BILL NUMBER: AB 267 CHAPTERED
BILL TEXT
CHAPTER 123
FILED WITH SECRETARY OF STATE AUGUST 19, 2013
APPROVED BY GOVERNOR AUGUST 19, 2013
PASSED THE SENATE JULY 8, 2013
PASSED THE ASSEMBLY APRIL 18, 2013
AMENDED IN ASSEMBLY APRIL 9, 2013
INTRODUCED BY Assembly Member Chau
FEBRUARY 7, 2013
An act to amend Section 912 of, and to add Article 3.5 (commencing
with Section 965) to Chapter 4 of Division 8 of, the Evidence Code,
relating to evidentiary privileges.
LEGISLATIVE COUNSEL'S DIGEST
AB 267, 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 another from disclosing, a confidential communication
between the client and the lawyer referral service if the privilege
is claimed by a specified person or entity. The bill would establish
the circumstances in which the privilege does not apply. The bill
would further provide that the lawyer referral service-client
privilege may be waived in accordance with existing law.
The California Constitution requires that a statute that would
exclude relevant evidence in any criminal proceeding be enacted by a
2/3 vote.
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.
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 965) is added to
Chapter 4 of Division 8 of the Evidence Code, to read:
Article 3.5. Lawyer Referral Service-Client Privilege
965. 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.
966. (a) 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 another from disclosing, a
confidential communication between client and lawyer referral service
if the privilege is claimed by any of the following:
(1) The holder of the privilege.
(2) A person who is authorized to claim the privilege by the
holder of the privilege.
(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.
(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.
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.
968. 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.