Untitled California Attorney General Opinion ( 1987 )


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  •                   TO BE PUBLISHED IN THE OFFICIAL REPORTS
    OFFICE OF THE ATTORNEY GENERAL
    State of California
    JOHN K. VAN DE KAMP
    Attorney General
    _________________________
    :
    OPINION                     :                 No. 86-704
    :
    of                      :            JANUARY 30, 1987
    :
    JOHN K. VAN DE KAMP                  :
    Attorney General                  :
    :
    RODNEY O. LILYQUIST                  :
    Deputy Attorney General             :
    :
    ________________________________________________________________________
    THE HONORABLE DWIGHT L. HERR, COUNTY COUNSEL,
    COUNTY OF SANTA CRUZ, has requested an opinion on the following questions:
    1.    Is the lawyer-client privilege or the work- product rule available in a
    grand jury proceeding to prevent disclosure of requested information?
    2.    Is a public officer entitled to claim the lawyer-client privilege or rely
    upon the work-product rule to prevent disclosure of requested information?
    CONCLUSIONS
    1.     The lawyer-client privilege and the work- product rule are available
    in a grand jury proceeding to prevent disclosure of requested information.
    2.    A public officer is entitled to claim the lawyer-client privilege and
    rely upon the work-product rule to prevent disclosure of requested information.
    1
    86-704
    ANALYSIS
    The two questions presented for analysis concern certain documents
    prepared by city officers evaluating personal injury claims filed against the city. A
    county grand jury has subpoenaed the documents. May the city officers claim the
    lawyer-client privilege or rely upon the work-product rule in order to prevent disclosure
    of some or all of the documents to the grand jury?
    1. Grand Jury Proceedings
    The first question to be resolved is whether as a general matter the lawyer-
    client privilege or work-product rule is available to be claimed by a witness in a grand
    jury proceeding. We conclude that both are generally available in such a proceeding.
    Preliminarily, we note that "the grand jury is a 'judicial body' [citation], 'an
    instrumentality of the courts of this state . . . .' [citations]." (People v. Superior Court
    (1975) 
    12 Cal. 3d 430
    , 438.) It performs both a criminal and civil function—indicting
    persons for crimes and investigating and reporting upon matters of local government.
    (Gillett-Hanes-Duranceau & Associates, Inc. v. Kemple (1978) 
    83 Cal. App. 3d 214
    , 221;
    64 Ops.Cal.Atty.Gen. 900, 901-902 (1981).) It may summon witnesses and subpoena
    records. Its "power is analogous to that of an administrative inquiry." (People v. Sperl
    (1976) 
    54 Cal. App. 3d 640
    , 654; see 67 Ops.Cal.Atty.Gen. 58, 63 (1984).)
    A. Lawyer-Client Privilege
    Evidence Code section 9541 states in part:
    "Subject to Section 921[2] and except as otherwise provided in this
    article, the client whether or not a party, has a privilege to refuse to
    disclose, and to prevent from disclosing, a confidential communication
    between client and lawyer if the privilege is claimed by:
    "(a) The holder of the privilege;
    "(b) A person who is authorized to claim the privilege by the holder
    of the privilege; or
    1
    All references to the Evidence Code are by section number only.
    2
    Section 921 concerns the manner in which certain privileges may be waived by the holder.
    2
    86-704
    "(c) The person who was the lawyer at the time of the confidential
    communication, but such person may not claim the privilege if there is no
    holder of the privilege in existence or if he is otherwise instructed by a
    person authorized to permit disclosure."
    The lawyer-client privilege covers not only private conversations held
    between lawyer and client but also disclosures made through intermediaries reasonably
    necessary to accomplish the purpose for which the lawyer is consulted. (§ 951; 2 Witkin,
    Cal. Evidence (3d ed. 1986) § 1107, pp. 1047-1048; 2 Jefferson, Cal. Evidence
    Benchbook (2d ed. 1982) § 40.1, p. 1419.) The privilege is provided in order to promote
    full disclosure in the relationship between lawyer an client. (City & County of S.F. v.
    Superior Court (1951) 
    37 Cal. 2d 227
    , 235.) "'[T]he absence of the privilege would
    convert the attorney habitually and inevitably into a mere informer for the benefit of the
    opponent.'" (Ibid.; see Mitchell v. Superior Court (1984) 
    37 Cal. 3d 591
    , 599; American
    Mut. Liab. Ins. Co. v. Superior Court (1974) 
    38 Cal. App. 3d 579
    , 593.)
    The lawyer-client privilege is contained in division 8 (§§ 900-1070) of the
    Evidence Code which deals with a wide variety of privileges. While these provisions
    would be applicable with respect to the admissibility of evidence in a court action, would
    they control what evidence may be obtained in a grand jury proceeding? The answer is
    found in section 910, which provides:
    "Except as otherwise provided by statute, the provisions of this
    division apply in all proceedings. The provisions of any statute making
    rules of evidence inapplicable in particular proceedings, or limiting the
    applicability of rules of evidence in particular proceedings, do not make
    this division inapplicable to such proceedings."
    "Proceedings" is defined in section 901 as follows:
    "'Proceeding' means any action, hearing, investigation, inquest, or
    inquiry (whether conducted by a court, administrative agency, hearing
    officer, arbitrator, legislative body, or any other person authorized by law)
    in which pursuant to law, testimony can be compelled to be given."
    As commented by the California Law Revision Commission ("Commission"):
    "'Proceeding' is defined to mean all proceedings of whatever kind in
    which testimony can be compelled by law to be given. It includes civil and
    criminal actions and proceedings, administrative proceedings, legislative
    hearings, grand jury proceedings, coroners' inquests, arbitration
    3
    86-704
    proceedings, and any other kind of proceeding in which a person can be
    compelled by law to appear and give evidence. This broad definition is
    necessary in order that Division 8 may be made applicable to all situations
    where a person can be compelled to testify." (Cal. Law Revision Com.
    com., Deering's Ann. Evid. Code, § 901, p. 66, emphasis added.)3
    Several reasons have been noted by the Commission for granting the use of
    these privileges in proceedings other than court actions:
    "If confidentiality is to be protected effectively by a privilege, the
    privilege must be recognized in proceedings other than judicial
    proceedings. The protection afforded by a privilege would be insufficient if
    a court were the only place where the privilege could be invoked. Every
    officer with power to issue subpoenas for investigative purposes, every
    administrative agency, every local governing board and many more persons
    could pry into the protected information if the privilege rules were
    applicable only in judicial proceedings." (Cal. Law Revision Com., com.,
    Deering's Ann. Evid. Code, § 910, p. 69.)
    Section 910, however, does allow for "exceptions" -- where a specific
    privilege will not be available in a particular proceeding. The Commission has
    commented:
    "Statutes that relax the rules of evidence in particular proceedings do
    not have the effect of making privileges inapplicable in such proceedings.
    For example, Labor Code Section 5708, which provides that the officer
    conducting an Industrial Accident Commission proceeding 'shall not be
    bound by the common law or statutory rules of evidence,' does not make
    privileges inapplicable in such proceedings. Thus, the lawyer-client
    privilege must be recognized in an Industrial Accident proceeding. On the
    other hand, Division 8 and other statutes provide exceptions to particular
    privileges for particular types of proceedings. E.g., Evidence Code § 998
    (physician-patient privilege inapplicable in criminal proceeding); Labor
    Code §§ 4055, 6407, 6408 (testimony by physician and certain reports of
    physicians admissible as evidence in Industrial Accident Commission
    3
    "Explanatory comments by a law revision commission are persuasive evidence of the intent
    of the Legislature." (Brian W. v. Superior Court (1978) 
    20 Cal. 3d 618
    , 623; see People v.
    Williams (1976) 
    16 Cal. 3d 663
    , 667; Kaplan v. Superior Court (1971) 
    6 Cal. 3d 150
    , 158, fn. 4.)
    4
    86-704
    proceedings)." (Cal. Law Revision Com. com., Deering's Ann. Evid. Code,
    § 910, pp. 69-70.)
    Pursuant to section 910, therefore, our inquiry may be reduced to
    determining whether any statute dealing with grand jury proceedings precludes the use of
    the lawyer-client privilege. Research has revealed no such statute and none has been
    brought to our attention. Accordingly, we conclude that a witness in a grand jury
    proceeding may claim the lawyer-client privilege.
    B.     Work-Product Rule
    Code of Civil Procedure section 2016, subdivision (b), states in part:
    "The work product of an attorney shall not be discoverable unless
    the court determines that denial of discovery will unfairly prejudice the
    party seeking discovery in preparing his claim or defense or will result in
    an injustice, and any writing that reflects an attorney's impressions,
    conclusions, opinions, or legal research or theories shall not be discoverable
    under any circumstances."
    Subdivision (h) of the same statute provides:
    "It is the policy of this state (i) to preserve the rights of attorneys to
    prepare cases for trial with that degree of privacy necessary to encourage
    them to prepare their cases thoroughly and to investigate not only the
    favorable but the unfavorable aspects of such cases and (ii) to prevent an
    attorney from taking undue advantage of his adversary's industry or
    efforts."
    These statutory provisions codify the work-product rule in California. (Mitchell v.
    Superior Court (1984) 
    37 Cal. 3d 591
    , 609, fn. 8; People v. Collie (1981) 
    30 Cal. 3d 43
    ,
    59; Watt Industries, Inc. v. Superior Court (1981) 
    115 Cal. App. 3d 802
    , 804.)
    Prior to the enactment of these provisions in 1963 (Stats. 1963, ch. 1744,
    § 1), a work-product doctrine was recognized by the California courts, prohibiting
    disclosure on a case-by-case basis "in the interests of justice." (See San Diego
    Professional Assn. v. Superior Court (1962) 
    58 Cal. 2d 194
    , 204-205; Oceanside Union
    School Dist. v. Superior Court (1962) 
    58 Cal. 2d 180
    , 192; Suezaki v. Superior Court
    (1962) 
    58 Cal. 2d 166
    , 177-179; Greyhound Corp. v. Superior Court (1961) 
    56 Cal. 2d 355
    , 400-401; McCoy, California Civil Discovery: Work Product of Attorneys (1966) 18
    Stan.L.Rev. 783, 790-795.)
    5
    86-704
    Although not technically described as a "privilege" by the Legislature in the
    Evidence Code, the work-product rule has the same common law origin as the attorney-
    client privilege. (See In re Grand Jury Proceedings (8th Cir. 1972) 
    473 F.2d 840
    , 844-
    845.) The leading case describing its purposes is Hickman v. Taylor (1947) 
    329 U.S. 495
    , regularly quoted by the California courts. (See, e.g., Rumac, Inc. v. Bottomley
    (1983) 
    143 Cal. App. 3d 810
    , 815; Popelka, Allard, McCowan & Jones v. Superior Court
    (1980) 
    107 Cal. App. 3d 496
    , 501; City of Long Beach v. Superior Court (1976) 
    64 Cal. App. 3d 65
    , 71-72.)
    The Legislature has generally left to the judiciary the task of defining the
    scope of the work-product rule. At the time of codifying the rule, it stated: "The
    amendments to this act during the course of its passage shall not constitute evidence that
    the Legislature intended thereby to limit the courts in their interpretation of what
    constitutes the work product of an attorney." (Stats. 1963, ch. 1744, § 3; see also
    Williamson v. Superior Court (1978) 
    21 Cal. 3d 829
    , 834; Rumac, Inc. v. 
    Bottomley, supra
    , 
    143 Cal. App. 3d 810
    , 813; Mack v. Superior Court (1968) 
    259 Cal. App. 2d 7
    , 10.)
    The work-product rule has been judicially construed as having two parts:
    (1) an absolute protection against disclosure of a writing that reflects an attorney's
    impressions, conclusions, or legal research and (2) a qualified protection against
    disclosure of material of a derivative or interpretative nature. (Williamson v. Superior
    
    Court, supra
    , 
    32 Cal. 3d 829
    , 834; Lasky, Haas, Cohler & Munter v. Superior Court
    (1985) 
    172 Cal. App. 3d 264
    , 271; Aetna Casualty & Surety Co. v. Superior Court (1984)
    
    153 Cal. App. 3d 467
    , 478-479.) Included within the latter category are diagrams, audit
    reports, appraisals and expert opinions developed as a result of the initiative of counsel.
    (National Steel Products Co. v. Superior Court (1985) 
    164 Cal. App. 3d 476
    , 487; Fellows
    v. Superior Court (1980) 
    108 Cal. App. 3d 55
    , 68-69; Mack v. Superior 
    Court, supra
    , 
    259 Cal. App. 2d 7
    , 10.)
    Unlike the lawyer-client privilege, the work-product rule is available to
    (and may be waived by) the attorney although the client may claim the protection of the
    rule on behalf of an absent attorney. (Lasky, Haas, Cohler & Munter v. Superior 
    Court, supra
    , 172 Cal.App.3d at 271-279; Rumac, Inc. v. 
    Bottomley, supra
    , 143 Cal.App.3d at
    814-816; Fellows v. Superior 
    Court, supra
    , 108 Cal.App.3d at 63-65.)
    In People v. 
    Collie, supra
    , 
    30 Cal. 3d 43
    , 60, footnote 13, the Supreme
    Court described the following purposes of the work-product rule:
    "The most commonly recognized danger in ordering discovery of
    work product is that the attorney will be inhibited by the possibility that the
    strategies and ideas he develops to present his client's case could be put in
    6
    86-704
    the hands of the opposing party to the detriment of his client. (Hickman v.
    Taylor (1947) 
    329 U.S. 495
    , 510-511.) But also underlying the doctrine is
    the strong policy against putting the attorney's credibility in issue by
    introducing material he has prepared, and thus creating the possibility that
    he will be forced to testify."
    Hence, the work-product rule gives to an attorney a zone of privacy within which to
    investigate, analyze and prepare how best to represent his client. (See Code Civ. Proc.,
    § 2016, subd. (h); 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,
    McCowan & Jones v. Superior 
    Court, supra
    , 107 Cal.App.3d at 501.)
    The work-product rule is not limited to materials prepared in anticipation of
    litigation but also covers materials prepared in the role of counselor. (Aetna Casualty &
    Surety Co. v. Superior 
    Court, supra
    , 
    153 Cal. App. 3d 467
    , 478-479.) In Rumac, Inc. v.
    
    Bottomley, supra
    , 
    143 Cal. App. 3d 810
    , 815-816, the court stated:
    "Interestingly, there is no reference in the legislative background to
    the loss of the absolute privilege when the attorney's professional skills are
    limited to negotiating a business deal for a client. In light of the legislative
    effort devoted to the statute, it is reasonable to believe that had the
    Legislature intended to limit the privilege to litigation only it would have
    said so. The Legislature not only failed to provide for any such limitation,
    but in section 3 declared its intent that the courts were not to be constrained
    in their interpretation of the attorney's absolute work product privilege. . . .
    "The work product privilege provides an incentive for attorneys to
    maintain the highest professional competence. . . . We strongly believe
    there is no less need for the lawyer's professional competence in matters
    unrelated to litigation and observe the California Rules of Professional
    Conduct make no distinction between the trial and nontrial lawyer,
    applying to each with equal force. (See Cal. Rules of Prof. Conduct, rule 6-
    101.)
    "Moreover, protecting attorneys' work product when they act in a
    nonlitigation legal capacity furthers the important goal of reducing the
    likelihood of litigation." (Fns. omitted.)
    Even though the work-product rule is found in the discovery provisions of
    the Code of Civil Procedure, it has been held applicable at the time of trial. In Rodriguez
    v. McDonnell Douglas Corp. (1978) 
    87 Cal. App. 3d 626
    , 648, the court concluded:
    7
    86-704
    "The attorney's work-product privilege is          applicable at trial as
    well as at pretrial discovery proceedings. Although Code of Civil
    Procedure section 2016, subdivisions (b) and (g), are contained in the
    portion of the code dealing with discovery, the policy "to prevent an
    attorney from taking undue advantage of his adversary's industry or
    efforts," set forth in subdivision (g) (ii) of the Code of Civil Procedure, can
    be given adequate effect only if the attorney's work product privilege is
    interpreted to apply in both the trial setting as well as in the pretrial
    discovery setting."4
    The rule has also been extended to criminal proceedings by the Supreme
    Court. In People v. 
    Collie, supra
    , 30 Cal.3d at 59, the court stated:
    "We have never explicitly held the work-product doctrine applicable
    to criminal cases and neither has the Legislature, although it has codified
    the rule as to civil trials. (Code Civ. Proc., § 2016, subd. (b).) There is
    little reason, however, to withhold its protection from the criminally
    accused. Many other jurisdictions, including the federal courts, have
    applied the rule to criminal cases. (See, e.g., United States v. 
    Nobles, supra
    , 
    422 U.S. 225
    , 238, and cases cited.) As the United States Supreme
    Court noted in Nobles: "Although the work-product doctrine most
    frequently is asserted as a bar to discovery in civil litigation, its role in
    assuring the proper functioning of the criminal justice system is even more
    vital. The interests of society and the accused in obtaining a fair and
    accurate resolution of the question of guilt or innocence demand that
    adequate safeguards assure the thorough preparation and presentation of
    each side of the case." (Ibid.)
    We believe that the California courts would uphold reliance upon the work-
    product rule in a grand jury proceeding to prevent the disclosure of requested information
    for the same reasons as expressed in Rodriguez (civil trial actions) and Collie (criminal
    proceedings). The public nature of a grand jury's report prepared in its "watchdog" role
    of investigating the operations of local government (see People v. Superior 
    Court, supra
    ,
    4
    The legislative policy behind the work-product rule now expressed in Code of Civil
    Procedure section 2016, subdivision (h), was previously set forth in subdivision (g) of the statute.
    (See Stats. 1984, ch. 1127, § 1; Stats. 1982, ch. 848, § 1.) The Legislature has adopted new
    language to describe the rule effective July 1, 1987 (Stats. 1986, ch. 1334, §§ 2, 3), essentially
    codifying several judicial decisions and not intending "to alter, amend, or affect the law in
    existence at the time" of the change.
    8
    86-704
    
    13 Cal. 3d 430
    , 441-442), for example,5 makes the rule's application necessary to protect
    the interests specified by the Legislature in Code of Civil Procedure section 2016,
    subdivision (h). If reliance upon the work-product rule were denied, the information
    covered by subdivision (b) of the statute would become "discoverable" contrary to the
    Legislature's prohibition. Withholding the application of the rule would not serve the
    purpose of "encouraging full and fair representation of a client and preparation of a case
    without fear of subsequent scrutiny by opposing parties." (Popelka, Allard, McCowan &
    Jones v. Superior 
    Court, supra
    , 
    107 Cal. App. 3d 496
    , 502.) Federal courts and the courts
    of other states have already so concluded.
    The California judiciary has relied extensively upon the decisions of other
    jurisdictions, particularly federal cases, in determining the scope of the work-product
    rule. (See Fellows v. Superior 
    Court, supra
    , 
    108 Cal. App. 3d 55
    , 62-63; Papelka, Allard,
    McCowan & Jones v. Superior 
    Court, supra
    , 
    107 Cal. App. 3d 496
    , 501-502; City of Long
    Beach v. Superior 
    Court, supra
    , 
    64 Cal. App. 3d 65
    , 75-78.) The rule has been found
    applicable in grand jury proceedings in every federal circuit that has addressed the issue.
    (See In re Sealed Case (D.C. Cir. 1982) 
    676 F.2d 1073
    , 1077-1078; In re Special
    September 1978 Grand Jury (7th Cir. 1980) 
    640 F.2d 49
    , 61-62; In re Grand Jury
    Subpoena Dated Nov. 8, 1979 (6th Cir. 1979) 
    622 F.2d 933
    , 935; In re Grand Jury
    Proceedings (3d Cir. 1979) 
    604 F.2d 798
    , 803; In re Grand Jury Subpoena (2d Cir. 1979)
    
    599 F.2d 504
    , 511; In re September 1975 Grand Jury Term (10th Cir. 1976) 
    532 F.2d 734
    , 738; In re Grand Jury 
    Proceedings supra
    , 
    473 F.2d 840
    , 842-846.) It has also been
    applied in the grand jury proceedings of other states. (See, e.g., Matter of Bekins Storage
    Co. (1983) 
    460 N.Y.S.2d 684
    , 688-689; A v. District Court of Second Judicial District
    (Colo. 1976) 
    550 P.2d 315
    , 327-328.)
    In these cases the similarity between grand jury investigations and pretrial
    discovery proceedings has been noted. (See United States v. Nobles (1974) 
    422 U.S. 225
    , 247, fn. 6 (conc. opn. of White, J.); In re Special September 1978 Grand 
    Jury, supra
    , 
    640 F.2d 49
    , 61, fn. 17.) Moreover, the various privileges found in the
    Constitution, statutes and common law have historically been applied in grand jury
    proceedings. (See Branzburg v. Hayes (1972) 
    408 U.S. 665
    , 688; In re Sealed Case,
    5
    Penal Code section 925a authorizes a grand jury to "report upon the operations, accounts,
    and records of the offices, departments, functions, and the method or system of performing the
    duties of any [incorporated] city." We assume that the particular documents in question would
    be subject to disclosure to the grand jury except for the possible application of the lawyer-client
    privilege or work-product rule. Whether the documents, in whole or in part, come within the
    privilege or rule is beyond the scope of this opinion.
    9
    
    86-704 supra
    , 
    473 F.2d 840
    , 844; Comment, The Witness Before a Grand Jury (1967) 1967
    Duke L.J. 97, 121.)6
    As developed by the courts in California the work- product rule "operates in
    a somewhat similar fashion to a 'privilege.'" (Watt Industries, Inc. v. Superior 
    Court, supra
    , 
    115 Cal. App. 3d 802
    , 804.) Judicial interpretations of this rule have generally
    made it comparable "to the various privileges set forth in the Evidence Code." (Fellows v.
    Superior 
    Court, supra
    , 
    108 Cal. App. 3d 55
    , 65.) In light of these judicial pronouncements,
    we believe that a court would uphold reliance upon the work-product rule in a grand jury
    proceeding to prevent the disclosure of requested information.
    2.     The Official Information Privilege
    In Pitchess v. Superior Court (1974) 
    11 Cal. 3d 531
    , 540, the Supreme
    Court observed:
    "Evidence Code section 1040, therefore, represents the exclusive
    means by which a public entity may assert a claim of governmental
    privilege based on the necessity for secrecy."
    The second question presented concerns whether public officers are entitled to claim the
    lawyer-client privilege or rely upon the work-product rule following this statement in
    Pitchess regarding section 1040. We conclude that they are.
    Section 1040 provides a privilege against disclosure for "official information":
    "(a) As used in this section, 'official information' means information
    acquired in confidence by a public employee in the course of his or her duty
    and not open, or officially disclosed, to the public prior to the time the
    claim of privilege is made.
    "(b) A public entity has a privilege to refuse to disclose official
    information, and to prevent another from disclosing official information, if
    the privilege is claimed by a person authorized by the public entity to do so
    and:
    6
    Common law principles have been used to define the role of the California grand jury. (See
    People v. Superior 
    Court, supra
    , 
    13 Cal. 3d 430
    , 440; Fitts v. Superior Court (1936) 
    6 Cal. 2d 230
    , 240-241; Kennedy & Briggs, Historical and Legal Aspects of the California Grand Jury
    System (1955) 43 Cal.L.Rev. 251, 262.)
    10
    86-704
    "(1) Disclosure is forbidden by an act of the Congress of the United
    States or a statute of this state; or
    "(2) Disclosure of the information is against the public interest
    because there is a necessity for preserving the confidentiality of the
    information that outweighs the necessity for disclosure in the interest of
    justice; but no privilege may be claimed under this paragraph if any person
    authorized to do so has consented that the information be disclosed in the
    proceeding. In determining whether disclosure of the information is against
    the public interest, the interest of the public entity as a party in the outcome
    of the proceedings may not be considered.
    ". . . . . . . . . . . . . . . . . . . . . . .
    In Pitchess v. Superior 
    Court, supra
    , 
    11 Cal. 3d 531
    , a defendant in a
    criminal action sought to obtain certain records of a sheriff's office. The documents were
    within the scope of section 1040, but the sheriff refused to claim the privilege because he
    feared that the criminal charges would then be dismissed. (Id., at p. 539.) Instead, the
    sheriff sought to rely upon prior judicial decisions allowing a trial court to prohibit
    disclosure.7 In rejecting the sheriff's contention, the court stated:
    "The Legislature has declared that the Evidence Code generally
    'establishes the law of this state respecting the subject to which it relates.'
    (Evid. Code, § 2.) The statutory scheme is regarded as the sole and
    authoritative arbiter of all matters which come within its purview. With
    respect to the subject of privileges, the code states specifically that "[t]he
    provisions of Division 8 (commencing with Section 900) relating to
    privileges shall govern any claim of privilege made after December 31,
    1966." (Evid. Code, § 12, § subd. (c).) Thus, the Legislature has codified,
    revised, or supplanted any privileges previously available at common law:
    the courts are no longer free to modify existing privileges or to create new
    privileges. (See generally McDonough, California Evidence Code: A
    Precis (1966) 18 Hastings L.J. 89.)" (Id., at pp. 539-540.)
    This language in Pitchess immediately precedes the court's statement quoted above
    concerning the "exclusive means" of section 1040. It is apparent from the analytical
    context that the court was not questioning the right of public officers to claim the lawyer-
    7
    The Supreme Court pointed out that dismissal of the criminal charges would also be
    required under these cases. (Id., at p. 539, fn. 5.)
    11
    86-704
    client privilege or to reply upon the work-product rule. The court was solely concerned
    with emphasizing that the official information privilege was now contained in section
    1040, not in common law or judicial decision. Since both the lawyer-client privilege and
    work-product rule are codified, they would be upheld under the Pitchess analysis.
    This reading of Pitchess is consistent with the court's language in Shepherd
    v. Superior Court (1976) 
    17 Cal. 3d 107
    . The Shepherd court quoted the Pitchess
    statement in connection with the official information privilege (id., at p. 123) but
    separately and independently considered the application of the work-product rule (id. at
    pp. 121-122, 125.)
    The Pitchess statement was also quoted in Register Div. of Freedom
    Newspapers, Inc. v. County of Orange (1984) 
    158 Cal. App. 3d 893
    , 905. Here again,
    however, the court used the quotation in connection with the official information
    privilege and separately analyzed the lawyer-client privilege (id., at pp. 907-908).
    Government lawyers have historically been able to assert the lawyer-client
    privilege (Holm v. Superior Court (1954) 
    42 Cal. 2d 500
    , 506-509; City & County of S.F.
    v. Superior 
    Court, supra
    , 
    37 Cal. 2d 227
    , 234-237; Jessup v. Superior Court (1957) 
    151 Cal. App. 2d 102
    , 107-110). In Sacramento Newspaper Guild v. Sacramento County Bd.
    of Suprs. (1968) 
    263 Cal. App. 2d 41
    , 53-54, the court stated:
    "California decisional law assumes without discussion that the
    privilege is just as available to public agency clients and their lawyers as to
    their private counterparts. [Citations.] Codifying this notion, the Evidence
    Code distinctly includes public agencies and entities among the clients who
    may assert the privilege.
    ". . . . . . . . . . . . . . . . . . . . . . .
    "Plaintiffs do not dispute the availability of the lawyer-client
    privilege to public officials and their attorneys. They view it as a barrier to
    testimonial compulsion, not a procedural rule for the conduct of public
    affairs. The view is too narrow. The privilege against disclosure is
    essentially a means for achieving a policy objective of the law. The
    objective is to enhance the value which society places upon legal
    representation by assuring the client full disclosure to the attorney
    unfettered by fear that others will be informed. [Citations.] The privilege
    serves a policy assuring private consultation. If client and counsel must
    confer in public view and hearing, both privilege and policy are stripped of
    value." (Fn. omitted.)
    12
    86-704
    As mentioned in the Sacramento Newspaper case, the Legislature has
    specifically included "public entity" when defining the "holder of the privilege" for
    purposes of the lawyer-client privilege. (§ 953, subd. (d).) "Client" is broadly defined
    for this privilege to mean "a person who, directly or through an authorized representative,
    consults a lawyer" (§ 951), with "person" expressly including "public entity" (§ 175).8
    The California Law Revision Commission has commented: "Under Section 951, public
    entities have a privilege insofar as communications made in the course of the lawyer-
    client relationship are concerned. This codifies existing law. See Holm v. Superior
    Court, 
    42 Cal. 2d 500
    , 267 P.2d (1954) . . . ." (Cal. Law Revision Com. com., Deering's
    Ann. Evid. Code, § 951, p. 110; see also 2 Witkin, supra, p. 1054; 2 Jefferson, supra, p.
    1419.)
    Similarly, the work-product rule has been applied to public lawyers (see
    City of Long Beach v. Superior 
    Court, supra
    , 
    64 Cal. App. 3d 65
    , 71-72; People v. Boehm
    (1969) 
    270 Cal. App. 2d 13
    , 21) in the same manner as other attorneys.
    The Legislature has not provided for one privilege to supersede another.
    Rather, if one privilege is found inapplicable, the information remains exempt from
    disclosure if any other privilege applies. (Cal. Law Revision Com. com., Deering's Ann.
    Evid. Code, § 1040, p. 232; 2 Witkin, supra, p. 1160; 2 Jefferson, supra, pp. 1328-1334.)
    Nothing in the language of section 1040 suggests that it controls other privileges or
    renders nugatory the language of such other statutes as sections 951 and 1040 (privilege
    for identity of informer). We are to harmonize legislative enactments insofar as possible,
    not create conflicts. (People v. Craft (1986) 
    41 Cal. 3d 554
    , 560; Select Base Materials v.
    Board of Equal. (1959) 
    51 Cal. 2d 640
    , 645-647.)
    In answer to the second question, therefore, we conclude that a public is
    entitled to rely upon the lawyer- client privilege and work-product rule without regard to
    the availability of the official information privilege of section 1040.9
    8
    For a discussion concerning what person or persons may claim the privilege on behalf of a
    corporate entity or other organization, see D.I. Chadbourne, Inc. v. Superior Court (1964) 
    60 Cal. 2d 723
    , 736-738; Hoiles v. Superior Court (1984) 
    154 Cal. App. 3d 1192
    , 1198-1202; Benge
    v. Superior Court (1982) 
    131 Cal. App. 3d 336
    , 345-348; Sierra Vista Hospital v. Superior Court
    (1967) 
    248 Cal. App. 2d 359
    , 366-367.
    9
    The request for this opinion presented a third question which asked whether the lawyer-
    client privilege or work-product rule relied upon by a public officer automatically terminates
    with the settlement or adjudication of the underlying claim. (See Gov. Code, § 6254(b) and (k).)
    This question is at issue in the case of ACLU v. Murphy and the City and County of San
    Francisco, Case No. A030555 pending in the Court of Appeal for the First Appellate District,
    13
    86-704
    *****
    Division Four. We decline to respond to this question while it is pending before the courts. (See
    Foreword to 64 Ops.Cal.Atty.Gen. I, § (4)(a) and the Foreword to 66 Ops.Cal.Atty.Gen. IV,
    § C(9).)
    14
    86-704