*1 Apr. No. 24346. [S.F. 1983.]
WELFARE RIGHTS al., ORGANIZATION et Plaintiffs and Appellants, CRISAN, Director, etc., HORIA Defendant and Respondent.
Counsel Bush, Andrew T. Holcombe L. Alan Siegel, Daniel Michael R. Lieberman and Plaintiffs Appellants. Pillion, Rossen, Berzon, Thomas V. John Siporin, Jordan P. Michael Stephen Rubin, Altshuler, Berson, Berzon, Fred H. Marsha S. & Altshuler H. David Grunbaum and Susan L. Bloom as Amici Curiae on behalf Plaintiffs and Appellants. *3 Blackstock, Counsel,
Delbert and M. Siemsen Daniel Leo A. V. Battle County Albrecht, Mims & Battle for Defendant and Respondent. Opinion
KAUS, J. issue is whether communications between welfare claimants and lay authorized representatives to them in administrative fair hear- under the aid to ings (AFDC) families with are dependent children program We conclude are. privileged. that they
The Butte Social County Welfare obtained a and a Department sub- subpoena Beltz, duces tecum poena a directing Welfare Clayton Rights Organization worker, to testify documents at an fair that produce administrative had been Marsha Levine requested by and David Green. The information sought consisted past communications between Beltz and Levine and Green advice” Beltz “regarding had them in connection with an earlier given AFDC fair Levine and had Beltz to hearing. lay Green be their and had believed and intended their with him in that consultation to be confidential. capacity
Levine, Green, Beltz and the filed Welfare an action for Rights Organization Crisan, relief Horia as injunctive declaratory court superior against Director of the Butte Welfare The court a Social issued County Department. order defendant from the evidence temporary restraining seeking enjoining Thereafter, however, ruled that lay communications. it representative-client a communications were not denied evidentiary privilege, protected any without leave preliminary injunction sustained defendant’s demurrer amend. is dismissal. This from the appeal judgment subsequent
Plaintiffs contend that a and that the is privilege constitutionally required Evidence Code therefore read to base their They argu- cannot be it. preclude ment as well the federal on state and Fourteenth due as Amendment process, that federal re- regulations Constitution’s certain supremacy clause—arguing com- a for authorized quire confidentiality privilege representative-client in connection fair hearings. munications as otherwise Evidence Code section 911 states rule: general “Except pro- witness, (a) (b) be a No vided statute: No a has refuse person refuse to matter or to produce has a to refuse to disclose any person another (c) or other No has object any writing, thing, person matter or shall not produce shall not be a witness or shall not disclose any administrative hearings or other This rule writing, object thing.” applies Code, (Evid. well as court hearings. Code, intended clearly
In section of the Evidence the Legislature new creating common law and to the courts from abolish privileges keep 12, subd. (Evid. a matter of nonstatutory privileges judicial policy. (1975) 15 Cal.3d Bank Nevada v. Court (c); Valley Superior 977]; (1974) 11 Cal.3d 542 P.2d Pitchess v. Cal.Rptr. Thus, is 522 P.2d unless privilege statute, found if re only based on its existence bemay expressly impliedly *4 we con will by constitutional state or federal. As principles, appear, quired confront, attorney- clude that in the situation we a to the privilege comparable client is do not reach the question statute. We therefore impliedly provided by of whether it is also constitutionally required. a submitting
AFDC is a federal
in which states may
program
participate
(Burns v.
that conforms to the
Security
Social
Act and federal
plan
regulations.
1180].) The federal
Alcala
In the United held that AFDC Goldberg, recipients States Supreme have a federal due before their benefits to an process right evidentiary hearing trial, it are terminated. form of a judicial need not take the Although hearing must be must to be heard. The provide meaningful pro opportunity recipient for the termination. vided with notice the reasons timely detailing adequate to the ca To be “the must be tailored be heard meaningful, opportunity Kelly, (Goldberg and circumstances of those who are to be heard.” pacities Thus, must 289].) U.S. recipients at pp. atp. are an submissions be allowed to their case since written present orally (id., L.Ed.2d at unrealistic for most welfare option p. recipients and cross-examine 229]), must be an to confront p. given opportunity be made by adverse witnesses. The court the contributions acknowledged issues, in an order counsel in the factual contentions delineating presenting cross-examination; held that the recipient manner and it therefore ly conducting be fur desires, he need not be retain if he though must allowed to counsel so (Id., L.Ed.2d at nished with counsel. at p. counsel,
Although Goldberg spoke only federal regulations setting forth the requirements for state for plans as well. provide lay representation state that They every or applicant be an recipient “may represented by counsel, relative, authorized such representative, friend or legal other or he spokesman, (45 205.10(a)(3)(iii).) himself.” C.F.R. § This broad right representation is based apparently recognition of upon practical limitations on the of welfare ability obtain counsel. recipients Generally they cannot afford to an pay attorney, service legal organizations have been never able all to meet for needs free services.
Consistent with Goldberg and federal our regulations, statutes provide for a hearing or representation by counsel Welfare In person. Code stitutions section enacted in states in “If any pertinent part: or for applicant recipient public social services is dissatisfied with action of the county department relating his for or application receipt public shall, social services ... he in person or through ... be accorded an (Italics a fair . . opportunity added.) . .” By term using “authorized rather “counsel” “at representative” than torney,” Legislature made it clear have a claimants right by lay represented as well as of the bar.1 representatives by members *5 The term “authorized an of the of representative” signifies right expansion that had the representation been accorded welfare claimants. Before previously 10950, enactment of section (Welf. the statute & Inst. applicable 104.1) had the “At in provided: the hearing applicant recipient appear with counsel own of his or in without such person choosing, person of counsel.” The substitution for “counsel” sug- “authorized representative” that the could not the gests Legislature recognized attorneys satisfy alone the and that needs of state’s welfare claimants assistance representational of the “fair through was to insure representation necessary meaningfulness statute. hearing” right provided by
We resist to enrich literature another by yet temptation to the its vital to the effec- panegyric attorney-client privilege importance States, (See, tive administration of Co. v. United justice.2 Upjohn e.g., 1The regulations explicit. make Department this The state Services Manual Social Procedures, Policies and in representative” section 22-001.4 “authorized as “an defines organization dividual or that has been for and authorized the claimant... to act aspects claimant in and all provides state . . .” that when a hearing . Section 22-010 represented claimant is an representative, concerning all notices and decisions hearing shall be furnished to the well as to the claimant. justification 2The recent from the in Supreme most for came United States Court 584, 591, Upjohn United (1981) 383, Co. v. States 449 U.S. 389 L.Ed.2d 101 S.Ct. [66 677]: attorney-client privilege “The the oldest of for privileges is confidential communications 8 J. 1961). Wigmore, known common law. (McNaughton pur to the Evidence 2290 rev. Its pose encourage full between and their attorneys is to and frank communication clients
771 383, 584, 591; (1976) U.S. 449 389-390 L.Ed.2d Fisher v. United States [66 391, 39, 43, 1569]; 425 U.S. 403 v. Meredith People [48 682, 596, (1981) 30]; Cal.3d Barber v. 29 690-691 631 P.2d Cal.Rptr. [175 658, 742, Court (1979) 24 Cal.3d 751-753 598 P.2d Municipal Cal.Rptr. [57 818]; 699, 81, v. People (1974) 12 Cal.3d 705 527 Cal.Rptr. [117 Canfield 633]; 500, P.2d Holm v. P.2d Superior (1954) Court 42 Cal.2d 506-507 [267 125, 722]; P.2d (1951) 268 & Cal.2d City County v. Court 37 Superior of S.F. 227, 26, 1418]; P.2d 25 A.L.R.2d American Mut. Liab. Ins. Co. [231 (1974) 579, v. 561].) 38 Suf 593 Cal.App.3d Cal.Rptr. fice it to that the say are considerations so generally support accepted Legislature must have as an integral its existence implied part would, in right representation by lay Otherwise that persons. right truth, be a confidential and then trap by communications inducing allowing them to be used against the claimant. We do not a sadistic intent attribute such to the Legislature.3
We said 70 nearly years in a ago: necessarily is statute implied “[W]hatever is as much of it as that part (Johnston (1914) which is v. Baker expressed.” Cal. P. This been times. Ex many has principle applied are found in De amples Witt v. San (1852) Francisco Cal. 296 (legisla tion erection authorizing of courthouse embraces necessarily power purchase land on which to it); erect State Poulterer Cal. of California 531 (where statute on imposes obligation party pay money particular per sons, without for its debt providing remedy action for will be im recovery, Currieri v. plied); City Roseville Cal.App.3d (city charter to notice provisions imply rights 615] Thus, not employees classified expressly rule probationary). applying case, necessary this follow implication we well-established merely tradition.
The fact that lay are not or representatives regulation by licensed subject of professional rules conduct does not a of intent to finding legislative preclude thereby promote public broader justice. interests in the observance of law and administration of The privilege recognizes advocacy that sound advice or ends and that such public serves advocacy depends advice or upon lawyer being fully by client. As we stated informed last States, Trammel v. United 40, Term in (1980): lawyer-client privilege 445 U.S. 51 ‘The rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation mission is to be carried out.’ And in Fisher v. United professional if the States, 391, (1976), 425 U.S. recognized purpose we to be ‘to en- courage clients to make attorneys.’ full disclosure to their for the This rationale has Blackburn, Court, long recognized 464, (1888) been see Hunt by the (privilege 128 U.S. upon necessity, ‘is founded persons in the justice, interest and administration of of aid of having knowledge only safely of the law and in practice, skilled its which assistance can be readily disclosure’).” availed of when free from the consequences apprehension or the of 3As Justice Broussard noted argument, Legislature at oral could not have intended that the only was, sound advice the authorized give could “Don’t talk to me.”
Ill
accord them a for even confidentiality set privilege, lawyer-client privilege forth in Evidence Code section 950 et does not seq. require purported lawyer be actually one. Section 950 defines for “lawyer” of purposes authorized, “a meaning person or believed the client reasonably authorized, law in practice (Italics added.) state nation.” we construe
Accordingly, Welfare and Code in- Institutions section 10950 as of cluding guarantee in its extension of the confidentiality right of representa- tion to include representation by lay as well as by counsel connection persons with welfare fair The hearings. absence of a earlier case on this issue single substantial provides for our support conclusion: the 17 in which during years California, the right lay representation in welfare has existed in hearings guarantee of implicit has confidentiality apparently gone unquestioned. Our interpretation Welfare and Institutions Code section as pro- viding implicit guarantee of com- confidentiality lay representative-client munications is also rule that are to construe supported courts statutes manner which avoids (See, constitutional difficulties. United States ex rel. e.g., Atty. Gen. v. Delaware & Hudson Co. (1909) 213 U.S. 407-408 [53 836, 848-849, L.Ed. 527]; White v. Valenta 234 Cal.App.2d 1271]; 13 A.L.R.3d Cal.Rptr. Kramer v. Municipal Cal.App.3d decided the issue Having on statutory we can leave grounds, the due issues process supremacy another day.4 are, course,
There other statutes which permit before lay representation Code, certain 1957; tribunals. (E.g., Unemp. Ins. Lab. we have said with Nothing section 10950 of the Welfare Institu- respect tions Code enactments, demands an identical of those other each interpretation of which will have be examined its own historical and con- against statutory, stitutional background. judgment dismissal is reversed. *
Bird, J., Mosk, J., Broussard, J., Grodin, J., Hamlin, J.,* C. concurred. RICHARDSON, J. of a from the respectfully majority’s recognition dissent I *7 novel communications between welfare claim evidentiary privilege protecting fair hear nonattorneys ants authorized to them at administrative the of new 769), As such creation ings. (ante, majority acknowledges questions 4AIso left the future are concerning scope privilege. the of the Answers to such problems obviously depend, large severely lay will in part, on the limited function representative,” acting “authorized under of the Welfare and Code. section 10950 Institutions * by Council. Assigned Chairperson Judicial contravenes in this state privilege directly authority limiting well established evidentiary to those set in privileges forbidding forth our statutes expressly formulation of even for what are to judicial additional privileges perceived view, be sound reasons. In policy my Presiding the well-reasoned opinion Justice Puglia of Court of deletions follows Appeal, appropriate insertions,* the heretofore assertion of correctly disposes plaintiffs’ nonexistent privilege:
I We our begin with the Evidence to analysis relating Code provisions The rule of in privileges. general is stated section 911 as follows: admissibility as otherwise (a) statute: has a “Except provided by person No privilege [f] refuse to be a witness. [1] (b) No person ahas to refuse to disclose any matter or to (c) refuse to or other No produce any writing, object, thing. [1] has a shall person another not a witness or shall not disclose matter or shall not any any writing, other produce object, thing.” rule foregoing applies such as the AFDC proceedings in (Evid. Code, question. §
The communications here do not come of the within any privileges particular in enumerated (See Evidence 930-1060.) Code. Although lay- §§ authorized are in representative’s functions similar to those of an attorney per- client, services for a forming communications with lay representative’s clients do not come within Evidence Code section lawyer-client privilege. authorized, defines specifically “lawyer” to mean “a or reasonably person believed authorized, client to be state or nation.” law practice Obviously, a lay advocate is not & Prof. (See law. Bus. practice 6060 et do seq.) assert that were misled into plaintiffs [Nor “reasonably” that their was believing so authorized.]
It is well settled that the Evidence Code provisions relating exclusive, are law; available common supplanting any privileges previously the courts are not free to them or create as a matter of modify new privileges (Evid. Code, 12, judicial policy. (c); subd. Bank Nevada v. Valley 652, 553, (1975) 977]; Court Superior Cal.3d P.2d Cal.Rptr. Pitchess 11 Cal.3d Cal.Rptr.
Even if the courts were at
to draw
in constru
liberty
judicial
upon
precedent
the limits of the
ing
attorney-client
as defined in the Evidence Code
(see
v.
Kaplan
150,
(1971) 6 Cal.3d
160-161
[98
649,
1]),
491 P.2d
rule
in other jurisdictions has been that the “privilege
does not extend to communications between a client and administrative practi
tioners who are not
(McCormick
...”
attorneys,
(2d
1972)
on Evidence
ed.
88,
179, 180-181; pp.
on
Wigmore
1961)
§
Evidence
rev.ed.
(McNaughton
2300a,
581-582;
125,
Annot. (1964)
16-18;
pp.
A.L.R.2d
v.
Brungger
§§
(C.C.D.
Smith
1892)
124,
Mass.
49 Fed.
and United States v. United Shoe
(D.Mass.
Machinery Corporation
1950)
357,
F.Supp.
[nonattorney
Falsone v.
patent agents];
1953)
734,
United States (5th Cir.
205 F.2d
740-741, and United
68,
States v. Zakutansky (7th
1968)
70-71,
Cir.
401 F.2d
(1969)
565,
cert. den.
Thus, plaintiffs rely must on other or constitutional statutory .authority establish an AFDC (See claimant-lay confidentiality. representative privilege Evid. §§
II curiae Plaintiffs amicus first on rely federal AFDC regulations governing Thus, hearings supply they assert that missing privilege. statute,” phrase, otherwise as contained in “Except provided by Evidence Code section 911 should be federal embrace these interpreted or, regulatory provisions federal alternately, the applicable regulations state virtue of the preempt conflicting law precluding Const., VI, clause of supremacy (U.S. 2). the United Constitution art. States alter- regulatory which and amicus base these provisions upon plaintiffs nate contentions are found in 45 section 205.10. Code Federal Regulations, They cite as controlling 205.10(a)(3)(iii), section that every provides or recipient an authorized applicant “may represented by represen- tative, counsel, relative, friend, such as other or he spokesman, addition, himself . 205.10(a) . . .’’In section cite language (13)(iv) (v) claimant, follows: “The or his shall have representative, ... To all adequate establish and circumstances” opportunity: pertinent facts *9 interference; (See ...” advance undue and “To without any arguments that these 10950.) provisions Welf. & Inst. similarly Maintaining nonattorney an whereby establish adversary hearing system counsel, argue stands on a with plaintiffs similar footing facts develop to select a and the right lay representative opportunity if a be “shattered” and advance after that would arguments exercising right did not representative-claimant privilege apply. involving
Similar have been advanced in recent federal cases arguments pa- Sperry Office. In tent who before the United States Patent agents practice Florida 1322], the United 373 U.S. that a agent States Court reversed a Florida decision holding patent Supreme office but who met and was with the patent specified qualifications registered who was not a services licensed Florida could not attorney perform patent the State of Although within Florida. In court reasoned: reversing, high of law under services constitute the unauthorized patent practitioner’s practice law, Florida federal both registered pa- statutes and regulations qualify tent the con- agents attorneys to in certain activities engage preempt patent law; hence, state flicting right state is deny agent supreme powerless federal law. granted by federal
Subsequent nonattorney cases addressing subject are divided. The Sperry patent agent communications decision light (Joh. G.m.b.H., Chem. A. Benckiser view is that majority there is no privilege. F. v. Hygrade 999; Food Prod. (D.N.J. see also Corp. 1975) F.Supp. Milliken, Duplan Corporation v. Deering Inc. (D.S.C. 1974) 397 F.Supp. 1146, 1169.) The must minority holds that the position attorney-client privilege be made available to communications of registered in order not to agents patent Antitrust (In Litigation re Ampicillin frustrate the congressional scheme. (D.D.C. 1978) 392.) 81 F.R.D. at Said the 393-394 and cases cited p. selection, in the Ampicillin case: “That court freedom of by protected Sperry, would ... be if as basic a Supreme pro substantially impaired tection as the were afforded to communications involv attorney-client privilege ” id., omitted; (Fn. attorneys but not to those ing patent involving agents. patent court, however, Ampicillin 393.) availability at limited carefully p. the fact with the office and agents registered patent emphasized are are on with a because agents footing attorney they these equal patent office. to similar and ethical set
subject patent standards professional 2300a, 393-394, 32; (Id., at fn. see also 8 Wigmore, pp.
In the ethical situation there are no or standards or present professional body set licensing registration requirements appropriate on a which would of AFDC claimants par place nonattorney representatives Instead, the federal in the same professionally lawyers setting. practicing here regulations permit claimants to authorize whomever choose to *10 act their as If hearing we to representative. were read these same federal regula- tions so as to broadly the of with communications require availability privileged any there representative, would no real limitation on nor clear of Hence, definition when and with whom we will privilege might apply. not go beyond rationale of the Ampicillin case the AFDC interpret federal regulations, silent on the nonetheless to subject privilege, require one.
HI
Kelly (1970)
v.
Citing Goldberg
We are neither unaware nor policy to the lay repre- attorney-client in favor of extending militate context. fair hearing relationship sentative-claimant to the However, regard should be with we are not at what liberty say *11 Court, (See Nevada Superior Bank confidentiality. Valley privilege Court, 656; 11 Cal.3d supra, 15 Cal.3d at Pitchess v. supra, p. seen, Legislature of the 539-540.) As we have it is now the prerogative pp. shall be the to delineate what to make such decisions and Congress policy future, that legislative nature and In attorney-client scope privilege. having advocates delimit of a availability well power privilege (See 8 Wigmore, and status. supervised some professional formally 2300a, here would no the lay representative There is evidence that “One is reminded As stated the trial court qualify. aptly judge: so Code section in Evidence definition of a as set forth original ‘psychotherapist’ school workers and 1010 was amended in include clinical social 1970 to family child marriage, to include amended psychologists again were communications counselors. These felt that their professionals probably which, un- confidential but it took action to accord legislative sound Court of doubtedly, opinion.] dictated.” policy Appeal [End view, In my errs majority jettisoning foregoing straightforward Instead, their tortuous analysis my claims. plaintiffs’ colleagues wending fiat, create, around the way by judicial decisional obstacles statutory nonstatutory attorney- new While their evidentiary privilege. praise ante, 770-771, commendable, (see 2) their client and fn. is pp. availability attorneys failure to observe its limitation and to restrict its clients, their is A for communications between not. new comparable judi- and those not be fashioned nonattorneys whom should alone, from await cially precise legislative but should supposed implication expression. affirm
I would the judgment.