Untitled California Attorney General Opinion ( 1988 )


Menu:
  •              TO BE PUBLISHED IN THE OFFICIAL REPORTS
    OFFICE OF THE ATTORNEY GENERAL
    State of California
    JOHN K. VAN DE KAMP
    Attorney General
    ------------------------------
    OPINION                 :
    :   No. 87-704
    of                    :
    :   January 14, 1988
    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 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