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Attorney-Client Privilege Is Sacred, Even When Used for Abuse

By Jonathan R. Tung, Esq. on April 19, 2016 | Last updated on March 21, 2019

The attorney-client privilege is one of the most closely guarded layman-professional relationships, but California takes it to a whole new level. It even has codified the attorney-client privilege (unlike other states which rely on rules derived from the ABA rules) in Cal. Evid. Code section 900 et seq.

It turns out that even when privilege has been used for abuse, California jurisdiction is highly unwilling to question the practice. In the case of Dp Pham, LLC v. Cheadle, a prima facie showing of privilege turned out to be one heck of a shield against disclosure.

Not Privileged; and It Doesn't Matter

California Superior Court judge Linda Marks denied a motion to disqualify an attorney who used illicitly obtained information that was prima facie confidential between the opposing counsel and their client. The reasoning was based on an in camera determination by Marks that the communications were in fact, illicit and not subject to attorney client privilege.

Obviously, a petition followed. Upon a review of the record, the California appellate court determined that yes, the communications weren't in fact privilege, but that it was improper of the lower trial court to review the documents' contents in order to make that determination. It opined that "[t]he privilege attaches to all confidential communications between an attorney and a client regardless of whether the information communicated is in fact privileged."

Review of Legitimacy "Not Necessary"

More important, the opinion of the court seems to suggest (strongly) that a review of the legitimacy of an attorney-client privilege claim is "not necessary" nor even appropriate in determining whether or not the claim actually applies.

It appears that California attorneys can rely rather heavily on the monolith that is attorney-client privilege in this state. It is up to the opposing side to disprove the application of privilege -- and they must do so without referencing the contents of the communications. Ever try teaching someone how to bake a cake without referencing the ingredients?

Apparently, the California courts think it can be done. But with cases like Dp Pham being decided to guard privilege so strongly, counsel will have to rely on statutory crowbars in order to wedge in.

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