Julie Swain

Julie Swain
Criminal Defense Lawyer Julie Swain

Tuesday, March 8, 2011

Subpoenas and Attorney-Client Privilege

In some proceedings, a party may seek to obtain an attorney’s legal files through the use of a subpoena duces tecum. Requests seeking confidential communications between the client and attorney or attorney work product should be vigorously challenged. Even if clients are unaware of the request, each client is entitled to the protection of the attorney client privilege. As a result, not only is an attorney prohibited from disclosing the contents of client files, the attorney must object to the request. A Motion to Quash is the proper response to a request for privileged material.

“The attorney-client privilege is one of the oldest recognized privileges for confidential communications” (Swidler & Berlin v. United States (1998) 524 U.S. 399, 403) and is “one which our judicial system has carefully safeguarded with only a few specific exceptions” (Mitchell v. Superior Court (1984) 37 Cal. 3d 591). (People v. Gurule (2002) 28 Cal. 4th 557, 594.) 

In California, Business and Professions Code section 6068(e)(1) requires an attorney “maintain inviolate the confidence, and at every peril to himself or herself, preserve the secrets, of his or her client.” The duty to maintain confidences and secrets even outlasts the attorney’s employment. (People v. Singh (1932) 123 Cal.App. 365, 368.)

By making an objection and motion to quash the subpoena, an attorney is fulfilling her duty to claim her clients’ privileges. In addition, Evidence Code section 955 requires the attorney to claim the privilege. 
As long as there is a holder of the privilege in existence at the time disclosure is sought, the attorney has a duty to exercise the attorney-client privilege unless the holder of the privilege instructs him not to do so.
Client confidences are presumed privileged and California Evidence Code section 917 requires the person seeking the information to prove there is no privilege. In other words, the party seeking the records must overcome the presumption that the records are confidential.

When the court is asked to rule on a claim of privilege, the disclosure of the information claimed to be privileged is not required. The court can simply conduct a closed hearing. (Cal. Evid. Code sec. 915, subd. (a)(b).)

At all times, an attorney should actively seek to protect client confidences and prevent the disclosure of privileged material.

Friday, March 4, 2011

California Civil Harassment Court Orders

Civil Harassment Orders, commonly called “Restraining Orders,” are available to stop harassment in a variety of situations. At times, one party to a Family Law case, Child Custody dispute or even a Small Claims matter feels that the other party is engaging in harassing conduct.

California Code of Civil Procedure Section 527.6 allows anyone who has suffered harassment to seek application for a temporary restraining order and an injunction prohibiting future harassment. “Harassment” can include: unlawful violence, threats of violence, or a “knowing and willful course of conduct…that seriously alarms, annoys, or harasses” a person. In court, the person applying for the order must show that the conduct would cause a reasonable person substantial emotional distress and actually caused substantial emotional distress. Witness statements and records of harassing contacts, such as copies of email, text and voice messages often support the application.

An application can be filed by the person seeking the order, or by an attorney. However, a third party, usually the Sheriff’s Department or other law enforcement agency must serve the application for a Civil Harassment Order on the defendant.

Anyone ordered to comply with a Civil Harassment Order must surrender any firearms and is prohibited from owning or possessing firearms. Further, once a permanent restraining order is in place, a violation of the order is reportable to law enforcement for investigation and punishable as a crime.

Julie Anne Swain

California Expungement Under Penal Code section 1203.4

Criminal Defense lawyers are often asked: How do I get my criminal record dismissed or sealed?

While California Penal Code section 1203.4 provides the means to obtain a dismissal of a criminal conviction, the ultimate consequences of the dismissal are often misunderstood.

Can a dismissed conviction be used in a later criminal case?

When the court dismisses the accusations against the defendant, the defendant is relieved of many of the penalties suffered as a result of the original conviction. However, the conviction is not dismissed for all purposes and can be used against the defendant in future criminal cases as if it was never dismissed.

For example, a conviction resulting in a driver’s license suspension will still be considered for any future suspensions of driving privileges. In addition, convictions for serious or violent felonies (“Three Strikes” offenses) dismissed under section 1203.4 may still be alleged as prior convictions in later criminal proceedings. Further, the relief provided under this section does not restore a convicted felon’s right to own a firearm.

What about employment?

Convictions dismissed under this section do not have to be reported to potential employers, however, any thorough background check will likely uncover the court records. On the other hand, when completing applications for state licensing or public office, the dismissed conviction must be disclosed.

Why would I try to get my conviction dismissed?

First, Expungement is an important part of the rehabilitation process. Second, a potential employer may appreciate the effort and follow-through needed to get a criminal conviction dismissed. Finally, anyone who obtains a dismissal of a criminal conviction may feel better about the criminal process as a whole.

Julie Anne Swain