City Council Memorandum
TO: HONORABLE MAYOR AND CITY COUNCIL DATE: MARCH 15, 2022 FROM: CITY ATTORNEY’S OFFICE WARDS: ALL
SUBJECT: CONSIDER WAIVING THE LAWYER-CLIENT PRIVILEGE PURSUANT TO EVIDENCE CODE SECTION 954 FOR ALL LAWYER-CLIENT PRIVILEGED COMMUNICATIONS RELATED TO MEASURE MM, TO THE EXTENT CITY COUNCIL APPROVAL NEEDS TO BE GRANTED, CONSIDER WAIVING THE ATTORNEY WORK PRODUCT PRIVILEGE RELATED TO MEASURE MM ATTORNEY WORK PRODUCT, TO THE EXTENT THE ATTORNEY IS THE HOLDER OF THE ATTORNEY WORK PRODUCT PRIVILEGE AND TO THE EXTENT THAT IT APPLIES, CONSIDER DIRECTING THE CITY ATTORNEY TO REQUEST WAIVERS OF THE ATTORNEY WORK PRODUCT PRIVILEGE related to measure mm FROM THE VARIOUS ATTORNEYS WHOSE WORK PRODUCT MAY BE PROTECTED BY THE PRIVILEGE ISSUE:
To consider waiving the lawyer-client privilege pursuant to Evidence Code Section 954 for all lawyer-client privileged communications related to Measure MM, to the extent City Council approval needs to be granted, consider waiving the attorney work product privilege related to Measure MM attorney work product, to the extent the attorney is the holder of the attorney work product privilege and to the extent it applies, consider directing the City Attorney to request waivers of the attorney work product privilege related to Measure MM from the various attorneys whose work product may be protected by the privilege.
RECOMMENDATION:
That the City Council:
Consider waiving the lawyer-client privilege for all Measure MM communications protected by and pursuant to Evidence Code Section 954; and To the extent City Council approval needs to be granted, consider waiving the attorney work product privilege related to Measure MM attorney work product; and To the extent the attorney is the holder of the attorney work product privilege and to the extent it applies, consider directing the City Attorney to request waivers of the attorney work product privilege related to Measure MM from the various attorneys whose work product may be protected by the privilege.
DISCUSSION:
On February 15, 2022, under matters for future consideration, Mayor Pro Tempore Conder made a request for the City Attorney to bring this item forward to the Council for consideration and potential action.
Both the lawyer-client privilege and the attorney work product privilege are encompassed within a lawyer’s ethical and statutory duty of confidentiality. To this end, Business and Professions Code section 6068(e)(1) statutorily mandates the duty of an attorney to “maintain inviolate the confidences, and at every peril to himself or herself to preserve the secrets, of his or her client”.
Both privileges are the backbone of the attorney-client relationship. In a 2013 article from the American Bar Association, the author noted:
The attorney-client privilege is the backbone of the legal profession. It encourages the client to be open and honest with his or her attorney without fear that others will be able to pry into those conversations. Further, being fully informed by the client enables the attorney to provide the best legal advice.
While some might argue that waiver of the attorney-client privilege and granting the approval to waive the attorney work product privilege would further community trust and promote openness and transparency, the City Attorney submits to the Council that a natural reaction and consequence of doing so could have the more draconian effect of chilling the attorney-client relationship. As aptly noted in the article from the ABA, the attorney-client privilege is the backbone of the legal profession. Any weakening of the backbone, in the City Attorney’s opinion, does not advance the legal interest of the community, the Council, or the organization.
Disclosure might naturally cause uncertainty and/or fear for any employee, officer, or elected or appointed official who might seek legal advice, in the future, from the Office of the City Attorney. The uncertainty and/or fear created by disclosure, in this instance, which would allow others to pry into these confidential communications could affect full disclosure of all the facts and circumstances in future cases, as noted above, which are critical to any legal analysis.
The City Attorney has concerns that operating under these conditions could impede and not advance the public’s interest in ensuring the Office of the City Attorney is enabled to provide the best legal advice possible by being fully informed. It has been this City Attorney’s experience that fear does not create the highest function organization and does not serve the legal or other interest of the City particularly because there are other options available. In addition, enabling or aiding the commission of a crime or fraud is not protected by the privilege and therefore any documents that disclose such activity are not privileged.
LAWYER-CLIENT PRIVILEGE
Evidence Code Section 954 establishes the lawyer-client privilege and provides, in part, as follows:
[T]he client . . . has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privileged is claimed by:
The holder of the privilege.
A person who is authorized to claim the privilege by the holder of the privilege; or 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 holder of the privilege is the client (see Evid. Code 953). A lawyer who received or made a communication subject to the privilege shall claim the privilege whenever the lawyer is present when the communication is sought to be disclosed and is authorized to claim the privilege under subsection (c) above (Evid. Code 955). There is no lawyer-client privilege if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud (Evid. Code Section 956).
The City is the client and the holder of the lawyer-client privilege. Pursuant to Evidence Code Section 955, the City Attorney’s Office, acting by and through its officers and employees, has a statutory and ethical duty to maintain the lawyer-client privilege unless otherwise instructed by a person authorized to permit disclosure. In representing an organization, the client is the organization itself, acting through its highest authorized officer, employee, or body. The City Council is highest authority and by majority vote has the authority to instruct the City Attorney’s Office to permit disclosure of information privileged and protected from disclosure pursuant to the lawyer-client privilege.
ATTORNEY WORK PRODUCT PRIVILEGE
Chapter 4 of Civil Discovery Act protects from discovery attorney work product. Section 2018.030 provides as follows:
A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.
Under section 2018.050, when a lawyer is suspected of knowingly participating in a crime or fraud, there is no protection of work product under the Civil Discovery Act in any official investigation by a law enforcement agency or proceeding or action brought by a public prosecutor in the name of the people of the State of California if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud.
While the client is the holder of the lawyer-client privilege, the attorney is the holder of the attorney work product privilege (State Fund Ins. Fund v. Superior Court (2001) 91 Cal.App.4th 1080, 1091). However, in limited instances the client’s approval may need to be granted (for example, State Bar proceedings to investigate an attorney; see Code of Civil Procedure Section 2018.070). To the extent that the attorney work product privilege applies in this case and the requisite client approval needs to be granted, said action is submitted to the City Council for consideration.
OPTIONS
Decline the invitation to waive the attorney client privilege and attorney work product privilege.
Decline the invitation to waive the attorney client privilege and attorney work product privilege and provide each member of the Council the opportunity to review all attorney-client privileged information and attorney work product for evidence of a crime or fraud and disclose the same since this information is not protected by the privilege. In addition, turn over any work product that evidences a crime or fraud to the appropriate public prosecutor.
By majority vote waive the lawyer-client privilege and grant the approval to waive the attorney work product privilege subject to waiver by the holder of the privilege, if necessary.
If the Council elections option 3, direct the City Attorney to request waivers of the attorney work product privilege from the various attorneys whose work product may be protected by the privilege.
Determine that a waiver of the attorney client privilege and attorney work product privilege is unnecessary because there is no privilege if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud (Evidence Code Section 956 and Code of Civil Procedure Section 2080.050).
Other options as determined by the City Council.
FISCAL IMPACT:
There are no known fiscal impacts at this time.
Prepared by: Phaedra A. Norton, City Attorney
Attachment: Evidence Code Sections 950-962
Chapter 4 Civil Discovery Act Code of Civil Procedure Sections 2080.010- 2018.080
ABA Article
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