January 28, 2023

Volume XIII, Number 28

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California Court May Not Employ Alan Funt Tactics To Assess Attorney-Client Privilege

California, unlike other states, has codified the attorney-client (and other evidentiary) privileges.  Cal. Evid. Code §§ 900 et seq.  In an opinion issued last week, the California Court of Appeal provided a nice summary of how a court must assess attorney-client privilege claims:

A court, however, may not review the contents of a communication to determine whether the attorney-client privilege protects that communication. The attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit. The privilege attaches to all confidential communications between an attorney and a client regardless of whether the information communicated is in fact privileged. Accordingly, it is neither necessary nor appropriate to review a communication to determine whether the attorney-client privilege protects it.

Once the proponent makes a prima facie showing of a confidential attorney-client communication, it is presumed the communication is privileged and the burden shifts to the opponent to establish waiver, an exception, or that the privilege does not for some other reason apply. The opponent may not rely on the communication’s content to make that showing.

Dp Pham, LLC v. Cheadle, 2016 Cal. App. LEXIS 288, 1-2 (Cal. App. 4th Dist. Apr. 15, 2016).

In Camera Review

The trial court in conducted an in camera review of the communications between the attorney and his client to determine whether they were privileged.  The Court of Appeal found this to be impermissible.   Presumably, the judge reviewed the communications in his chambers.  The word “camera” is a word derived from the Greek (καμάρα) and Latin (camera) meaning a vaulted room.  A camera obscura, which literally means a dark room, refers to a device using a black box used for projecting images.  The camera obscura eventually led to the modern camera.  The word “photography” is derived from two Greek words meaning light writing.

© 2010-2023 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume VI, Number 109
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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
Partner

Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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