Legal Ethics Corner

Ethics Corner 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.  

A Shakespearean Whisper
“Shhhh! Keep your voice down.”  Attorneys probably say this in trial to our clients as often as we say “objection.”  Most of us presume that in the confined quarters of the courtroom our privilege applies and even if overheard it remains confidential. Some cases say otherwise.
The main problem case is People v. Urbano (2005) 128 Cal.App.4th 396 where Raymond Urbano allegedly beat up another person in, of all places, a bar. The victim couldn’t identify Urbano, but a friend and a bouncer could. At the preliminary hearing Urbano made a comment to his attorney while at counsel table about the identifying-friend-witness, something along the lines of “that dude don’t remember s**t, he was drunk” or he “can’t remember anything because he was drunk,” according to the prosecutor’s investigator. The investigator was at the far end of the prosecution’s table.
Urbano testified prior to trial admitting he made the statement. He testified he was talking to his attorney as he had done throughout the hearing. The court ruled the statement inadmissible because of the attorney-client privilege. “The court stated, ‘[I]t is inherently necessary if counsel are to communicate with their clients, and vice versa, during court proceedings that they be able to do so without fear that should they raise their voice[s] unnecessarily that those statements intended to be communications from counsel could be used against them.’ ” Sounds good so far.
But now for the rest of the story. The prosecutor then proffered another alleged communication (this characterization becomes important)—this one heard by the victim. He said he was sitting in the back of the courtroom while Urbano was talking to his attorney in the jury box before the court was in session. Urbano, according to the victim, pointed to the area where the victim and the witness-friend were sitting and said “[T]hat guy was drunk.” The Court of Appeal characterizes this as, “[a]t the time of Urbano's outburst, lawyers were engaged in conversation throughout the courtroom.” (Italics added.)
The defense argued that the intent to communicate confidentially with his attorney controls whether the privilege applies, citing, In re Jordan (1972) 7 Cal.3d 930 [103 Cal.Rptr. 849] (an in prison communication with attorney), and City and County of San Francisco v. Superior Court (1951) 37 Cal.2d 227 (attorney-client privilege covers physician hired by attorney to perform medical examination solely as agent for communication between attorney and client). The Urbano court found the “comment and a gesture” not privileged by distinguishing these cases reasoning there was no option but to disclose the communications to a third party therein but not in this case.
The burden is on the person asserting the privilege but only to establish the preliminary facts, i.e., that the communication was made in the course of the attorney-client relationship. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729; see also People v. Gionis (1995) 9 Cal.4th 1196, 1208.)  There is then a presumption of confidentiality, and the burden shifts to the party attacking the privilege. (Evid. Code § 917, Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732.)

When arguing for the privilege one should argue that “[t]he privilege ‘has been a hallmark of Anglo-American jurisprudence for almost 400 years.’” (Costco Wholesale Corp., supra, 47 Cal. 4th at 732, quoting Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599. “[T]he privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557.)
--Michael L. Crowley
**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.**