California Evidence Code Section 954 gives you, as the client, the right to refuse to disclose confidential communications with your lawyer and to prevent anyone else from disclosing them.1California Legislative Information. California Code EVID 954 – Lawyer-Client Privilege The privilege belongs to you rather than to your attorney, it survives the end of the representation, and it continues after your death. It also has firm limits. Several statutory exceptions strip the protection entirely, and a single careless disclosure can waive it.
What the Privilege Covers
Not every conversation with a lawyer is privileged. Evidence Code Section 952 defines a confidential communication as information passed between you and your lawyer during the attorney-client relationship, transmitted by a means that, so far as you know, does not expose it to outsiders.2California Legislative Information. California Code EVID 952 – Confidential Communication Between Client and Lawyer The definition also covers legal opinions your lawyer forms and the advice your lawyer gives during that relationship.
A few people can be present without breaking confidentiality: anyone who furthers your interest in the consultation, and anyone whose involvement is reasonably necessary to transmit the information or accomplish the purpose of the representation. Your lawyer’s paralegal reviewing a document, or an interpreter translating your conversation, will not defeat the privilege. Venting about your case to a friend sitting next to you in the meeting almost certainly will.
California law presumes that communications between attorney and client were made in confidence. If someone challenges your privilege claim, the burden falls on them to prove the communication was not confidential.3California Legislative Information. California Code EVID 917 – Presumption of Confidentiality The presumption also reaches electronic communications. A message does not lose its privileged character just because it was sent by email or stored on a server where technical personnel could theoretically access it.
One boundary worth naming up front: the privilege protects communications for the purpose of legal advice. It does not protect communications where your lawyer is acting as a business negotiator, financial advisor, or general sounding board. When a lawyer wears multiple hats, courts look at the predominant purpose of each communication.
Who Holds the Privilege and Who Can Assert It
Section 954 places the privilege in the client’s hands. Your lawyer can assert it on your behalf when present during an attempt to compel disclosure, and in fact is required to do so, but the lawyer cannot waive it without your authorization.4California Legislative Information. California Code EVID 955 – Lawyer’s Duty to Claim Privilege
Section 953 spells out who steps in when you cannot assert the privilege yourself:5California Legislative Information. California Code EVID 953 – Holder of the Privilege
- A court-appointed guardian or conservator holds the privilege on your behalf, unless the guardian or conservator has an actual or apparent conflict of interest with you.
- Your executor or administrator holds the privilege after your death. The privilege does not die with you.
- If a corporation, partnership, or other entity dissolves, a successor, trustee in dissolution, or similar representative holds the privilege.
That last point matters for businesses winding down. Officers and directors normally control a corporation’s privilege while the entity exists, but once it ceases to exist, only a qualifying successor can assert or waive the privilege. If no successor exists, the privilege may effectively disappear.
Corporations and Their Employees
When a lawyer represents a corporation, the privilege belongs to the entity, not to individual officers, directors, or employees. Section 954 uses the word “persons,” and that term explicitly includes corporations, partnerships, limited liability companies, and other business entities.
A recurring question is whether communications between a company’s lawyer and rank-and-file employees qualify. The U.S. Supreme Court addressed this in Upjohn Co. v. United States, rejecting the narrow view that the privilege only covers conversations with top executives. Communications with lower-level employees can be privileged when the employee has information the lawyer needs to advise the company and that information relates to the employee’s job duties. If the lawyer asks an employee about something outside the scope of their work, the privilege likely will not attach.
When corporate counsel interviews employees, best practice is to make clear at the outset that the lawyer represents the company, not the individual, and that the company controls whether to keep the conversation confidential or disclose it later. Without that clarity, an employee may reasonably believe the lawyer is looking out for them personally, creating messy disputes later.
Statutory Exceptions Where No Privilege Exists
The Evidence Code carves out several situations where the privilege simply does not apply. These are not waivers. The protection never attaches in the first place.
Crime or Fraud
If you sought your lawyer’s services to help commit or plan a crime or fraud, those communications are not privileged.6California Legislative Information. California Code EVID 956 – Crime or Fraud Exception The exception requires that the legal services were sought or used to further the wrongdoing. Confessing a past crime to your lawyer remains privileged. Asking your lawyer to help you structure a transaction you know is fraudulent is not.
Preventing Death or Serious Harm
A lawyer may disclose a confidential communication if the lawyer reasonably believes disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm.7California Legislative Information. California Code EVID 956.5 – Prevention of Criminal Act This exception does not require that you used the lawyer’s services to plan the crime. It applies whenever the lawyer learns of the threat through a confidential communication during the representation. The standard is the lawyer’s reasonable belief, not certainty.
Breach of Duty Between Lawyer and Client
When a dispute arises between you and your lawyer about whether either of you breached a duty owed to the other, the privilege vanishes for communications relevant to that issue.8California Legislative Information. California Code EVID 958 – Breach of Duty Exception The most common scenario is a malpractice suit. Your lawyer can then disclose the very communications you claim were mishandled, because it would be unfair to let you accuse your lawyer of incompetence while blocking the lawyer from explaining what happened. The exception works both ways. If your lawyer sues you for unpaid fees, communications relevant to whether you owe the money also lose protection.
Deceased Client’s Wishes
Two provisions address privilege after a client’s death. Section 957 removes the privilege when all parties to a dispute claim through the deceased client, whether by will, intestate succession, or any other transfer.9California Legislative Information. California Code EVID 957 – Deceased Client, Parties Claiming Through Section 960 separately removes the privilege for communications about the deceased client’s intent regarding a deed, will, or other document affecting property interests.10California Legislative Information. California Code EVID 960 – Intention of Deceased Client Together, these exceptions keep the privilege from becoming an obstacle to carrying out a deceased person’s actual wishes when heirs or beneficiaries disagree.
Joint Clients
When two or more clients hire the same lawyer to handle a matter of shared interest, none of them can invoke the privilege against the others if a dispute later breaks out over that matter.11California Legislative Information. California Code EVID 962 – Joint Clients This comes up frequently with business partners who use one attorney to form a company and later sue each other. Communications from the joint representation are fair game in the lawsuit between them. The exception also reaches successors in interest, so selling your share of the business does not insulate you.
How Waiver Destroys the Privilege
Waiver is where most privilege disasters happen. It occurs when the holder’s own actions destroy protection that would otherwise exist.
Intentional Waiver
Under Section 912, you waive the privilege if you voluntarily disclose a significant part of a privileged communication, or consent to someone else disclosing it, without being coerced.12California Legislative Information. California Code EVID 912 – Waiver of Privilege Consent can be explicit or implied, including by failing to assert the privilege when you have the standing and opportunity to do so. If your opponent introduces a privileged document at a deposition and you say nothing, you may have just waived by inaction.
California does not follow a rigid subject-matter waiver rule. Disclosing one privileged communication does not automatically waive the privilege over every communication touching the same topic. The waiver extends only as far as fairness requires, and a court will consider what you disclosed, the context, and whether allowing you to keep related communications secret would give you an unfair advantage.
Two disclosures do not count as waiver. A disclosure that is itself privileged (for instance, sharing a communication with another attorney under a common interest arrangement) does not trigger waiver. Neither does a disclosure made in confidence that is reasonably necessary to accomplish the purpose of the representation, such as sharing information with an expert your lawyer has retained.
When multiple clients jointly hold the privilege, one holder’s waiver does not destroy it for the others. If you and a co-client shared the same attorney, your decision to discuss the case publicly does not strip your co-client’s ability to assert the privilege in separate proceedings.
Inadvertent Disclosure
Accidentally producing a privileged document during discovery is one of the most stressful privilege problems, especially with the volume of electronically stored information in modern litigation. Code of Civil Procedure Section 2031.285 establishes a procedure for electronic records.13California Legislative Information. California Code CCP 2031.285 – Inadvertent Production of Privileged Information
If you realize you have accidentally produced privileged material, you notify the receiving party of the privilege claim and the basis for it. The receiving party must immediately stop using the information and either return it or present it to the court under seal. To challenge the privilege claim, the receiving party has 30 days to file a motion. Until the court rules, the information stays confidential and cannot be used for any purpose. If the receiving party already disclosed the information to others before being notified, they must take reasonable steps to retrieve it. Speed matters. The longer you wait to notify the other side after discovering the mistake, the weaker your position becomes.
The Ethical Duty of Confidentiality Is Broader
The privilege under Section 954 is an evidentiary rule. It governs what can be forced out during legal proceedings. Your lawyer also owes you a separate, broader ethical duty of confidentiality that applies at all times. Under Business and Professions Code Section 6068(e), an attorney must maintain your confidences inviolate and preserve your secrets at every peril to themselves.14California Legislative Information. California Code BPC 6068 – Duties of Attorney
The ethical duty reaches further than the privilege in a key way. The privilege covers only communications between you and your lawyer. The ethical duty covers all information relating to your representation, whatever the source. If your lawyer learns a damaging fact about you from a public record while working on your case, the privilege would not cover that fact because it was not communicated by you, but the ethical duty would still prohibit your lawyer from revealing it. A narrow exception mirrors the Evidence Code: your attorney may, but is not required to, disclose confidential information to prevent a criminal act the attorney reasonably believes will result in death or serious bodily harm.
Work Product Is a Separate Protection
People often confuse the attorney-client privilege with the work product doctrine, but they protect different things. The privilege shields communications between you and your lawyer. Work product protection shields materials your lawyer prepares in anticipation of litigation, including research memos, case strategies, and interview notes. A single document can qualify for both, but losing one does not necessarily mean losing the other.
California’s work product statute, Code of Civil Procedure Section 2018.030, creates two tiers.15Justia. California Code CCP 2018.010-2018.080 – Work Product Writings reflecting an attorney’s impressions, conclusions, opinions, or legal theories receive absolute protection and are never discoverable. Other attorney work product, such as factual compilations and witness statements, receives qualified protection and can be discovered if withholding it would unfairly prejudice the opposing party or result in an injustice.
Which Rules Apply in Federal Court
If your California case ends up in federal court, the privilege rules that apply may change. Federal Rule of Evidence 501 provides that federal common law governs privilege claims in federal-question cases.16Legal Information Institute. Rule 501 – Privilege in General In civil cases where state law supplies the rule of decision, including diversity jurisdiction cases, state privilege law applies. If you are litigating a California contract dispute in federal court based on diversity, California’s Evidence Code provisions govern the privilege, not federal common law. As a practical matter, if your claims arise under California law, Section 954 and its companion provisions will usually follow you into federal court.