Attorney-Client Privilege Does Not Protect Everything

The attorney-client privilege prevents disclosure of confidential communication between the client and the attorney. Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, 371.  This privilege allows a client to refuse to disclose – and prevent anyone else from disclosing – communications that are intended to be confidential.  Evidence Code § 954.

The party claiming the privilege must establish that the information in question is a confidential communication made in the course of an attorney-client relationship.  Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725, 733.  Only if that threshold showing is made is the communication presumptively privileged, meaning it cannot be ordered disclosed unless the opposing party shows the privilege does not apply for other reasons.  Id.

“The attorney-client privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s legal advice for representation.”  Los Angles County Board of Supervisors v. Superior Court (2016) 2 Cal. 5th 282, 293.

In our experience, judges defer to protecting communications claimed to be confidential and covered by the privilege, rather than closely examining the gist of the communications for its content.  This is generally how we have seen the privilege treated so as to encourage communication between the client and the attorney, rather than to cause clients and the attorney to hesitate to communicate. 

 

This liberal application of the protection is apparently well appreciated by those in jail, as the following summary explains when an inmate tried to invoke the privilege to protect evidence of illegal communications between inmates regarding gang activity by sending his attorney pieces of paper having nothing to do with the attorney’s defense of him on the murder charges that brought him to jail.

Jason Jose Cortez, in People v. Superior Court of Santa Cruz County (real party in interest Jason Jose Cortez), exemplifies this gamesmanship of the attorney-client privilege.  While awaiting trial on charges he committed murder in the jail for the benefit of a criminal street gang, he sent “kites,” illegal written messages, usually in very small writing on very small pieces of paper, to another inmate, a violation of jail rules.  To hide the evidence of the kites, he put the kites in envelopes and sent them to his attorney.

Kites are often used to plan assaults on other inmates or to coordinate the smuggling of contraband into jail.  In Cortez’ case, he entered jail on certain charges for which he had an attorney, but once in jail he and another inmate fatally strangled another inmate.

The attorney received the kites in the mail and could not understand what they meant, as they used gang language and symbols, in communication between Cortez and another member of his gang.  Some such envelopes were intercepted by jail staff who were watching Cortez closely. 

About a month before the preliminary hearing in the murder case, a correctional officer at the Santa Cruz County Jail intercepted what he believed were kites in outgoing mail sent by Cortez.  When mail is opened from an inmate to an attorney, a special procedure is used to preserve confidentiality: the mail is opened before the inmate who sent it; the envelopes contents are visually inspected but any written communication is not read.

In Cortez’s case, the correctional officer testified that he inspected mail sent by Cortez to his attorney and noticed it smelled of feces, which the correctional officer explained indicated to the officer that it did not contain regular mail.  Kites are often hidden in an inmates rectum to avoid discovery by correctional officers.

The officer then noticed that the writing on the various sheets of paper appeared to be in several different styles of writing, suggesting to the officer that it was writing from several different inmates.  Written on an envelope placed inside a larger envelope was a note to the attorney that read, “please keep this for the future do not read please.”

The correctional officer therefore informed his supervisor, who determined the envelopes contents did not contain communications covered by the attorney-client privilege at all, but that Cortez was trying to hide evidence under the guise of the attorney-client privilege.

Cortez naturally objected to the introduction of the kites in his trial for murder, claiming they were protected by the privilege.  The trial court judge disagreed.  She had inspected the kites and determined none were written from Cortez to his attorney.

Cortez then petitioned the superior court for a writ of mandate, arguing that the finding of no attorney-client privilege was erroneous and the writ of mandate was granted.

The Santa Cruz District Attorney then petitioned the Sixth Appellate District in San Jose to reverse the writ of mandate, which the Sixth Appellate District did, finding the kites were not privileged attorney-client communications at all, as it appeared none were written by Cortez and none were addressed to the attorney.  The fact that they were in an envelope addressed to an attorney did not automatically qualify the writings as privileged, since the nature of the document determines its confidentiality, not its container.

The kites were then deemed admissible and used in the prosecution’s case as evidence against Cortez in his murder case.

For more information about other privileges and their limitations, please click on the following articles: