Untitled California Attorney General Opinion

Opinion

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.

* * * * *

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