The Application of Attorney-Client Privilege to Attorney Retention

John A. Schena, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Published:  02.01.2013

The attorney-client privilege is generally recognized as the oldest evidentiary privilege, and has been codified in California in one shape or another since 1851.  Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 37; Sullivan v. Sup. Ct. (1972) 29 Cal.App.3d 64, 71.  A client’s communication made in confidence to an attorney is not subject to discovery because the consequence of disclosure could interfere with the proper function of our judicial system, namely, that a client should feel free to tell its attorney everything and anything.  People v. Velasquez (1987) 192 Cal.App.3d 319, 327.   Even relevant evidence takes a backseat to the attorney-client privilege because “the benefits derived [from the privilege] justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.” Mitchell v. Sup. Ct. (1984) 37 Cal.3d 591, 599.    Accordingly, the outcome of a “smell test” is usually accurate: if the requested information seems like it should be protected by the  attorney-client privilege, it probably merits protection.  

But, what about engagement and retention of the attorney?  As an initial matter, there are many imaginable reasons why the events and circumstances surrounding retention of an attorney might be considered relevant under the broad scope of discovery, such as circumstantial evidence of a fraudulent claim.  Whether right or wrong, a certain inference is raised if a plaintiff initiates a relationship with an attorney immediately prior to orchestrating events leading to constructive discharge.  On the other hand, there are just as many reasons why disclosure of retention-related information could interfere with the attorney-client relationship and actually discourage a party from seeking legal advice.  On this point, anyone who has litigated against a pro se plaintiff will tell you the last thing the bench should do is inspire fear of open discourse between the layperson and lawyer.  While the law is clear that the actual content of the communications between the attorney and client are not subject to discovery, the rules surrounding retention are less fleshed out and quite often the subject of law and motion practice, if not published case law.   

Proper analysis of the question starts with consideration that the attorney-client privilege applies “only to communications and not to facts.”  Upjohn Co. v. U.S. (1981) 449 U.S. 383, 101 S.Ct. 677 (1981).   Moreover, the privilege applies only to communications that are of a confidential nature.  CAL. EVID. CODE §§ 952, 954.    “Not every communication between attorney and client enjoys the privilege; to qualify for its protection the communication must be a ‘confidential’ one.”  Hogan, J., Modern Cal. Discovery (4th ed. 1995) at §12.7, p. 91.  But, the attorney-client privilege does not protect “independent facts” related to a communication, including “that a communication took place, and the time, date and participants in the communication.”  State Farm Fire And Casualty Co. v. Sup. Ct. (1997) 54 Cal.App.4th 625, 640.  Indeed, the “independent facts” generally make up the information found on a privilege log:  the who, when and where, but not the what.   And, even if there is a mutual intention that “independent facts” be kept confidential, the attorney-client privilege simply cannot be properly invoked to protect them as such.  See Suezaki v. Sup. Ct. (1962) 58 Cal.2d 166, 176 [“transmission alone, even where the parties intend the matter to be confidential, cannot create the privilege if none, in fact, exists.”].              

At first blush, any fact surrounding attorney retention would seem to merit protection from discovery to promote an active, flourishing attorney-client relationship.  Surely knowledge of the date of retention coupled with the underlying time line could disclose the subject matter of discussion between the attorney and client – a topic otherwise proper subject of the exercise of privilege.  And, common sense dictates “the client’s ultimate motive for litigation or for retention of an attorney is privileged.”  In re Grand Jury Witness v. United States, 695 F.2d 359, 362 (9th Cir. 1982).   But, despite the foregoing concerns, more than likely any court pressed with the issue will characterize the date the attorney and client first communicated to be an “independent fact” not warranting protection under the attorney-client privilege.  After all, the fact that an attorney-client relationship exists is not confidential, and, the date itself is not technically a confidential communication, but instead an underlying event.  The court’s ruling in State Farm Fire, supra, 54 Cal.App.4th 625 is particularly instructive regarding the rejection of privilege while still being mindful of the underlying facts referenced within the communication.  In State Farm, the court held that the attorney-client privilege did not extend to protect knowledge of facts such as business practices or existence of documents, nor did it cover independent facts related to communications such as the fact that they took place, the time, the date, and the participants.  Id.  These are the “independent facts” that do not merit protection.          

Another way of reaching the same conclusion is from the perspective of burden on any subsequent motion to compel.  The party asserting the attorney-client privilege “has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.”  Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal.4th 725, 733.  It is therefore necessary for the exercising party to meet the burden of showing that a communication occurred, which will at the very least require providing “evidence” of a date which is an underlying, unprotected fact.  Again, the what is protected, but not the who, when and where – the party seeking to hide behind the privilege will have to prove the latter three basic questions to meet its burden.   

 It seems clear enough that if the discovery question of retention asks only for an independent underlying fact, date, the attorney-client privilege cannot cloak the event of retention from disclosure.  However, to the extent the question of retention goes beyond merely the date of communication of the attorney and client and instead delves into the content of the communication, the privilege is more likely to apply.  Accordingly, the more interesting question, unaddressed in California, is how questions regarding long-term attorney-client relationships are treated.  Take the example of the client who has retained the attorney for many matters, or in-house counsel; the date of retention for the matter at hand in a repetitive relationship might be determined to improperly disclose a “motive for litigation.”  As such, strangely enough, first-time attorney retention may be treated differently than an ongoing relationship.  Along a similar vein, privilege might apply to the actual question “when did you retain your lawyer for this matter,” but not “when did you first speak with your lawyer.”   The more the party asserting privilege can show that the question of retention delves into subject matter, and not just “independent facts,” the more likely protection will be afforded.   
In the event an opposing attorney objects to retention questions at deposition, remember to ground the questions on “independent facts” as best possible.  To the extent you are able to divorce the who, when and where from the what, you are more likely to succeed in proving that the otherwise all-encompassing attorney-client privilege is not properly invoked.