Attorney-client privilege may not protect a communication that was not confidential legal advice, was voluntarily disclosed in a way that waives privilege, or falls within a defined exception. But a third person hearing a conversation, an email being stored electronically, or a client asking counsel about an alleged past crime does not automatically destroy privilege. The facts and the reason counsel was consulted matter. California’s evidentiary privilege is also different from a lawyer’s broader professional duty to keep client information confidential. (Evidence Code § 951, § 952, § 954; Business and Professions Code § 6068(e))
What facts can change the answer?
| Question | What California law asks |
|---|---|
| Was the communication for legal advice? | A person consulting a lawyer to obtain professional legal services can qualify as a client, including while seeking to retain counsel. A witness to an event does not become unavailable as a witness just because the person later discusses it with a lawyer. (Evidence Code § 951 and § 952) |
| Was it confidential? | Privilege generally covers a confidential communication made in the legal consultation. Some people who help further the consultation or whose participation is reasonably necessary may be present without defeating confidentiality. An unnecessary listener can change the analysis, but a third person’s presence is not automatically fatal. (Evidence Code § 952) |
| Did the holder disclose it? | A holder’s voluntary disclosure of a significant part of a privileged communication, or consent to that disclosure, can waive privilege for that communication. The statute has qualifications, including for disclosure reasonably necessary to accomplish the purpose of the consultation. A screenshot, copied recipient, or electronic storage does not by itself answer whether a waiver occurred. (Evidence Code § 912 and § 917) |
| Was legal help sought to further a crime or fraud? | The crime-fraud exception applies when lawyer services were sought or obtained to enable or aid someone to commit or plan a crime or fraud. Advice about defending against or responding to an alleged past act is not automatically within that exception. (Evidence Code § 956; People v. Clark (1990) 50 Cal.3d 583, 621–623) |
California’s Supreme Court has explained that a client’s statement of criminal intent alone did not establish the crime-fraud exception in Clark. The issue is whether the lawyer’s services were sought to help carry out or plan the crime or fraud. A person should describe the concern candidly to counsel instead of deciding from a short message or phrase that privilege has already been lost. (Evidence Code § 956; People v. Clark)
A serious-harm exception is separate
Evidence Code § 956.5 addresses a lawyer’s reasonable belief that disclosure is necessary to prevent a criminal act likely to cause death or substantial bodily harm. The professional confidentiality rule is broader than the evidentiary privilege: California Business and Professions Code § 6068(e) and Rule of Professional Conduct 1.6 permit a lawyer, in narrowly defined circumstances, to disclose information reasonably necessary to prevent that harm. The rule does not require disclosure, and the permission is not a general reporting duty. These professional rules should not be confused with whether a communication is privileged evidence. (Evidence Code § 956.5; Business and Professions Code § 6068(e); California Rule of Professional Conduct 1.6)
Other exceptions are narrow and depend on the dispute. For example, Evidence Code § 958 addresses a relevant communication in a claim between lawyer and client, while § 962 concerns a specified civil proceeding between joint clients. Neither means a fee disagreement or co-defendant relationship opens every communication in an unrelated criminal case. (Evidence Code §§ 958 and 962)
Before discussing a possible disclosure
Make a private note of who spoke, who could hear or receive the communication, why counsel was consulted, and what was later shared and with whom. Keep any subpoena, recording notice, or message identifying a possible disclosure. Do not post or broadly forward the communication while trying to decide whether it is protected. A necessary interpreter or other person assisting the legal consultation may be treated differently from someone copied for convenience; counsel needs the actual circumstances.
If the concern involves a jail call with a lawyer, see our California guide to recorded jail calls with counsel. If multiple defendants share counsel, the guide to co-defendants using the same defense lawyer addresses that separate conflict question. The criminal defense overview provides broader service context; its existing copy should be reviewed before any public integration of this proposed page.
The Law Offices of David S. Chesley can discuss the specific communication and confidentiality concern in a California criminal case. Call (800) 755-5174.