The First District holds an attorney’s factual investigation conducted on behalf of a client is protected by the attorney-client privilege and the work product doctrine, regardless of whether the attorney rendered legal advice.
Andrea Waters was the first firefighter and paramedic for the City of Petaluma (City). Claiming harassment, discrimination and retaliation, she went on leave. After the City received a notice of charge of discrimination from the U.S. Equal Employment Opportunity Commission (EEOC), Waters resigned. The City Attorney retained attorney Amy Oppenheimer to investigate the EEOC charge, and to assist in preparing a defense in an anticipated lawsuit.
Oppenheimer was to impartially investigate the EEOC charge. The retention agreement specified the investigation would be subject to the attorney-client privilege until the City waived the privilege, or a court determined that some or the investigation was not privileged. The agreement excluded Oppenheimer’s advice on how to respond to the EEOC complaint, leaving that to the City Attorney. Oppenheimer transmitted her report to the City in confidence.
Waters sought Oppenheimer’s report; the City objected it was protected by the attorney-client privilege or work product doctrine. The trial court held the attorney-client privilege did not apply because the City did not seek Oppenheimer’s legal advice, and the privilege did not extend to Oppenheimer’s factual investigation. The court concluded the City put the investigation at issue because it asserted an “avoidable consequences” defense arguing Waters failed to take advantage of preventive programs, and the report was the best evidence of what the City would have done earlier had Waters pursued her complaints while still employed.
The Court of Appeal observed a party claiming attorney-client privilege must establish a communication was made in the course of an attorney-client relationship. If established, the communication is presumed confidential, and the party challenging the privilege must establish the communication was not confidential or an exception applies.
A “client” is a person who, directly or through an authorized representative, consults a lawyer to retain the lawyer or secure legal service or advice. (Evid.Code, § 951) A “confidential communication” is information transmitted confidentially between a client and a lawyer during the relationship. (Evid.Code, § 952.) The test is not about each individual communication, but on the “dominant purpose” of the relationship. If a communication was made during an attorney client relationship, it is privileged, even if it includes factual material that can be discovered by other means.
C.C.P. § 2018.010 et seq. is the work product doctrine, which preserves the rights of attorneys to investigate favorable and unfavorable aspects of cases, and prevents adversaries from taking undue advantage of an attorney’s industry and efforts. The attorney has a qualified privilege against discovery of general work product and an absolute privilege against disclosure of writings containing the attorney’s impressions, conclusions, opinions or legal theories. Work product subject to a qualified privilege is not discoverable unless a court determines denial of discovery would unfairly prejudice the party seeking discovery or result in an injustice.
The attorney-client privilege and the work product doctrine are waived by disclosure to third parties if the disclosure contradicts goals of maintaining confidentiality or safeguarding the attorney’s work product. The attorney-client privilege applies only to communications; work product is broader, and may apply to material not communicated to the client.
Although the City was not seeking Oppenheimer’s legal advice, it had an attorney-client relationship with her. A client may retain the services of an attorney without seeking legal advice. Oppenheimer was retained for her expertise in employment law to identify the facts, synthesize the evidence, and conclude what actually happened, a professional legal service.
Assertion of the avoidable consequences defense did not result in waiver because this defense focuses on what steps the employer and employee took during employment. The Oppenheimer report was created after Waters resigned. Waters could have taken no steps in response to a post-employment report, and the City could not use the report to show it tried to prevent and correct workplace harassment while the employee was still employed.
Comment: This decision recognizes that modern practice requires attorneys to step outside of narrowly defined roles.