Attorney-Client Privilege: Mitchell v. Superior Court

The attorney-client privilege allows a client to refuse to disclose, and to prevent others from disclosing, confidential communications made in the course of the attorney-client relationship. Cal. Evid. Code § 954; Mitchell v. Superior Court(1984) 37 Cal.3d 591, 599. Similarly, the attorney work product privilege protects from disclosure writings that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories. Cal. Civ. Proc. Code § 2018.030. “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise . . . .” Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.

For the privilege to attach, documents or communication need not go directly from a client to an attorney, or vice versa. The client may use an agent for communications with the attorney. See e.g., Santrade, Ltd. v. General Elec. Co. (E.D.N.C. 1993) 150 F.R.D. 539, 545 (“In instances where the client is a corporation, documents subject to the privilege may be transmitted between non-attorneys to relay information requested by attorneys.”). Similarly, agents and subordinates working under supervision and control of the attorney are included within the scope of the attorney-client and work product privilege. See e.g., Zenith Radio Corp. V. Radio Corp. of Am. (D. Del. 195) 121 F. Supp. 792, 794 (stating privilege extends to lawyer’s immediate subordinates such as “general office clerks and help, law clerks, junior attorneys, and the like who habitually report to and are under the personal supervision of the attorney through whom the privilege passes.”). The privilege applies if the person to whom the communication was made (or through whom attorney work product passed) “is a member of the bar of a court, or his subordinate.” United States v. United Shoe Mach. Corp. (D. Mass. 1950)89 F. Supp. 357, 358 (emphasis in original).