People ex rel. Lockyer v. Superior Court

Supplemental briefs responsive to the above questions have been received and oral argument has been waived. The AG’s petition essentially requests this court to grant a writ of mandate and prohibition ordering the superior court “to surrender all of the documents seized pursuant to the search warrants to the [AG] and void the May 8, 2000 Order appointing a special master to review the contents of the [DA’s] computer back-up tapes and for any and all further orders in the interest of justice.”

Discussion

The AG contends it is entitled to writ relief because the court abused its discretion by upholding Longanbach’s claims of privileges; that it erred as a matter of law in ordering returned documents pertaining to a criminal prosecution to Longanbach, a former prosecutor who is under criminal investigation, based on his invocation of attorney client and/or work product privileges; in erroneously permitting Longanbach, an attorney suspected of criminal activity, to employ the special master provisions of section 1524, subdivision (c) for his own protection; and in permitting the invocation of privileges in this case to thwart the AG from reviewing materials lawfully seized pursuant to a constitutionally valid search warrant. Essentially, these assertions present two questions: (1) whether a public prosecuting attorney, who is the subject of an ongoing criminal investigation, may use claims of attorney-client privilege, work product protection and privacy to withhold from the investigating authorities review of documents and material seized pursuant to a validly issued and executed search warrant; and (2) whether such suspect public prosecutor is entitled to evidentiary protection similar to that provided by the special master provisions of section 1524, subdivision (c).

Before we can answer these questions, we must address several threshold matters, including the nature of the office of a public prosecuting attorney, the nature of privileges and to what extent a public prosecutor can be a holder of the attorney-client privilege, the work product protection, and a claim of privacy.

As this court noted in People v. Terry (1994) 30 Cal.App.4th 97 [ 35 Cal.Rptr.2d 729 ]: “The district attorney is constituted by statute to conduct

The attorney-client privilege and the work product protection doctrine are both statutory creations. (§ 1054.6; Code Civ. Proc., § 2018; Evid. Code, § 954.) Evidence Code section 954 provides that “a client holds a privilege to prevent the disclosure of confidential communications between client and lawyer. [A] ‘client’ includes a person who ‘consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity’ [citation], while ‘confidential communications’ include ‘information transmitted between a client and his or her lawyer in the course of that relationship and in confidence’ [citation].” (People v. Gionis (1995) 9 Cal.4th 1196 , 1207 [ 40 Cal.Rptr.2d 456 , 892 P.2d 1199 ].)

Although the attorney-client privilege is not constitutionally based, it is the oldest recognized confidential communications privilege. (Sullivan v. Superior Court (1972) 29 Cal.App.3d 64 , 71 [ 105 Cal.Rptr. 241 ].) It is grounded on public policy considerations and “is in furtherance of the proper and orderly functioning of our judicial system, which necessarily depends on the confidential relationship between the attorney and the client.” (People v. Gionis, supra, 9 Cal.4th at p. 1207.) The purpose of such evidentiary privilege is to safeguard the confidential relationship between a client and counsel so as to promote full and open disclosure of facts and tactics surrounding the case for which the relationship exists. (People v. Flores (1977) 71 Cal.App.3d 559 [ 139 Cal.Rptr. 546 ].) In enacting such privilege, the Legislature recognized that “ ‘the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.’ ” (Mitchell v. Superior Court (1984) 37 Cal.3d 591 , 600 [ 208 Cal.Rptr. 886 , 691 P.2d 642 ], quoting City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227 , 235 [ 231 P.2d 26 , 25 A.L.R.2d 1418 ].) However, the privilege is not absolute and a person claiming an attorney-client

Moreover, while an individual’s constitutional right of privacy (Cal. Const., art. I, § 1 [the California right is broader than the federal constitutional right (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123 , 130, fn. 3 [ 164 Cal.Rptr. 539 , 610 P.2d 436 , 12 A.L.R.4th 219 ])]) is properly considered by a court before dissemination of information asserted confidential (see Britt v. Superior Court (1978) 20 Cal.3d 844 [ 143 Cal.Rptr. 695 , 574 P.2d 766 ]), no invasion of such right will be found absent a legally protected privacy interest, a reasonable expectation of privacy under the circumstances and conduct constituting a serious invasion of such privacy. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 , 35-37 [ 26 Cal.Rptr.2d 834 , 865 P.2d 633 ].) “Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).” (Id. at p. 35.) An invasion of autonomy privacy may be overcome by a showing of a countervailing “compelling interest,” while general balancing tests are used when a privacy interest is in bona fide dispute. (Id. at p. 34.) As noted above, because of the nature of the public officer positions occupied by the DA and a DDA, it would be difficult to find that a DDA has an individual legally recognizable privacy interest which can be claimed in his or her conduct of prosecutions for the DA or in any use he or she may make of government personnel or property.

Applying the above preliminary observations, we can only conclude that Longanbach, as a DDA, who was precluded from practicing law

This conclusion, however, does not end our inquiry as to the propriety of the court’s proceedings under section 1524, subdivision (c). As our extensive legislative background in PSC Geothermal Services Co. v. Superior Court, supra, 25 Cal.App.4th 1697 (Geothermal) shows, section 1524 was amended in 1978 and 1979 in response to several broad searches of attorneys’ offices and the United States Supreme Court’s decision in Zurcher v. Stanford Daily, supra, 436 U.S. 547 , which allowed searches of newspaper offices containing privileged information. (Geothermal, supra, at pp. 1702-1707.) As so amended, section 1524 provides in pertinent part: “[N]o search warrant shall issue for any documentary evidence in the possession or under the control of any person, who is a lawyer . . . , a physician . . . , a psychotherapist. . . , or a clergyman . . . , and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless [certain procedures have] been complied with . . . .” (Id., subd. (c).) These procedures require that the court appoint a “special master,” who is defined by the statute, to accompany the person serving the warrant. (Id., subds. (c)(1), (d).) The special master is to “inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested.” (Id., subd. (c)(1).) If the party fails to do so, the special master is authorized to conduct the warranted search. (Ibid.) If the served party “states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.” (§ 1524, subd. (c)(2).) At such hearing, the party served with the search warrant “shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law.” (Ibid.) As we noted in Geothermal, Evidence Code section 915 was amended in 1979 to provide that “ ‘in any hearing conducted' pursuant to subdivision (c) of Section 1524 . . . [the special master provisions] in which a claim of privilege is made and the court determines that there is no other feasible means to rule on the validity of such claim other than to require disclosure, the court shall proceed in accordance with subdivision (b),’ i.e., hold an in camera hearing. [Citations.]” (Geothermal, at p. 1707, fn. 6.)

We also recognized in Geothermal that the execution of a search warrant is not beyond the court’s control, that it is within the discretion of a court to

In arriving at such conclusion we specifically noted that: “[T]he search [involved there, where a search warrant issued to seize documents from the offices of environmental consultants hired by a law firm to assist in defending various lawsuits,] was not a typical search for evidence and the fruits of criminal activity. Nor was it a search limited to the ongoing investigation of possible wrongdoing. Rather, it appears to be a search designed, at least in part, to penetrate the defense theories of the case by obtaining communications among possible defendants, their attorneys and consultants. Unlike other searches, this search pits a defendant’s Sixth Amendment protections against the prosecution’s pursuit of a criminal investigation. The District Attorney and his investigators knew the materials they were seeking included privileged documents and work product. They invoked the power of the court to seize the documents in question; the items were seized pursuant to a search warrant, [¶] The purpose of the constitutional requirement of a search warrant is to interpose a magistrate between the police and the person who is the subject of the search. Review by a magistrate provides ‘an informed and deliberate review of the circumstances by one who is removed from ... the often competitive enterprise of ferreting out crime.’ [Citation.] If probable cause to search is established, then the magistrate should issue the warrant and allow the search to proceed.” (Geothermal, supra, 25 Cal.App.4th at p. 1710.)

To meet such conflicting responsibilities under the Fourth Amendment to issue search warrants and under the Sixth Amendment “to protect the right to counsel,” we reasoned the court could conduct “an in camera review of materials seized under the search warrant to determine whether the materials are covered by the attorney-client or work product privileges and therefore should not be disclosed to the government.” (Geothermal, supra, 25 Cal.App.4th at p. 1711.)

The proceeding we are presented with here, however, is vastly different from the one in Geothermal. Unlike the search in Geothermal, the ones here were not directed at obtaining privileged materials, but were

Here, after finding probable cause to issue search warrants for the DA’s office and Longanbach’s home, the court appointed special masters to oversee each search. Longanbach made claims of privilege through his attorneys at each location to certain materials seized pursuant to the warrants that were then sealed and taken to the court. The court held two ex parte in camera hearings before ruling on Longanbach’s privilege claims. Because Longanbach is suspected of criminal conduct, i.e., he is the target of the criminal investigation for which the search warrants had issued, the special master provision of section 1524 does not apply to him and should not have been used for the search of his home. (Geothermal, supra, 25 Cal.App.4th at p. 1702, fn. 4; People v. Superior Court (Bauman & Rose), supra, 37 Cal.App.4th at p. 1764.)

In addition, although a special master was properly appointed for search of the DA’s office, the special master was required by the statutory provisions to request the specific items being sought from the DA or his designated agents. As noted above, in such search the holder of any claim of privilege for documents or materials from the DA’s office is the DA or his designated agents, not Longanbach. Except for a claim of official information privilege for certain material on computer backup tapes, the DA has specifically waived any privileges to items taken from the DA search in this proceeding.

This brings us to several additional questions. Having determined that Longanbach as a public prosecutor may not claim privileges or privacy interests with regard to his work with the DA, we must now determine whether Longanbach, as an individual, may properly claim the attorney-client privilege or assert work product protection in this proceeding. We must then decide whether anything need be done to correct the procedures utilized by the court and special master below in affording Longanbach with protection against the execution of the search warrants for which he did not qualify.

Regarding Longanbach’s claims of attorney-client privilege as the client, such would appear to pertain mainly to his relationship with Attorney Lasry

It is clear that settled law, legislative history, public policy and the practical considerations mentioned above lead to the conclusion that there is no Sixth Amendment problem with the initial precharging dissemination of documents relating to the relationships between Longanbach and Rice and O’Neill, respectively. On the other hand, California affords a criminal suspect or defendant more rights than afforded an accused under the Sixth Amendment, attaching the right to counsel. We note, for example, California extends the right to counsel to preindictment lineups, which is not required by the Sixth Amendment. (Kirby v. Illinois (1972) 406 U.S. 682 [ 92 S.Ct. 1877 , 32 L.Ed.2d 411 ]; People v. Bustamante (1981) 30 Cal.3d 88 , 94-102 [177 CaLRptr. 576, 634 P.2d 927 ].) In light of Bustamante and out of an abundance of caution, we acknowledge Longanbach’s strong privacy interest as a client in his relationship with Attorney Lasry outweighs the state’s interest in obtaining the confidential communications of that relationship concerning the underlying criminal investigation.

As to the documents claimed privileged due to relationships with O’Neill and Rice, Longanbach’s interests are not paramount to those of the state, which has seized them pursuant to a valid search warrant in its criminal investigation of Longanbach. To allow review by the AG of such documents at this stage of the proceedings does not violate Longanbach’s Fourth, Fifth or Sixth Amendment rights. (Andresen v. Maryland, supra, 427 U.S. at p. 477 [96 S.Ct. at pp. 2746-2747]; Fisher v. United States, supra, 425 U.S. at p. 409 [96 S.Ct. at p. 1580].) Moreover, akin to seizing matters that a person could not be compelled to disclose under the Fifth Amendment, we are

At the risk of repetition, but for the sake of clarity, we summarize our findings before finally resolving the matter before us. As we have found, Longanbach as a public prosecutor has no legitimate expectation of privacy with respect to his actions as a public servant and has no standing to claim any privileges or work product protection in any materials he generated as a DDA. Although Longanbach is entitled under California’s greater right to counsel protections, as an individual, to claim the attorney-client privilege with regard to his relationship as client with Attorney Lasry stemming out of the very criminal investigation from which the search warrants issued, he is not entitled to thwart the dissemination of documents seized during the searches by claiming such privilege with regard to Attorneys O’Neill and Rice. Nor is he entitled to claim work product protection based on self-representation in this case.

Because Longanbach is the target of an ongoing criminal investigation, suspected of wrongdoing while employed as a public prosecutor, we have also found he was not and is not entitled to the protections of the special master proceedings under section 1524, subdivision (c). Although the AG initially acquiesced in such procedures, we find Longanbach is not entitled to receive further benefits under the special master proceeding.

In conclusion, because the DA is the privilege holder with regard to the documents and materials seized from the DA’s office, with the exception of those items the court identified in the ex parte in camera hearings as being protected by the attorney-client relationship between Lasry as the attorney and Longanbach as the client, Longanbach has no standing to claim any privilege with regard to other materials taken from that public office. Therefore, the court’s order of May 8, 2000, reappointing a special master for Longanbach’s protection to review the information from the computer backup tapes at the DA’s office, is invalid and must be vacated.