Legislation to Protect Lawyer-Client Privilege Between DFEH’s lawyers and Complainants

On March 3, Senator Robert Hertzberg (D-Los Angeles) amended his Senate Bill 774 to create a lawyer-client privilege in the Department of Fair Employment and Housing. The bill would add Section 954.1 to the Evidence Code.

First, the bill would apply the lawyer-client privilege to confidential communications between a lawyer of the Department of Fair Employment and Housing (DFEH) and a person who files a complaint with the DFEH or another person aggrieved by alleged discriminatory practices on whose behalf a complaint is filed. It would make the DFEH the holder of the privilege.

Second, the bill would specify that this new section is only to protect the confidentiality of communications between the DFEH’s lawyers and those filing complaints or other aggrieved persons. However, this new section does not establish a fiduciary, attorney-client relationships between a DFEH lawyer and a complainant or aggrieved person.

Third, the bill would proclaim that this new section of the Evidence Code is “declarative of and clarifies existing law and applies retroactively.” The bill is likely to be heard in March.