| There are differences between arbitration and litigation: | | | | experts or consultants), if the purpose of the third |
| An arbitrator has no authority to order an in camera | | | | parties' presence is to further the interests of the client. |
| review of information protected by the attorney-client | | | | California Evidence Code § 952. |
| privilege, the absolute work-product doctrine or the | | | | The Conditional Work-Product Doctrine |
| conditional work-product doctrine. Only a judge has the | | | | The conditional work-product doctrine, on the other |
| power to conduct any sort of review, and then only on | | | | hand, is not an "absolute" protection. The conditional |
| materials subject to the conditional work-product | | | | work-product doctrine protects attorney work-product |
| doctrine. | | | | that doesn't expressly contain the attorney's |
| This article focuses on limits to an arbitrator's power | | | | impressions and opinions of the case. Under the |
| when one of three privileges are asserted: (1) the | | | | conditional work-product doctrine, information is not |
| attorney-client privilege, (2) the absolute work-product | | | | discoverable unless a court determines that denial of |
| doctrine and (3) the conditional work-product doctrine. | | | | discovery will unfairly prejudice the party seeking |
| A strong understanding of this distinction can enable an | | | | discovery. California Code of Civil Procedure § |
| attorney to enhance the cost-effectiveness of | | | | 2018.030(b). |
| arbitration by eliminating any doubt regarding the | | | | The important distinction between the conditional and |
| procedures for ruling on claims of privilege. It can also | | | | the absolute protections is the need for a court to rule |
| help an attorney get the most "bang for the buck" | | | | on the issue of prejudice. This is where California law |
| from outside consultants by maximizing the use of | | | | specifically limits the powers of an arbitrator as |
| such consultants while giving comfort to the client that | | | | compared to a judge. |
| such communications will not be disclosed to the | | | | California Evidence Code Section 915 |
| arbitrator. | | | | California Evidence Code § 915(a) expressly |
| The key distinction between an arbitrator and a judge | | | | prohibits the disclosure of privileged information when |
| when faced with claims of privilege is that a judge can | | | | an adversary challenges a claim of attorney-client |
| order an in camera inspection of information (in limited | | | | privilege or the absolute work-product doctrine. |
| circumstances) whereas an arbitrator cannot. If a | | | | California courts have held that a party claiming either |
| party in arbitration invokes the attorney-client privilege | | | | of these privileges is not required to waive the privilege |
| or the absolute work-product doctrine, an arbitrator is | | | | by disclosing the information to assert the privileges. |
| prohibited by California Evidence Code § 915(a) | | | | California Evidence Code § 915(b) provides a |
| from requiring an in camera review of the documents | | | | procedure by which a judge - not an arbitrator - can |
| to rule on the claim of privilege. If a party in arbitration | | | | conduct an in camera review of documents claimed to |
| asserts the conditional work-product doctrine, an | | | | be privileged under the conditional work-product |
| arbitrator is prohibited by California Evidence Code | | | | doctrine. The plain language of § 915(b) reflects |
| § 915(b) from ordering an in camera inspection of | | | | the Legislature's intent to limit in camera inspection |
| the documents to rule on that claim of privilege as well. | | | | authority to judges only by using the words "judge" |
| The Attorney-Client Privilege and the Absolute | | | | and "the court," rather than the broader term "presiding |
| Work-Product Doctrine | | | | officer." The legislative history of § 915(b) also |
| To understand these distinctions, it is useful to review | | | | supports the view that only judges have the authority |
| the three types of privileges covered by this article. | | | | to order an in camera review of documents claimed to |
| First, the attorney-client privilege protects an attorney's | | | | be protected by the conditional work-product doctrine. |
| communications with a client regarding, among other | | | | Practical Applications |
| things, case strategy and the attorney's advice to the | | | | Privileges are important protections that enable clients |
| client. California Evidence Code § 954. Second, | | | | to fully investigate the strengths and weaknesses of |
| the absolute work-product doctrine protects all | | | | various approaches to resolving a legal dispute. If |
| communications directly reflecting the attorney's | | | | clients had to fear disclosure of their privileged |
| impressions, conclusions, opinions or theories about the | | | | communications, they might be prevented from fully |
| case. California Code of Civil Procedure § | | | | exploring all useful resources for dispute resolution. |
| 2018.030(a). | | | | Empowering only judges - not arbitrators - to conduct |
| Both the protection of the attorney-client privilege and | | | | in camera reviews of privileged documents is an |
| the attorney work-product doctrine are "absolute." | | | | important safeguard under California law. |
| Furthermore, the communications are protected even | | | | Understanding this protection may also be the key to |
| if conducted in the presence of third parties (such as | | | | winning your next case. |