Amended in Assembly April 9, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 267

Introduced by Assembly Member Chau

February 7, 2013

An act to amend Section 912 of begin delete the Evidence Code end delete , and to add Article 3.5 (commencing with Section begin delete 963) end delete begin insert 965) end insert to Chapter 4 of Division 8 of begin insert , end insert the Evidence Code, relating to evidentiary privileges.

LEGISLATIVE COUNSEL’S DIGEST

AB 267, as amended, Chau. Evidentiary privileges: lawyer referral service-client privilege.

Existing law governs the admissibility of evidence in court proceedings and generally provides a privilege as to communications made in the course of the attorney-client relationship, as specified. Under existing law, the right of any person to claim certain evidentiary privileges, including the lawyer-client privilege, is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to a disclosure made by anyone.

Existing law prohibits an individual or entity from operating a lawyer referral service unless that service meets specified requirements, including registration with the State Bar of California. Existing law requires the State Bar, with the approval of the Supreme Court, to formulate and enforce rules and regulations relating to lawyer referral services.

This bill would provide that a person who consults a lawyer referral service, as defined, for the purpose of retaining a lawyer or securing legal advice has a privilege to refuse to disclose, and to prevent begin delete the lawyer referral service end delete begin insert another end insert from disclosing, a confidential communication between the client and the lawyer referral service begin insert if the privilege is claimed by a specified person or entity. The bill would establish the circumstances in which the privilege does not apply end insert . The bill would further provide that the lawyer referral service-client privilege may be waived in accordance with existing law.

begin insert

The California Constitution requires that a statute that would exclude relevant evidence in any criminal proceeding be enacted by a 2⁄3 vote.

end insert begin insert

Because this bill would exclude certain communications between a client and a lawyer referral service in criminal proceedings, the bill would require a 2⁄3 vote.

end insert

Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 912 of the Evidence Code is amended to
read:

912.  

(a) Except as otherwise provided in this section, the right
of any person to claim a privilege provided by Section 954
(lawyer-client privilege), 966 (lawyer referral service-client
privilege), 980 (privilege for confidential marital communications),
994 (physician-patient privilege), 1014 (psychotherapist-patient
privilege), 1033 (privilege of penitent), 1034 (privilege of clergy
member), 1035.8 (sexual assault counselor-victim privilege), or
1037.5 (domestic violence counselor-victim privilege) is waived
with respect to a communication protected by the privilege if any
holder of the privilege, without coercion, has disclosed a significant
part of the communication or has consented to disclosure made by
anyone. Consent to disclosure is manifested by any statement or
other conduct of the holder of the privilege indicating consent to
the disclosure, including failure to claim the privilege in any
proceeding in which the holder has the legal standing and
opportunity to claim the privilege.

(b) Where two or more persons are joint holders of a privilege
provided by Section 954 (lawyer-client privilege), 966 (lawyer
referral service-client privilege), 994 (physician-patient privilege),
1014 (psychotherapist-patient privilege), 1035.8 (sexual assault
counselor-victim privilege), or 1037.5 (domestic violence
counselor-victim privilege), a waiver of the right of a particular
joint holder of the privilege to claim the privilege does not affect
the right of another joint holder to claim the privilege. In the case
of the privilege provided by Section 980 (privilege for confidential
marital communications), a waiver of the right of one spouse to
claim the privilege does not affect the right of the other spouse to
claim the privilege.

(c) A disclosure that is itself privileged is not a waiver of any
privilege.

(d) A disclosure in confidence of a communication that is
protected by a privilege provided by Section 954 (lawyer-client
privilege), 966 (lawyer referral service-client privilege), 994
(physician-patient privilege), 1014 (psychotherapist-patient
privilege), 1035.8 (sexual assault counselor-victim privilege), or
1037.5 (domestic violence counselor-victim privilege), when
disclosure is reasonably necessary for the accomplishment of the
purpose for which the lawyer, lawyer referral service, physician,
psychotherapist, sexual assault counselor, or domestic violence
counselor was consulted, is not a waiver of the privilege.

SEC. 2.  

Article 3.5 (commencing with Section begin delete 963) end delete begin insert 965) end insert is
added to Chapter 4 of Division 8 of the Evidence Code, to read:

 

Article 3.5.  Lawyer Referral Service-Client Privilege

 

begin delete

963.  

As used in this article, “lawyer referral service” means a
lawyer referral service certified under and operating in compliance
with Section 6155 of the Business and Professions Code and the
minimum standards, rules, and regulations of the State Bar
governing lawyer referral services.

end delete begin delete

964.  

As used in this article, “client” means a person who
consults a lawyer referral service for the purpose of retaining, or
securing legal services or advice from, a lawyer in his or her
professional capacity.

end delete begin delete

965.  

As used in this article, “confidential communication
between client and lawyer referral service” means information
transmitted between a client and lawyer referral service in the
course of that relationship and in confidence by a means which,
so far as the client is aware, does not disclose the information to
third persons.

end delete begin insert

begin insert 965. end insert   

For purposes of this article, the following terms have the
following meanings:

(a) “Client” means a person who, directly or through an
authorized representative, consults a lawyer referral service for
the purpose of retaining, or securing legal services or advice from,
a lawyer in his or her professional capacity, and includes an
incompetent who consults the lawyer referral service himself or
herself or whose guardian or conservator consults the lawyer
referral service on his or her behalf.

(b) “Confidential communication between client and lawyer
referral service” means information transmitted between a client
and a lawyer referral service in the course of that relationship and
in confidence by a means that, so far as the client is aware, does
not disclose the information to third persons other than those who
are present to further the interests of the client in the consultation
or those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the
purpose for which the lawyer referral service is consulted.

(c) “Holder of the privilege” means any of the following:

(1) The client, if the client has no guardian or conservator.

(2) A guardian or conservator of the client, if the client has a
guardian or conservator.

(3) The personal representative of the client if the client is dead,
including a personal representative appointed pursuant to Section
12252 of the Probate Code.

(4) A successor, assign, trustee in dissolution, or any similar
representative of a firm, association, organization, partnership,
business trust, corporation, or public entity that is no longer in
existence.

(d) “Lawyer referral service” means a lawyer referral service
certified under, and operating in compliance with, Section 6155
of the Business and Professions Code or an enterprise reasonably
believed by the client to be a lawyer referral service certified under,
and operating in compliance with, Section 6155 of the Business
and Professions Code.

end insert

966.  

begin insert (a) end insert begin insert   end insert Subject to Section 912 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 begin delete the lawyer referral
service end delete begin insert another end insert from disclosing, a confidential communication
between client and lawyer referral service begin delete . end delete begin insert if the privilege is
claimed by any of the following: end insert

begin insert

(1) The holder of the privilege.

end insert begin insert

(2) A person who is authorized to claim the privilege by the
holder of the privilege.

end insert begin insert

(3) The lawyer referral service or a staff person thereof, but the
lawyer referral service or a staff person thereof may not claim the
privilege if there is no holder of the privilege in existence or if the
lawyer referral service or a staff person thereof is otherwise
instructed by a person authorized to permit disclosure.

end insert begin insert

(b) The relationship of lawyer referral service and client shall
exist between a lawyer referral service, as defined in Section 965,
and the persons to whom it renders services, as well as between
such persons and anyone employed by the lawyer referral service
to render services to such persons. The word “persons” as used
in this subdivision includes partnerships, corporations, limited
liability companies, associations, and other groups and entities.

end insert

967.  

A lawyer referral service that has received or made a
communication subject to the privilege under this article shall
claim the privilege if the communication is sought to be disclosed
and the client has not consented to the disclosure.

begin delete

968.  

There is no privilege under this article as to a
communication relevant to an issue of breach, by the lawyer referral
service or by the client, of a duty arising out of the relationship.

end delete begin insert

begin insert 968. end insert   

There is no privilege under this article if either of the
following applies:

(a) The services of the lawyer referral service were sought or
obtained to enable or aid anyone to commit or plan to commit a
crime or a fraud.

(b) A staff person of the lawyer referral service who receives a
confidential communication in processing a request for legal
assistance reasonably believes that disclosure of the confidential
communication is necessary to prevent a criminal act that the staff
person of the lawyer referral service reasonably believes is likely
to result in the death of, or substantial bodily harm to, an
individual.

end insert

---

CORRECTIONS:

Digest--Page 2.

Digest--Vote key line.

---