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The county is correct in asserting that an investigation it conducted doesn’t have to be released to the public because it is a confidential attorney-client communication, county Counsel John Sansone just wrote to me in an e-mail message.
The county has argued that a report into the investigation of California Children’s Services, a program that provides wheelchairs and other devices to children with disabilities, doesn’t have to be made public because the report was sent to county attorneys and is therefore confidential attorney-client communications, which are exempt from disclosure under the California Public Records Act.
A source of mine questioned that assertion, arguing that the investigation was not privileged because:
California state law protects the attorney’s confidential communications pertaining only to the subject of communications in direct relation to a pending legal proceeding.
Sansone disagrees, he writes:
This is not at all accurate. The law and the courts have clearly recognized for centuries that the confidentiality of attorney communications, both in terms of the attorney-client privilege and the attorney-work product privilege, are protected under circumstances that go well beyond a pending legal proceeding.
It goes without saying that even laypersons know that when a client goes to his/her attorney for legal advice or requests the attorney to investigate a matter with legal ramifications, unrelated to any pending legal proceeding, the communications with the client and the work product related to the attorney’s work for that client, are protected by long standing legally recognized confidential privileges.
For you to assert otherwise through an anonymous attorney’s comments is unfortunately wrong and does a disservice to your readers.
I called public records law expert and open government advocate Terry Franke for some insight on this matter.
Franke agreed with Sansone. He said that when the county investigators compiled the report into the allegations and sent it to their attorneys for review, they were essentially acting as a client asking its lawyer for advice.
The seeking of advice doesn’t have to be tied to a “pending legal proceeding,” Franke said. When a client communicates with his or her lawyer for the purpose of getting legal advice, that communication is privileged whether or not there’s already legal action in motion, Franke said.