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Privileges of Witnesses

Certain privileges of witnesses are applied in administrative investigations.  One such privilege is the attorney-client privilege.  In S. Cal. Gas Co. v. Public Utils. Com, 50 Cal. 3d 31 (Cal. 1990), the court held that the attorney-client privilege is applied in administrative proceedings.  Further, the court observed that “when an agency has the power to compel evidence, its power is tempered by the attorney-client privilege, unless there is unambiguous statutory directive to the contrary”.  Thus, an administrative agency’s power to compel evidence is subject to the statutory limitation of the attorney-client privilege.

The attorney-client privilege applies only when it is necessary to achieve the purpose of the privilege[i].  In Fisher v. United States, 425 U.S. 391 (U.S. 1976), the court held that the attorney-client privilege protects only those disclosures that are necessary to obtain informed legal advice, which may not be made if the privilege is not there.  Further, the attorney client privilege does not extend to non privileged and pre-existing documents which can be obtained by court process from the client.  Thus, if pre-existing documents are handed over by the client to the attorney to obtain more informed legal advice, such documents may be obtained from the attorney by court process.

[i] Fisher v. United States, 425 U.S. 391 (U.S. 1976)

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