Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Novel Issue Decided in Recent San Diego Case Involving the Scope of the Attorney-Client Privilege

The inveterate tension between the duty to protect a client's  confidences at every peril to oneself and the duty to produce evidence never disappoints in producing an intriguing legal dilemma. That dilemma played out recently in Zimmerman v. Superior Court of San Diego County, 2013 Cal. App. LEXIS 805, a murder case, and one of the first impressions involving these competing ethical duties. Cases like Zimmerman well­ illustrate the challenging ethical snares criminal defense counsel can face, and the consequences that can flow from balancing their various ethical obligations.

Evidence Code §§ 950 and 952 set forth the attorney-client privilege, which keeps confidential all communications  between client, the client's  agent, and lawyer. Accordingly, a lawyer must maintain inviolate the confidences and secrets of the client at every peril to himself or herself. (Bus. and Prof. Code § 6068 (e) (1); Cal. Rule of Prof. Conduct Rule 3-100.)

At the same time, counsel is prohibited from suppressing any evidence that counsel "has a legal obligation to reveal or to produce." (Cal. Rule of Prof. Conduct 5-220.) Hence, an attorney must not only turn over evidence given to him by third parties, but also testify as to the source of that evidence. (People v. Lee (1970) 3 Cal.App.3d 514, 526.) Further, a defendant in a criminal case may not permanently sequester physical evidence by delivering it to his attorney. (Evid. Code§135; People v. Lee (1970) 3 Cal.App.3d 514.) While the fact that the client or the client's agent delivered such evidence to his attorney may be privileged, the physical object itself does not become privileged merely by reason of its transmission to the attorney.

These fundamental ethics principles recently collided in our Superior Court.

In Zimmerman, a criminal defense attorney represented a defendant charged with murder for financial gain. Counsel properly lodged with the court a will, trust, and unopened mail belonging to the victim that had come into counsel's possession and which was later released to the prosecution. Naturally, the prosecution wanted to know more about the documents and how counsel came into possession of them. At an evidentiary hearing, counsel refused to answer several questions about the documents claiming the attorney-client privilege. She testified that she received the evidence through her client's agent but would not provide any details about the agency. The trial court found counsel had failed to establish the privilege and, while noting her distinguished career and good faith, held her in contempt.

In deciding a petition for writ of prohibition filed by counsel, the Court of Appeal disagreed that the existence of the privilege could be satisfied by hearsay from the attorney stating she received evidence from her client's agent with nothing more, and consequently held that additional facts are required. The petition was denied

in a published opinion and the case sent back to the trial court for further

Though counsel in Zimmerman did not prevail, the case is a good example of how the intersection of fundamental ethics rules and legal principles can present challenging predicaments for counsel to navigate at every peril.

--Bryn Kathryn Kirvin, Deputy District Attorney, San Diego District Attorney's Office

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**