Evidence Code Section 962 - The Joint Client Exception to Attorney Client Privilege

Thurman's Tips

THURMAN's TIPS: Here is a little tidbit of information about the application of attorney-client privileges in divorce, where parties previously jointly retained an attorney to advise them about important topics of common interest, before separation and the ensuing divorce. How to get into evidence what either spouse said to that attorney - i.e., my mother's investment was NOT a gift but the spouse never took claimed it was a gift at the time.

When spouses have hired a lawyer on a matter of common interest and either makes comments to that attorney in the course of that representation (whether separately or together in one session), e.g., to form a company that one claims is now community property, there is no attorney-client privilege objection and so the joint attorney can testify as to what either said to him/her! The privilege that would otherwise silence the attorney about those crucial admissions does not exist, by operation of law, per section 962.

I promise you that almost nobody, including judges, know about this joint-client exception to the rule that would otherwise preclude cross-examination of that attorney in a divorce case or other family law or civil proceeding, involving the same parties in litigation between them - like a divorce - at a later time! (I bumped into it doing my own due diligence in a recent trial). This situation often arises in high asset cases, involving limited liability companies, operating agreements, and business entities that are created before separation.

Be prepared to brief your family court bench officer on this in advance about this privilege waiver, so that they can study the question before your trial or hearing because they will resist your argument until they are shown that the exception does apply. It goes against common wisdom about the sanctity of attorney client privileges (before the Trump era, neh?)

This attorney-client privilege exception also applies to "confidential" communications with other professionals like those with doctors, priests, etc. Look at the statute if privileges seem to foreclose cross-examination of the professional, because indeed the testimony of that professional may be fully admissible!



Evidence Code Section 962

Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients (or his successor in interest) and another of such clients (or his successor in interest).

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