Attorney-client privilege is formidable and taken very seriously in California. The privilege is not, however, absolute.
We are in a civil case with others, suing a person who engaged in fraudulent misconduct. We share the same attorney who is trying to establish that the attorney client privilege between this guy and his lawyer is not enforceable because of the crime-fraud exception.
Can you share your thoughts on this? P.C., HollywoodWe often hear that the attorney-client privilege is “inviolate.” To be sure it is formidable and taken very seriously in California. The privilege is not, however, absolute. There are some circumstances when it is lifted, one of which is referred to as the “crime-fraud exception”. California Evidence Code Section 954 provides the client with the privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between him or herself and the lawyer. But, under Evidence Code Section 956 communications typically protected by the attorney-client privilege can lose that shield if the party seeking discovery: makes a prima facie showing that the client sought or obtained legal services to assist in either planning or committing a crime or fraud, and there is a reasonable relationship between the wrongdoing and the attorney client communication in focus. The circumstances your lawyer is dealing with are not known to me, but no doubt he or she is taking steps to show the Court why the privilege should not be honored. Getting it lifted may be challenging, but perhaps someone will speak-out who knows the truth, and/or the Court will infer, see and hear enough that it will void the privilege so the exchanges with the lawyer can be disclosed. Sometimes the Court will do an in camera review of records before deciding.We are in a dispute with our lawyer over the fees charged. He has “warned us” that if we pursue our claim it will terminate the attorney client privilege. That does not seem fair. There are things we discussed and exchanged with him that we want to keep confidential. If we pursue a claim against him for overcharging will that result in the privilege going away? B.H., TorranceCalifornia Evidence Code Section 958 reads: “There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” Thus, if you sue the lawyer for malpractice, or over a fee dispute , the privilege will be lifted. You are putting into issue what the lawyer did and/or did not do, and invariably there will be disclosure of communications, steps taken or not taken, as well as things said and done. If you mediate over the fee dispute you might then be able to keep the matter private, and it is possible if you arbitrate , you may be able to keep things private there as well. These are options you should discuss with qualified counsel at least to know what you can expect going forward, however you choose to proceed. Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.Amazon Fresh grocery and Go convenience stores closingCar pursued by CHP plunges off 105 Freeway near LAXAfter housing nearly 300 people, Los Angeles officials to expand San Fernando Valley’s RV-to-Home project citywideMom arrested after baby falls out of SUV in Fullerton, police say
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