Cracking the Code on Attorney/Client Privilege
While the attorney/client privilege is a pillar of the American judicial system, there are some instances when states have to refine the law and add exceptions to the rule. We’ve outlined the client/attorney privilege as it affects California family law.
The Attorney/Client Privilege in California
The American Bar Association provides a model of professional conduct that describes the attorney/client privilege, which the federal and state legislature further defines when certain circumstances find it questionable. California state Evidence code §§ 952-954 defines this state’s rules for the attorney/client privilege.
Under this law, confidential communication between a lawyer and a client cannot be disclosed to any third parties other than those vested in the interest of the client. The other vested interests would be legal aids or translators, for instance, participants who are present to aid the client.
Code § 1119 goes a step further and protects anything that is written, as well as shared in oral communications, and during mediation, is also protected. The exception to this is when child custody is determined by a judge based on a mediator’s report of observations as part of a child custody recommendation counseling meeting.
What Is Covered by the Attorney/Client Privilege in California?
Attorney/client privilege protection covers anything you ask your lawyer, tell the lawyer, any advice your lawyer gives you, and any documents or evidence related to your case. Even if you submit items to your attorney, they still belong to you and not your lawyer. It is the client’s right and only the client’s right to decide to share things outside their relationship with their attorney.
Exceptions to the Rule
Of course, there are exceptions to this rule, like the one previously mentioned regarding custody recommending counselling. Another exception involves clients who bring friends or family members to confidential meetings with their attorneys. If the client divulges privileged information in front of that third party, the confidentiality of the information is no longer protected.
The confidentiality is unprotected because the third party is then privy to examination by the opposing counsel regarding information that was discussed in that particular meeting. However, the attorney cannot be asked to testify against their own client.
There is one main exception to the attorney/client privilege. This exception applies not only to family law but also to all areas of practice. It defines the one type of conversation that an attorney can and must share. That is, if a client discloses plans to commit a future crime or fraud, the information is not protected. Telling a lawyer about a crime or fraud committed in the past is protected.
Special Privileges
The law extends special protections to married couples regarding privileged information. Evidence Code § 970-972 describes spousal testimonial privilege, which prohibits a spouse from being made to testify against their spouse while they’re still married.
If the spouse wants to testify because they feel their testimony would help the defense, they can, but they don’t have any obligation to, and can, in fact, outright refuse to, and the court must oblige their wishes. Spousal testimonial privilege applies in both civil and criminal cases.
The second special privilege of married couples is outlined in Evidence Code § 980. The marital communications privilege imparts protection over conversations between spouses. Only conversations that occurred during marriage are protected, but the protection of those conversations is indefinite, even after the marriage ends.
Only the spouse who spoke the confidential information can refuse the privilege. Marital communications privilege, like spousal testimonial privilege, is no longer valid if one spouse is being charged with crimes against the other spouse or against their children.
FAQs
Q: Can I Tell My Lawyer if I Committed a Crime?
A: Yes, you can feel confident confessing crimes you committed to your lawyer, as they are bound by law to not tell the police, the prosecutor, your family, the judge, or anyone anything you tell them regarding anything you’ve already done. If you tell them that you are planning to commit a future crime, they are required to report that information.
Q: What Should I Not Tell My Lawyer?
A: You should not lie or withhold critical information from your lawyer, as this can undermine your case and their ability to represent you effectively. Avoid sharing irrelevant personal opinions or emotions that could cloud the facts, unless they directly relate to the legal matter. An attorney can only provide services that match their client’s willingness to tell them the truth and trust in the attorney/client privilege.
Q: Can an Attorney Report Their Client for Perjury?
A: Yes. If a lawyer knows their client is lying to the court, they must act on it. First, they must encourage their client to amend the lie told to the court. If that doesn’t work, they can withdraw from the case. They do not have to disclose what the lie was unless it is necessary to uphold the ethical code. Perjury cases are generally handled by the Superior Court in the county where the alleged crime occurred.
Q: What Happens if a Lawyer Knows His Client Is Lying?
A: Lawyers take an oath to uphold a certain code of ethics to both the court and to their client. This line between this dual duty is sometimes blurred when lawyers must consider and decide which is more important, their duty to the court or their duty to their client. Ultimately, a lawyer cannot allow a client to lie on the stand and must take the necessary steps to uphold their oath.
The bottom line is that attorneys take an oath to uphold the confidence of their clients, as well as to the court. While it’s not always clear where one duty ends and the other begins, clients should feel comfortable disclosing all truths regarding their case to their attorney. If you are seeking a trustworthy family law attorney, call Bickford Blado & Botros to schedule an appointment for a consultation.
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