Preliminary Fact Of Agency Not Established.

A lawyer, defense counsel in a criminal trial, filed a writ of prohibition challenging the superior court’s adjudication of contempt against her. The lawyer failed to answer questions regarding how she came into possession of evidence relevant to the prosecution of her client. The lawyer contends the evidence was delivered to her in some way by her client’s agents, thus the circumstances of the delivery are protected by the attorney-client privilege. The appellate court stated the matter “presents a novel argument whereby she contends a prima facie showing of the existence of a privilege can be satisfied by an attorney representing to the court that she received evidence through the defendant’s agent or agents.” The appellate court noted the lawyer presented almost no evidence on the existence of agency, which is generally a question of fact. Without the existence of agency, the lawyer’s claim of privilege necessarily fails. In denying the lawyer’s writ, the court stated: “We are mindful that [the lawyer] cannot be compelled to disclose the content of an allegedly privileged communication to allow the court to determine if the privilege exists. However, we are not willing to expand the law of privilege to allow an attorney to claim the privilege exists in an agency situation without proving the preliminary fact of agency.” (Zimmerman v. Sup. Ct. (The People) (Cal. App. Fourth Dist., Div. 1; October 8, 2013) 220 Cal.App.4th 389, [163 Cal.Rptr.3d 135].