Criminal Defense of Immigrants


§ 3.51 3. Attorney-Client and Work-Product Privileges

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Filing a habeas petition, on grounds of ineffective assistance of counsel, may waive attorney‑client and work‑product privileges as to confidential matters within the memory or file of original trial counsel.[140]   The court before which the matter is pending may find that making these claims places at issue all related attorney-client communications, and waives the attorney-client privilege as to all communications relating to the claims raised.[141]  Trial counsel may be granted the power to breach these privileges in order to “defend himself.”[142]

                In In re Gray,[143] the court held that “the attorney‑client privilege is waived as to matters put in issue in habeas corpus proceedings where the competency of defendant’s trial attorney is at issue.”[144]  The waiver is limited “to issues raised in the petition . . . .“[145] 


                Thus, the attorney may not divulge privileged information that does not bear on the specific allegation of IAC.  The privilege remains as to all matters not relevant to the claim of ineffective counsel.[146] 


                The privilege is intact until a court rules it has been breached, since the attorney must honor the client’s privilege until instructed to the contrary.[147]


                In People v. Dennis,[148] the court held that an IAC claim in a new trial motion waives the privilege.


                Counsel should carefully consider what confidential communications are relevant to the IAC claims in order to avoid breaching the privilege as to any matters not waived.  It is prudent to await a judicial determination that the privilege has been waived as to a particular communication before divulging the contents of that communication.

[140] For example, California Evidence Code § 958 provides that “there is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer‑client relationship.”

[141] See Weil v. Investment Indicators, Research & Management, 647 F.2d 18, 23-25 (9th Cir. 1981) (a party may not disclose a privileged attorney-client communication concerning a matter that is relevant to issues in the case and then invoke the attorney-client privilege to prevent discovery of other communications about the same matter).

[142] In Carlson, Collins, Gordon & Bold v. Banducci, 257 Cal.App.2d 212 (1967), the attorneys sued the client to collect their fee and had to breach the privilege to show why the case was particularly difficult.  The court upheld the breach of privilege on the ground that “when in litigation between an attorney and his client, an attorney’s integrity, good faith, authority, or performance of his duties is questioned, the attorney is permitted to meet this issue with testimony as to communications between himself and his client.”  In People v. Morris, 20 Cal.App.3d 659 (1971), the court held that Evidence Code § 958 applied in the criminal context, in which the client claimed the attorney had told him he would receive no more than six months in custody if he pleaded guilty.  The client was later charged with perjury for making this claim under oath.  The court upheld this breach of the privilege, relying on B. Witkin, California Evidence § 824 (3d ed. 1986).

[143] In re Gray, 123 Cal.App.3d 614 (1981).

[144] Ibid., at 615‑616.  See also People v. Pope, 23 Cal.3d 412, 440 (1979) (Mosk, J., dissenting).  A petitioner for habeas corpus may learn, to his sorrow, that by opening up the issue of his trial attorney’s ability in a new proceeding, he waived much of the attorney‑client privilege.  A trial attorney whose competence is assailed by his former client must be able to adequately defend his professional reputation, even if by doing so he relates confidences revealed to him by the client.

[145] Ibid., at 617.

[146] See also United States v. Dupas, 14 M.J. 28 (1982).

[147] See, e.g., Benge v. Superior Court, 131 Cal.App.3d 336, 344‑345 (1982).

[148] People v. Dennis, 177 Cal.App.3d 863 (1986).