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Attorney-Client Privilege

Evidence Code 954 EC - Attorney-Client Privilege in California

When you consult with a lawyer after being accused of committing a crime, the content of your communication is protected by law. In other words, it cannot be used against you in court, even if you admit you committed the crime. 

Simply put, the attorney-client privilege means that communication between attorneys and clients is confidential. The primary purpose is to ensure you can openly discuss your legal situation with your attorney without fear of reprisal. 

Evidence Code 954 - Attorney-Client Privilege in California
In California, all the communication between you and your attorney is confidential.

California Evidence Code 954 defines the attorney-client privilege. It gives your lawyer the legal right not to disclose the contents of your communication with them. 

It also gives you the right to require confidentiality from your lawyer and make breaches inadmissible in court. This statute makes any communications between attorneys and their clients privileged, and the lawyer can't disclose such confidential communications. 

Evidence Code 954 says, “Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has the privilege to refuse to disclose and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.

The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons.

The word “persons,” as used in this subdivision, includes partnerships, corporations, limited liability companies, associations, and other groups and entities.”

This privilege is related to the right to counsel under the Sixth Amendment to the United States Constitution. Let's review this statute further below. 

Review of Evidence Code 954 EC

California Evidence Code 954 defines the terms of attorney-client privilege and how it is protected under the law, such as the following:  

  • You can refuse to disclose any confidential communications between you and your attorney, written or oral if they occur within a lawyer-client relationship.
  • You can forbid your attorney from disclosing confidential information.
  • Your lawyer must refuse to divulge the contents of client communications if they are asked to.

Notably, the privilege still covers any conservations you might have had with a defense lawyer during an initial consultation but before hiring them. However, the lawyer-client privilege does not apply to communications with “jailhouse lawyers” or anyone who offers legal advice without a professional license. 

What is the Attorney-Client Relationship?

To understand what is legally protected under attorney-client privilege, you first must know who qualifies as an attorney and who is considered a client:

  • An attorney is licensed to practice law in California, or the client reasonably believes is a lawyer. For example, suppose you shared confidential information about your case with someone claiming to be an attorney who was not licensed. In that case, that person is bound by the privilege.
  • A client is someone who hires or consults with a lawyer. The attorney-client privilege still applies if you don't retain the lawyer. In other words, if you are consulting with them to retain them possibly, your conversations are still protected by law.

What Are Some Other Protections? 

Attorney-client privilege extends to third parties. For example, suppose your lawyer must share privileged information with their state-bar-licensed legal team or experts. In that case, those third parties must keep your communications confidential and cannot be compelled to share them.  

Suppose you told your spouse what you said to the attorney in confidence. In that case, your spouse is also bound by attorney-client privilege and can't be forced to disclose it

Attorney-client privilege extends to eavesdroppers. For example, suppose somebody listens to your attorney's confidential communications without your consent. In that case, they can disclose the information, and any testimony is admissible in court.

What Are the Exceptions to Attorney-Client Privilege?

There are some exceptions to attorney-client privilege, meaning the legal protections don't apply, discussed below. 

One exception is for the purposes of furthering a crime or fraud. For example, suppose your conversation with a lawyer includes plans to commit a crime or fraud; the attorney-client privilege doesn't apply. 

Another exception is imminent death or harm. For example, suppose your lawyer believes that keeping your information confidential would significantly harm someone or cause death. In that case, they can't be held to attorney-client privilege. For example, you tell your lawyer you will do “anything” to keep an alleged rape victim quiet.

What is a Waiver of the Attorney-Client Privilege?

Notably, you can “waive” the lawyer-client privilege by voluntarily disclosing a significant portion of the privileged communication to a third party or by giving consent to the disclosure by anyone else.

Suppose you failed to claim the attorney-client privilege in a court proceeding when you had a legal right to do so.  In that case, it will be considered consenting to disclosing the privileged information. 

If you are under investigation or already charged with a crime, you should not discuss the details with anyone before consulting with a California criminal defense attorney. You can contact our law firm by phone or through the contact form. Eisner Gorin LLP is located in Los Angeles, California.

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