By Andrew Servais and Chandler Ciernia
The attorney-client privilege protects against compelled disclosure of confidential communication between an attorney and her client. The Evidence Code takes this protection a step further by prohibiting attorneys and judges alike from drawing negative inferences from the invocation of the privilege.
In Carroll v. Commission on Teacher Credentialing (2020) Cal. App. WL 6253302, Plaintiff sued her former employer, California Commission on Teacher Credentialing, for terminating her employment in retaliation for her reporting the Commission mismanagement to the state auditor. Although a jury found for the plaintiff and awarded substantial damages, the California Court of Appeal reversed, finding the trial court prejudicially erred when it permitted plaintiff’s counsel to question defense witnesses about why they sought legal advice, so that the jury could draw negative inferences from the defense’s exercise of the attorney-client privilege.
To establish that defendants decided to terminate plaintiff as early as June 2010, plaintiff’s counsel questioned defense witnesses regarding email exchanges between them and defendants’ intent for seeking legal advice. Despite defense objections, the trial court allowed the questioning to continue.
In reviewing the issue, the Court of Appeal found that the trial court violated Evidence Code § 913 which states: “If … a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.” If the privilege is invoked, at the request of counsel, the court must instruct the jury that no presumption arises because of the exercise of the privilege and the jury may not draw any inference therefrom regarding any matter at issue in the proceeding or the credibility of a witness. (Evid. Code, § 913, subd. (b).)
Because plaintiff’s counsel was allowed to ask several questions about defendants’ intentions for seeking legal advice, the risk that the jury would ignore a section 913 instruction given just prior to deliberation was high. Thus, the Court of Appeal stated that although section 913 does not state when a trial court must give the mandated instruction, “as this case demonstrates it is far better practice to give it when privilege questions arise during the evidentiary phase of the trial as well as with the other instructions after the evidence has been presented to avoid the problems encountered here.” (Id.)
Regarding plaintiff’s counsel’s line of questioning, the Court explained the “trial court’s distinction between a persons’ intent for seeking legal advice and the content of the persons’ actual communication to obtain advice did not adequately protect the attorney-client privilege. Disclosing a specific reason for seeking advice will invariably disclose the contents of the communication to the attorney. While the reason itself may not be a protected communication, in this instance, counsel inquired into the intentions of the witnesses in order to disclose the contents of the communication or at least to have the jury infer that the communication dealt with discipline of the plaintiff. This circumvention of the attorney-client privilege is not allowed.”
The Court’s analysis here is important for practitioners to remember the attorney-client privilege is a sacred one. No matter an attorney’s motive, she should avoid towing the line described by the Carroll court.