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Attorney-Client Privilege

What is the Lawyer-Client Privilege?

When you consult with an attorney, particularly when you're accused of a crime, your communication with that attorney is protected by law. It cannot be used against you in court—even if you admit to your attorney that you committed the crime.

This is a long-standing legal principle known as attorney-client privilege, which means that communication between attorneys and clients is confidential. This privilege helps ensure that you can freely discuss your legal situation with your attorney without fear of reprisal.

Attorney-Client Privilege in California
Communication between you and your lawyer in California is confidential and can't be disclosed.

This privilege is codified in California law via Evidence Code 954, which gives your attorney the right to refuse to divulge the contents of your conversation, gives you the right to require confidentiality from your attorney, and with few exceptions, makes any breach of that confidence inadmissible in court.

Simply put, EC 954 is the statute making any communications between attorneys and their clients privileged. Further, this lawyer-client privilege means that your attorney can't disclose any such confidential communications either. This evidentiary privilege is related to the right to counsel under the Sixth Amendment to the United States Constitution.

One of the primary purposes of an attorney-client privilege is that it allows the client to share all the relevant information about their criminal case with their defense attorney without being concerned that it could be used against them in court.

A classic example involves someone being arrested and charged with Penal Code 503 embezzlement from their employer.  They retain a defense lawyer and admit they did indeed take the money. Their lawyer can't disclose their conservation to anyone during the court process.

In this article by our Los Angeles, criminal defense attorneys, we will examine this subject in more detail below.

Evidence Code 954 Explained

Evidence Code 954 describes the terms of attorney-client privilege and how it is protected under California law. Under this statute:

  • You have the right to refuse to disclose any confidential communications between you and your attorney (written or oral) as long as those communications occur within the framework of the lawyer-client relationship;
  • Your attorney is required by law to refuse to divulge the contents of client communications if anyone asks them to, citing "attorney-client privilege:"
  • You have the right to forbid your attorney (along with any relevant third parties) from disclosing information designated as confidential.

Further, any conservations you may have had with a defense lawyer during a consultation are still covered by the privilege before retaining their legal services.

Readers should note that the lawyer-client privilege doesn't apply to communications with so-called “jailhouse attorneys” or anyone else who offers legal advice without a valid professional license.

What Are Some Other Specific Protections?

Attorney-client privilege extends to third parties. For example, your attorney may need to share privileged information with members of their legal team who are members of the California State Bar or other legal experts while building your case.

Specific Protections of the Lawyer-Client Privilege
The lawyer-client privilege extends to third parties, eavesdroppers, and possibly documents.

If so, those third parties must also keep your communications confidential and cannot be compelled to share what they know. Likewise, if you tell your spouse what you told the attorney in confidence, your spouse is also bound by attorney-client privilege and cannot be compelled to disclose that information.

Attorney-client privilege extends to eavesdroppers. If someone listens to your lawyer's confidential communications without your consent (e.g., overhearing, illegal wiretapping), the eavesdropper is legally forbidden from divulging that personal information. That testimony will be inadmissible in court if they do so, but the eavesdropper may even face criminal charges.

Attorney-client privilege may extend to documents already made public. For example, your indictment may be a public record, but if your attorney gives you a copy of the indictment, you aren't required to disclose that you were given the document because that fact is privileged.

Attorney-client privilege extends to intended documents that weren't delivered. For example, if you mail your attorney relevant documents that get lost in the mail, the contents are still covered under attorney-client privilege.

What is the Attorney-Client Relationship?

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

  • An attorney is anyone duly licensed to practice law in California—OR anyone the client reasonably believes is an attorney. So, for example, if you share confidential information about your case with someone claiming to be an attorney who ends up not being licensed, that person is still bound by the attorney-client privilege.
  • A client is anyone who retains an attorney or consults with them to obtain legal advice/counsel/services. In other words, in California, you don't necessarily have to retain the attorney before attorney-client privilege applies, and neither does any money have to exchange hands. As long as you're consulting with them with the prospect of possibly retaining them, your conversations are still protected by law.

What Are the Exceptions?

As with almost every rule, there are exceptions to attorney-client privilege—instances in which the legal protections don't apply. California law recognizes two exceptions to the rule under Evidence Code 954 that discussed below.

Exceptions to the Lawyer-Client Privilege
The exceptions to the lawyer-client privilege include planning an ongoing crime and imminent harm.

Purposes of furthering crime or fraud. You can freely admit to your lawyer that you committed a crime, and the attorney-client privilege will protect that conversation. But if your conversations with your attorney are for planning or furthering an ongoing crime or fraud, or one that hasn't happened yet, the attorney-client privilege doesn't apply.

EXAMPLE 1: You engage an attorney's services to help you cover up an ongoing fraud scheme, and you hand over incriminating evidence to your attorney for safekeeping. That tactic doesn't work, and the evidence is admissible in court.

Imminent death or harm. Your attorney can't be held to attorney-client privilege if they believe that keeping your confidence would result in death or significant physical harm to someone.

EXAMPLE 2: In talking to your attorney, you admit to raping a woman, but then you tell your attorney you intend to do "whatever is necessary" to keep the alleged victim from going on the witness stand. If your attorney reasonably believes you intend to kill the victim, they can divulge that conversation to the prosecutors to protect the victim. Attorney-client privilege doesn't apply.

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What is a Waiver of the Attorney-Client Privilege?

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

If you fail to claim the lawyer-client privilege in a court proceeding in a situation where you have the legal right to do so, then it will be considered that you gave consent to disclose the privileged information. Any defendant who has been charged with a crime should never discuss details of their case before speaking with a criminal defense attorney.

Eisner Gorin LLP is a top-rated criminal law firm in Los Angeles County. We provide legal representation for any misdemeanor or felony offense across Southern California. You can contact our office for an initial case consultation by calling (310) 328-3776 or filling out the contact form.

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