject to great bodily injury (McClure v. Thompson (2003) 323 F. 3d 1233).

Coming into Possession of Evidence

What if a client turns over evidence of a crime and it is now in defense counsel’s possession? There is a legal obligation to turn the evidence over to the court or counsel could be committing a Concealing of Evidence with Intent to Prevent It from Being Introduced crime (135 P.C.).

• If counsel takes possession of stolen property (i.e., a victim’s wallet), this evidence must be turned over to the magistrate (Peo. v. Meredith (1981) 29 Cal. 3d 682)
• The prosecution obtained letters authored by a murder defendant written to another jail inmate. This inmate was asked to falsely confess to the defendant’s crime. Defendant said, “He foolishly told his lawyer where the weapons were” and “the lawyer now has the weapons, and the D.A. doesn’t know it.” When defense counsel possesses evidence of a crime, the court must be notified (Peo. v. Superior Court (Fairbank) (1987 192 Cal. App. 3d 34)
• Where a murder defendant’s family member turned over bloody shoes to the Public Defender’s Office, the court must be told of possession of this evidence (Peo. v. Lee (1971) 3 Cal. App. 3d 514).

Any surrender can be done without comment as to the source of the evidence. The court will decide under what circumstances the evidence will be turned over to the prosecution. As an investigator, you would then have to link the evidence to the defendant through independent legal sources.

However, case law draws a fine line between actually possessing evidence of a crime and simply knowing about the location of evidence.

• Defense counsel could not be compelled to disclose the whereabouts of a weapon where the attorney neither “possessed the gun or had control over it” and “there was no indication he had either moved it or altered it” (Goldsmith v. Superior Court (1984) 152 Cal. App. 3d 76).

So, the attorney-client privilege is not entirely “locked down.” Be aware of these exceptions as your case investigation progresses.

Next up, the doctor/patient and clergy/confessor privileges.

Stay safe!

RH

**Reminder on previous post:

Effective 1/1/23, the law against Loitering for the Purpose of Engaging in a Prostitution Offense (653.20/653.22 P.C.) is repealed.

See LU Ref. #CAB00161 (7/7/22).