Recent CA appellate case holds that all attorney-client confidential communications are presumed privileged

In a recent California 4th Appellate District case, DP Pham LLC v. C. Tucker Cheadle as administrator, etc., the Court of Appeals dealt with a matter involving attorney-client privilege.

The Court of Appeals made clear that “the attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit.”  The Appellate Court went on to determine that the privilege, as a matter of law, attaches to all confidential communications that exist between an attorney and a client no matter whether the information communicated is in fact privileged.   Accordingly, it is neither necessary nor appropriate to review a communication between a client and lawyer to determine whether the attorney-client privilege protects it.  The fact that a client and attorney engage in confidential communications makes the communications privileged. 

The Court of Appeals held that once a party makes a prima facie showing that a confidential communication was made between a client and attorney, then it is presumed the privilege applies.  The burden to the opponent to establish waiver, an exception, or that the privilege does not apply and the opponent cannot rely upon the content of the communication to prove its case.