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SB-774 Lawyer-client privilege: Department of Fair Employment and Housing.(2021-2022)

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Date Published: 09/03/2021 09:00 PM
SB774:v96#DOCUMENT

Amended  IN  Assembly  September 03, 2021
Amended  IN  Assembly  July 14, 2021
Amended  IN  Senate  March 03, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 774


Introduced by Senator Hertzberg

February 19, 2021


An act to add and repeal Section 954.1 952.1 to the Evidence Code, relating to evidence.


LEGISLATIVE COUNSEL'S DIGEST


SB 774, as amended, Hertzberg. Lawyer-client privilege: Department of Fair Employment and Housing.
Existing law establishes the lawyer-client evidentiary privilege in court proceedings, whereby the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer.
The California Fair Employment and Housing Act prohibits an employer from discriminating against an employee on account of certain characteristics. The act authorizes a person alleging a violation of specified provisions of the act to submit a complaint to the Department of Fair Employment and Housing, and requires the department to take actions to investigate that complaint.
This bill would specify that the lawyer-client privilege applies to confidential communications between a lawyer of the Department of Fair Employment and Housing and a person who files a complaint with the department or another aggrieved person on whose behalf a complaint is filed. The bill would require a complainant or aggrieved person to assert the privilege on behalf of the department, unless the department objects. The bill would prohibit waiver of the privilege without the written consent of the department. The bill would state that these provisions are declarative of existing law and apply retroactively. department. The bill would prohibit the complainant or aggrieved person from disclosing confidential information transmitted between a department lawyer and a complainant or aggrieved person over the objection of the department, except as provided. The bill would prohibit the department from disclosing confidential information transmitted from a complainant or aggrieved person to a department lawyer that would reveal the identity of the complainant or aggrieved person, except as provided. The bill would repeal its provisions on January 1, 2027.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 952.1 is added to the Evidence Code, to read:

952.1.
 (a) For purposes of this section, “department” and “client” mean the Department of Fair Employment and Housing.
(b) As used in this article, “confidential communication between client and lawyer” includes information transmitted between the department and its lawyers in the course of that relationship and in confidence by a means which, so far as the department is aware, discloses the information to no third persons other than those who are present to further the interest of the department in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, including, but not limited to, confidential information transmitted between a department lawyer and a complainant who files a complaint with the department or other person aggrieved by alleged discriminatory practices or other violations on whose behalf a complaint is filed, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.
(c) (1) Notwithstanding Section 954, a complainant or aggrieved person shall assert the privilege over confidential information transmitted between a department lawyer and a complainant or aggrieved person. Subject to paragraph 2, the complainant or aggrieved person may not disclose the confidential information over the objection of the department unless the department has been given advance reasonable notice of at least 30 days, an opportunity to object, and a court finds that the interests of the complainant or aggrieved person in disclosure outweigh the department’s interest in maintaining the confidentiality of the information and that the disclosure is not prevented by any other law, privilege, or doctrine, including, but not limited to, the attorney work product doctrine.
(2) The complainant or aggrieved person need not provide the department with notice of disclosure of confidential information transmitted between a department lawyer and the complainant or aggrieved person if disclosure of the confidential information is made to any government entity that has oversight over the department or its attorneys’ conduct.
(3) The department may not disclose any confidential information transmitted from a complainant or aggrieved person to a department lawyer that would reveal the identity of the complainant or aggrieved person unless the complainant or aggrieved person consents; disclosure is required by law, court order, or a work-sharing agreement with another government agency; or the department consents to disclosure as part of an enforcement action, including, but not limited to, an investigation or civil action, of the department or other government agency.
(d) Subdivision (b) of this section is declarative of, and clarifies, existing law. This section applies retroactively.
(e) This section shall remain in effect only until January 1, 2027, and as of that date is repealed.

SECTION 1.Section 954.1 is added to the Evidence Code, to read:
954.1.

(a)For purposes of this section, “department” means the Department of Fair Employment and Housing.

(b)Subject to Section 912 and except as otherwise provided in this article, the lawyer-client privilege applies to confidential communications between a lawyer of the department and a complainant who files a complaint with the department or another person aggrieved by alleged discriminatory practices on whose behalf a complaint is filed. The department is the holder of the privilege and may claim the privilege.

(c)(1)Pursuant to subdivision (b) of Section 954 and subject to paragraph (2) of this subdivision, a complainant or aggrieved party shall assert the privilege described in subdivision (b) on behalf of the department, but shall not assert the privilege over the objection of the department.

(2)The privilege described in subdivision (b) shall not be waived without the written consent of the department.

(d)(1)The purpose of this section is to protect the confidentiality of communications between the department’s lawyers and complainants or other aggrieved persons to further the department’s enforcement of civil rights laws. Confidentiality of such communications is reasonably necessary for the department to conduct its investigations and prosecutions under state and federal antidiscrimination laws, vigorously enforce such laws on behalf of the department and the public interest, and remedy, deter, and prevent violation of such laws, and for the department’s lawyers to represent the department. This section does not establish a fiduciary, attorney-client relationship between a department lawyer and a complainant or aggrieved person. It does not limit the department’s own rights under this article, its independent authority over how it receives, investigates, conciliates, mediates, or prosecutes complaints, or the effective remedies available for violations of state and federal civil rights laws.

(2)This section is declarative of, and clarifies, existing law and applies retroactively.