Friday, May 12, 2017

Don’t Quack to the Flack

Behunin v. Superior Court, No. B272225 (D2d7 Mar. 14, 2017)

Although it might not be litigated very often in state court, this question comes pretty frequently in high-stakes litigation: When do communications with PR people hired in connection with a litigation come under the cover of the attorney-client privilege?

Client hired a PR Consultant to create an allegedly defamatory website in order to put settlement pressure Opponent in a civil litigation. Among other things, the website accused Opponent of being a crony of the Suharto family in Indonesia. Opponent then sued for Client and its Lawyers defamation. The typical anti-SLAPP motion was filed and, somewhat unusually, the trial court appears to have permitted some discovery on the issue of malice.

 As part of this discovery, Opponent demands documents between Lawyers and PR regarding the web campaign. Client/Lawyers/PR claim attorney-client privilege, but the discovery special master on the case says no at least for some of them. The trial court overruled any objections and Opponent and Lawyers took a writ.

The facts raise two closely related questions: First, are the communications to which PR was privy privileged in the first instance? And second, does the presence of PR cause a waiver? That implicates several different statutes, including
§§ 912, 917, 952, and 954 of the Evidence Code. 

Section 954 defines the attorney-client privilege in terms of “confidential communications” between lawyer and client during the course of a professional relationship. Section 952, in turn, defines a “confidential communication” as a communication to which no third persons are privy, other than “those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted[.]”

Section 917 creates a presumption: a communication in the course of an attorney-client relationship is presumed to have been in confidence. It shifts the burden of proof to the opponent to establish it wasn’t.

Section 912 is the general privilege waiver statute in the Evidence Code. For any privilege, disclosure to a third party is usually a waiver, but § 912(d) has a specific exception “for when a disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer . . . was consulted.”

Citing some federal district court cases, the Court says that the presumption of confidentiality in § 917 does not apply when a third party is present. Because only the claimant of the privilege can know the purpose for which a third party has been made privy to otherwise privileged conversations, the Court finds it appropriate to shift the burden back to the claiming party to show that the communication is confidential and reasonably necessary to the client’s purpose in consulting the lawyer.

The Court further notes there are two general categories of cases where a third party’s presence is “reasonably necessary” and thus won’t preclude a “confidential communication
under § 952 or result in a waiver under § 912. (The “reasonably necessary standard is basically the same under both statutes.) First, there are cases where an agent or assistant of the attorney or litigant who helps to advance the client’s interest. And second, there are cases where the third party and the client each have their own interests but the interests are sufficiently aligned. The second category is basically the common interest doctrine. Only the first category is really at issue in this case.

The court notes that there isn’t any state authority on the point of when and how having PR folks privy to legal advice vitiates or waives the privilege. So it relies on some federal cases applying New York law in finding that “reasonably necessary” means that the third party must “serve some specialized purpose in facilitating the attorney-client communications.” Under this theory, a third party is under the tent only if its presence was “necessary to facilitate communications between [a party] and his counsel.” For instance an accountant or translator who is present to help explain the client’s situation to the attorney would be within the privilege. 

Based on that rule, the court holds that the privilege doesn’t apply to communications to which the PR agent was privy. PR’s presence wasn’t needed to provide assistance help Attorney communicate with Client. Indeed, the only connect between Lawyer and PR is that Lawyer acted as a liaison in helping Client hire PR. The court doesn’t buy the theory that the privilege should reach PR because PR was hired with the intention of generating press that put pressure on Opponent to settle. 

This seems a little cramped, particularly since there’s so little reliance on California authority. The “translator”-type function is certainly the type of agent whose presence shouldn’t break the privilege. But in addition to § 954’s reference those reasonably necessary to “the transmission of the information,” both statutes refer more generally to “the accomplishment of the purpose for which the lawyer is consulted.” That latter standard should encompass more than just the facilitation of attorney-client communications. For instance, what about when an attorney’s advice is relevant to inform the client’s other agents in fulfilling the client’s overall purpose for which the attorney was consulted? It doesn’t seem too crazy that it might serve a client’s greater legal interests to have a PR person in the room while legal advice is rendered. That way the PR can understand the legal context. (What if, for instance, the question is, “is this press release defamatory?”)  Which is not to say that discussions about PR are privileged, even if the attorney participates. But discussions about actual legal advice—viz., discussions
in the course of an attorney-client relationship as recently clarified in County of L.A.—potentially should be.

The court waffles a little on the point, noting that other non-California cases suggest third parties can remain within the attorney client privilege when they are the functional equivalent of client employees. That is, particularly when the client is an entity, there’s no principled basis to distinguish an in-house PR person, who would be considered a “client,” and an agent hired to do the same work as a consultant. Here, while Client apparently cited a bunch of these cases in his brief, he didn’t specifically argue that PR was the functional equivalent of an employee. Because the record apparently doesn’t reflect whether the Client/PR relationship would meet that kind of test, the court declines to actually address the merits of the it.

Writ denied.

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