When you speak to a lawyer, you expect your words to remain private—and in most cases, the law agrees. This protection is known as attorney–client privilege, and in California, it is specifically governed by Evidence Code § 954. This privilege ensures that clients can speak openly with their legal counsel without fear that their conversations will later be used against them in court. But while the privilege is powerful, it has important limits, conditions, and exceptions that every individual and business should understand. Whether you’re seeking legal advice, or considering representation, knowing your rights and responsibilities under this law can help you protect sensitive communications and make more informed decisions.
What Is Attorney–Client Privilege?
Attorney–client privilege is a legal rule that keeps confidential communications between a client and their attorney protected from disclosure. It applies whether the client is an individual, a business, or another entity. In California, the privilege allows a client to refuse to disclose—and to prevent others from disclosing—confidential communications with their lawyer. The purpose is to allow clients to speak freely and provide their attorneys with all relevant information without worrying that the information could later be exposed in legal proceedings.
What Does Evidence Code § 954 Say?
California Evidence Code § 954 gives clients the legal right to keep communications with their attorneys private. The law states that the client holds the privilege, and as such, can decide whether to disclose or protect their communications. An attorney may also assert the privilege on behalf of the client, especially if the client is not present or capable of doing so. However, the privilege only applies when certain conditions are met, and it can be lost or waived in some cases.
When Does the Privilege Apply?
For attorney–client privilege to apply under California law, four key elements must be present:
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A Legitimate Attorney–Client Relationship
The privilege only applies if the communication occurs within the scope of a professional relationship between an attorney and a client. This includes situations where someone is consulting with a lawyer for legal advice—even before formally hiring them. -
The Communication Must Be Confidential
The information shared must be intended to remain private. If someone else is present during the conversation (and they are not essential to the legal consultation), the communication may lose its privileged status. -
The Communication Must Be for Legal Advice
Discussions must be related to obtaining or providing legal advice. Business advice, casual conversations, or communications unrelated to legal representation are not covered. -
The Privilege Must Be Claimed
The client—or someone authorized—must take action to assert the privilege when disclosure is requested. Failure to do so may result in waiver of the protection.
Who Holds the Privilege?
Under California law, it is the client who holds the privilege, not the attorney. This means only the client can choose to waive it. The attorney can act to protect the privilege on behalf of the client, but they cannot waive it without the client’s consent. In cases where the client is a business, organization, or group, an authorized representative usually exercises this right.
How Long Does the Privilege Last?
Attorney–client privilege in California does not end when the case ends. In fact, it continues even after the attorney–client relationship has been terminated. The protection may even extend after the client’s death, depending on the nature of the communication and other legal considerations. This makes the privilege one of the most enduring legal rights available to clients.
Exceptions to Attorney–Client Privilege
While California law strongly protects attorney–client communications, there are important exceptions where the privilege does not apply:
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Crime or Fraud
Communications made to plan or commit a crime or fraud are not protected. If a client uses an attorney to further illegal activity, those communications lose their privileged status. -
Preventing Death or Serious Injury
If an attorney reasonably believes that disclosure is necessary to prevent death or serious bodily harm, they may be permitted or required to break confidentiality. -
Legal Disputes Between Client and Lawyer
In lawsuits where a client sues their attorney for malpractice or the attorney sues for unpaid fees, communications relevant to the dispute may be disclosed. -
Joint Clients
When two or more clients are represented by the same attorney, communications shared in the presence of all parties may not remain confidential if those clients later become adversaries. -
Waiver of Privilege
If the client voluntarily shares the content of a privileged communication with someone outside the attorney–client relationship, the privilege may be considered waived. Even accidental disclosures—like forwarding a legal email to a friend—can risk waiver if not handled properly.
Common Misunderstandings
Many people believe that everything they say to a lawyer is automatically protected. In reality, attorney–client privilege only applies when specific conditions are met. For example, talking to a lawyer in a crowded room, copying unrelated third parties on an email, or discussing non-legal matters may place the communication outside the scope of the privilege. Similarly, the privilege protects communications, not underlying facts. If you tell your lawyer about something you did, the conversation may be protected—but the fact that you did it is not.
Protecting the Privilege: Best Practices
To preserve attorney–client privilege:
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Always communicate with your attorney in private or through secure channels.
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Avoid copying third parties on emails to your lawyer.
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Don’t share legal advice you’ve received with friends, family, or coworkers.
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Clearly state when you are seeking legal advice.
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Mark communications as “confidential” when appropriate.
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If you’re involved in a legal dispute, work with your attorney to assert privilege promptly when needed.
Attorneys also have a responsibility to guide their clients in maintaining privilege and to take reasonable precautions to protect it during litigation, investigations, and negotiations.
Final Thoughts
Attorney–client privilege is a foundational legal principle that promotes trust and candor between lawyers and clients. While California Evidence § Code 954 gives clients strong protection over their communications, understanding the limits and exceptions of the privilege is critical. Missteps—such as discussing legal matters in public or failing to claim privilege—can undermine these protections. If you’re involved in a legal matter and have concerns about the confidentiality of your communications, you don’t have to navigate this complex area alone.
Talk to a Trusted California Attorney Today
At Southwest Legal, we understand how crucial your privacy and legal rights are. Our experienced legal team is here to advise you, represent you, and ensure that your communications are protected under California law. Whether you’re seeking advice, or unsure if your conversations are covered by privilege, we’ll help you safeguard your interests every step of the way. Contact us today to schedule a confidential consultation and get the legal clarity you deserve.
