Untitled California Attorney General Opinion ( 1988 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
: No. 87-704
of :
: January 14, 1988
JOHN K. VAN DE KAMP :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
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THE HONORABLE DWIGHT L. HERR, COUNTY COUNSEL, COUNTY OF
SANTA CRUZ, has requested an opinion on the following question:
Does the lawyer-client privilege or work-product rule,
when relied upon by a public officer, automatically terminate with
the settlement or adjudication of the underlying claim?
CONCLUSION
The lawyer-client privilege and work-product rule, when
relied upon by a public officer, do not automatically terminate
with the settlement or adjudication of the underlying claim.
ANALYSIS
In 70 Ops.Cal.Atty.Gen. 28 (1987), we recently concluded
that the lawyer-client privilege (see Evid. Code, §§ 953-954) and
the work-product rule (see Code Civ. Proc., § 2018) could be relied
upon in a grand jury proceeding to prevent disclosure of requested
information and that a public officer was entitled to claim the
protection of the privilege and rule regardless of the "official
information" privilege of Evidence Code section 1040. Left
unanswered in the opinion was whether the lawyer-client privilege
or work-product rule automatically terminated for the public
officer when the underlying claim was settled or adjudicated. (Id.
at p. 38, fn. 9.) We now address that question.
If the person claiming the privilege or relying upon the
rule were not a public officer, our task would be a simple one.
The Legislature has set forth in the Evidence Code the
characteristics of the lawyer-client privilege, including its
extension beyond any adjudication or settlement of a claim. (See
Evid. Code, §§ 953-954; Cal. Law Revision Com. com., Deering's Ann.
Evid. Code, § 954, p. 120.) As for the work-product rule, it also
extends beyond any adjudication or settlement of the underlying
claim. (See Code Civ. Proc., § 2018; National Steel Products Co.
v. Superior Court (1985) 164 Cal. App. 3d 476, 486; Fellows v.
Superior Court (1980) 108 Cal. App. 3d 55, 62-63; Popelka, Allard,
McCowan & Jones v. Superior Court (1980) 107 Cal. App. 3d 496, 501­
502.)1
What is different about public officers, however, is that
they are subject to the California Public Records Act (Gov. Code,
§§ 6250-6257; "Act") 2 which was enacted "for the explicit purpose
of 'increasing freedom of information' by giving the public 'access
to information in possession of public agencies' [citation]."
(C.B.S., Inc. v. Block (1986) 42 Cal. 3d 646, 651.)
While the general policy of the Act is to require the
disclosure of government information, it contains exceptions
allowing the withholding of government records in limited
circumstances. With respect to judicial proceedings, section 6260
states:
"The provisions of this chapter shall not be deemed
in any manner to affect the status of judicial records as
it existed immediately prior to the effective date of
this section, nor to affect the rights of litigants,
including parties to administrative proceedings, under
the laws of discovery of this state, nor to limit or
impair any rights of discovery in a criminal case."
1
In our prior opinion, we described the two categories of the
work-product rule; one is a conditional privilege and the other is
an absolute privilege. (70 Ops.Cal.Atty.Gen. 28, 32 (1987).) In
Fellows v. Superior Court, supra, 108 Cal. App. 3d 55, 62-63, the
court concluded that continuance of the rule "for subsequent
litigation applies both to work product which falls within the
conditional portion of the privilege and to work product which
falls within the absolute portion of the privilege." (See National
Steel Products Co. v. Superior Court, supra, 164 Cal. App. 3d 476,
486-492; Rumac, Inc. v. Bottomley (1983) 143 Cal. App. 3d 810, 816,
fn. 8; Propelka, Allard, McCowan & Jones v. Superior Court, supra,
107 Cal. App. 3d 496, 501-502; 1 De Meo, Cal. Deposition and
Discovery Practice (1987) § 28.06 [3]; 2 Witkin, Cal. Evidence (3d
ed. 1986) § 1145; Privileges for the Trial and Business Lawyer
(Cont.Ed.Bar 1983) § 2.19; Jefferson, Cal. Evidence Benchbook
(1982) § 41.2.)
2
All references hereafter to the Government Code are by
section number only.
2. 87-704
In addition to section 6260 (see Shepherd v. Superior Court (1976)
17 Cal. 3d 107, 124), subdivision (k) of section 6254 specifically
exempts from disclosure:
"Records the disclosure of which is exempted or
prohibited pursuant to provisions of federal or state
law, including, but not limited to, provisions of the
Evidence Code relating to privilege."
In light of these exclusions, it would seem undeniable
that the lawyer-client privilege and work-product rule could be
relied upon by a public officer to their full extent without
concern for the disclosure requirements of the Act. Well-
established principles of statutory construction support such a
conclusion. "[E]very statute should be construed with reference to
the whole system of law of which it is a part, so that all may be
harmonized and have effect." ( Moore v. Panish (1982) 32 Cal. 3d
535, 541.) "Wherever possible, potentially conflicting provisions
should be reconciled . . . ." ( Wells v. Marina City Properties,
Inc. (1981) 29 Cal. 3d 781, 788.) To the extent, then, that a
public officer were otherwise able to rely upon the privilege or
rule, including extension beyond adjudication or settlement of any
underlying claim, the Act appears to allow the assertion of such
right.
A different exemption provision of the Act, however,
somewhat complicates our resolution and forms the basis for the
question. Subdivision (b) of section 6254 allows the withholding
of government records under the following circumstances:
"Records pertaining to pending litigation to which
the public agency is a party, or to claims made pursuant
to Division 3.6 (commencing with Section 810), until the
pending litigation or claim has been finally adjudicated
or otherwise settled."3
This statutory exemption is temporary; it terminates when "the
pending litigation or claim has been finally adjudicated or
otherwise settled."
In State of California ex rel. Division of Industrial
Safety v. Superior Court (1974) 43 Cal. App. 3d 778, 783, the Court
of Appeal stated with respect to this disclosure exemption:
"Subdivision (b) exempts from disclosure records
pertaining to pending litigation to which a public agency
is a party. This essentially provides public agencies
with the protection of the attorney-client privilege,
3
The California Tort Claims Act (§§ 810-996.6) governs claims
and actions filed against public entities and public employees.
3. 87-704
including work product, for a limited period while there
is ongoing litigation."
If subdivision (b) of section 6254 provides public agencies with
the protection of the attorney-client privilege and work-product
rule, what is the purpose of subdivision (k)?
We believe that the Industrial Safety case must be
limited to its own unique set of facts. No lawyer-client privilege
or work-product rule was being asserted by the public agency;
indeed, the court specifically found that the challenged order
"does not require the disclosure of any documents or records coming
within the attorney-client privilege." (Id. at p. 783.) By use of
the word "essentially," the court cannot be said to have equated
lawyer-client communications, work-product files, and litigation
records. The terms are not coextensive. Just as lawyer-client
communications and work-product files are not identical (see 70
Ops.Cal.Atty.Gen. 28, 29-35 (1987)), a record may pertain to
pending litigation without being a confidential communication
between lawyer and client or produced at the initiative of the
attorney in preparation for trial. More importantly, the court
gave no indication that the Act purports to cover judicial
discovery rules, evidentiary matters, or privileges governed by
other statutory schemes.
Even assuming that a record came within subdivision (b)
of section 6254 and was no longer exempt from disclosure under its
provisions, other exemptions contained in the Act must necessarily
be considered. No single exemption from public disclosure under
the Act controls any other; each requires examination as to its
applicability. (See Vallejo v. California Highway Patrol (1979) 89
Cal. App. 3d 781, 784-787; Berkeley Police Assn. v. City of Berkeley
(1977) 76 Cal. App. 3d 931, 941; Cook v. Craig (1976) 55 Cal. App. 3d
773, 782-784; Black Panther Party v. Kehoe (1974) 42 Cal. App. 3d
645, 652-656.) We are directed to interpret statutes so as to
"produce internal harmony, avoid redundancy and accord significance
to every word and phrase" (Pacific Legal Foundation v. Unemployment
Ins. Appeals Bd. (1981) 29 Cal. 3d 101, 114); "a statute should not
be given a construction that results in rendering one of its
provisions nugatory." (People v. Craft (1986) 41 Cal. 3d 554, 560.)
As one commentator has appropriately observed with respect to the
specific provisions of subdivision (b) of section 6254:
"The exemption remains applicable until final
settlement of the claim, at which time the exemption
ceases to apply, and the information must be made
available, unless another exemption becomes applicable."
(Comment, A Look at the California Public Records Act and
its Exemptions (1984) 4 Golden Gate L.Rev. 203, 216,
emphasis added.)
4. 87-704
Accordingly, after pending litigation has been adjudicated or
settled, the provisions of subdivision (k) of section 6254 would
remain applicable if the material came within the lawyer-client
privilege or work-product rule.
The lawyer-client privilege is provided in order to
promote full disclosure in the relationship between lawyer and
client. (See Mitchell v. Superior Court (1984) 37 Cal. 3d 591, 599;
City & County of San Francisco v. Superior Court (1951) 37 Cal. 2d
227, 235; American Mut. Liab. Ins. Co. v. Superior Court (1974) 38
Cal. App. 3d 579, 593.) For lawyers and specified others, the work-
product rule is to "(1) provide an incentive for thorough
preparation of their case for trial, (2) promote the investigation
of not only the strengths but also the weaknesses of their case,
and (3) prevent one party from taking unfair advantage of another
party's industry and efforts." (Code Civ. Proc., § 2018, subd.
(a); see People v. Collie (1981) Cal.3d 43 Cal. 3d 43, 60, fn. 13;
National Steel Products Co. v. Superior Court, supra, 164
Cal. App. 3d 476, 486; Rumac, Inc. v. Bottomley, supra, 143
Cal. App. 3d 810, 815; Popelka, Allard, McGowan & Jones v. Superior
Court, supra, 107 Cal. App. 3d 496, 501.) The purposes of the rule
and privilege and the full application of each are as important to
government lawyers as to those in private practice. (See Holm v.
Superior Court (1984) 42 Cal. 2d 500, 506-509; City and County of
S.F. v. Superior Court, supra, 37 Cal. 2d 227, 234-237; City of Long
Beach v. Superior Court (1976) 64 Cal. App. 3d 65, 71-72; People v.
Boehm (1969) 270 Cal. App. 2d 13, 21; Sacramento Newspaper Guild v.
Sacramento County Bd. of Suprs. (1968) 263 Cal. App. 2d 41, 53-54;
Jessup v. Superior Court (1957) 151 Cal. App. 2d 102, 107-110.)
In answer to the question presented, therefore, we
conclude that the lawyer-client privilege and work-product rule,
when claimed by a public officer, do not automatically terminate
upon settlement or adjudication of the underlying claim.
* * * * *
5. 87-704