DEPARTMENT VIOLATES OFFICER’S ATTORNEY–CLIENT PRIVILEGE

ROBERT RABE, ESQ.
Associate Attorney
Stone Busailah, LLP

The attorney–client privilege seeks to prevent the disclosure of confidential communications between the lawyer and the client. In the typical situation, where a question request seeks disclosure of arguably privileged information, an objection to the question or request is raised and the trial court rules on the objection based on whether the privilege applies. If the objection is overruled by the court, the party or witness is ordered to answer or respond; if the objection is sustained, the question or request goes unanswered.

In this case (City of San Diego v. Superior Court [2018] Cal.App. LEXIS 1179 Court of Appeal, Fourth Appellate District), as part of an internal affairs (IA) investigation regarding the unauthorized disclosure of a confidential police report, the San Diego Police Department questioned Dana Hoover, a detective for the Department, regarding the content of communications between Hoover and an attorney representing her in an employment-related lawsuit against the City of San Diego. Although Hoover invoked the attorney–client privilege, the Department directed her to answer the IA questions or face discipline, up to and including termination, for insubordination.
At a later hearing, the trial court concluded that the City violated the attorney–client privilege when Department investigators insisted Hoover respond to questions despite her invocation of the privilege. A deputy city attorney attended the interview as an “observer.” The trial court also concluded that the deputy city attorney violated the State Bar Rules of Professional Conduct, when she began questioning Hoover about her lawsuit without the permission of her lawyer in the case.

Background
Hoover filed a lawsuit against the City of San Diego, alleging claims of employment-related harassment and retaliation, based on complaints she made about investigative failures by the Department’s Homicide Unit. Hoover was represented in her lawsuit by attorney Daniel Gilleon. Gilleon later agreed to represent a different client — the mother of a minor sexual assault victim — in a separate claim against the City.

The claim alleged that the Department failed to properly investigate the assault and then covered it up. Media reports about the claim referenced what appeared to be the contents of a “police report.” These reports prompted an investigation by the Department’s IA Unit seeking to determine if and how the media obtained a confidential police investigative report.
Suspicion focused on Hoover, and investigators scheduled an interview to determine whether she was the source of the leak. Hoover was accompanied by her union representative, another officer, to the interview. Hoover was ordered to respond to the investigator’s questions and was told that any refusal to answer could be treated as insubordination. Although she had no involvement in the sexual assault case, Hoover admitted during the interview that she accessed and reviewed the report. She denied, however, providing the report to or discussing its contents with anyone.

The investigators then began to inquire about communications between Hoover and Gilleon. The union representative objected, based on the attorney–client privilege. Not wanting to be deemed insubordinate, Hoover began answering the questions. The union representative again objected and advised Hoover not to answer any further questions about the content of communications with her lawyer. The investigators took a break, contacted their supervisor and, when questioning resumed, did not ask further questions about her communications with Gilleon.

After the interview, an investigator contacted Hoover, explaining to her that the City Attorney’s Office had concluded that the attorney–client privilege did not preclude questions about her conversations with Gilleon, as they related to the sexual assault investigation and the leaked police report and ordered her to submit to a follow-up interview. When Gilleon learned of the IA investigation, he sent an email to the City Attorney’s Office complaining about the alleged violation of the attorney–client privilege, and warned that if the City continued to question Hoover about conversations she had with Gilleon, he would, among other things, take legal action to “disqualify” the city attorney from representing the City in Hoover’s lawsuit.
At the re-interview, Hoover was again asked, over objections by her attorney (not Gilleon), about conversations she had with Gilleon. Specifically, the investigators inquired about the content of the phone conversation she had with Gilleon that preceded Hoover accessing the sexual assault case report. Hoover summarized what she recalled Gilleon telling her, including details of the sexual assault investigation. Later, Hoover decided to look at the police report concerning the sexual assault incident out of “professional curiosity.” She printed a copy, read the report, then immediately placed it in a “secured shred bin.” She specifically denied giving a copy of the report to anyone or discussing its contents with anyone, including any member of the press.
Hoover filed a motion to disqualify the entire City Attorney’s Office in the harassment and retaliation action for the violation of the attorney–client privilege. The trial court granted the motion, finding that the City Attorney’s Office had forced Hoover to reveal confidential attorney–client communications. The trial court stated that disqualification was warranted “to preserve the public’s trust in the integrity of the judicial process and to prevent future prejudice to the plaintiff.”

Court of Appeal Decision
The court stated that there was no dispute whether “Gilleon had an attorney–client relationship with Hoover” and that the “trial court correctly concluded that when the IA Division questioned Hoover over her objection about the content of her phone conversation with Gilleon, they invaded the attorney–client privilege.” The court noted that sometimes the only available remedy for a violation of the attorney–client privilege is to disqualify counsel for the inquiring party, in conjunction with ordering return of privileged documents and/or sealing of transcripts.

The court then questioned whether disqualification of counsel was necessarily the remedy, if the violation of the attorney–client privilege resulted in no actual disclosure of relevant information. The court noted that disqualifying a lawyer from representing a client is not done to punish the lawyer’s mistakes or even bad behavior. Rather, disqualification is designed to mitigate the unfair advantage a party might otherwise obtain if the lawyer were allowed to continue representing the client. Disqualification should occur when counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation.
In this case, the court knew exactly what was and was not disclosed when the City elected to question Hoover regarding her communication with Gilleon. Since Hoover told the investigators she gave Gilleon no information about the sexual assault case, the court concluded there would be no “substantial continuing effect on future judicial proceedings,” and directed the trial court to vacate its order disqualifying the San Diego city attorney.

Conclusion
We may never know if Hoover was, or will be, successful in her lawsuit against the City of San Diego. It is also likely that we will never find out if Hoover was disciplined for accessing the sexual assault case report.
However, the takeaway from this case is that it was not for the Department or the city attorney to determine unilaterally whether the attorney–client privilege applies. That is a task for a court to perform. When the attorney–client privilege was raised, the IA investigators questioning on the specific topic should have been stopped until the matter could be raised with the court.
When an officer is being questioned during an IA investigation, it is important to be represented by an experienced attorney who will know how to respond when such a situation may arise.
Stay safe!

About the Author
Robert Rabe is Stone Busailah, LLP’s writs and appeals specialist. His 40 years practicing law include 16 years as a Barrister, Supreme Court of England and Wales, practicing in London, England.