Communication Versus Information
 

The principle that the attorney-client privilege protects communications, not information sounds like judicial double-talk, but it is not. It recognizes a distinction vitally important to the effectiveness of the privilege's protection.
 

The attorney-client privilege protects what a client "communicates" to an attorney in confidence for the purpose of obtaining legal assistance, regardless of the nature, source or status of the information incorporated in such a communication. Therefore, even if the information being transmitted is generally known by the public (e.g., a divorce decree), the fact that that information was transmitted to the attorney by the client is privileged (assuming, of course, that the other elements of the privilege were satisfied).
 

Benefits Great -- Harm Minimal
 

Although the privilege does suppress relevant evidence, the resulting harm is minimal for two reasons. First, if the justification for the privilege is accurate -- that clients speak more candidly knowing that their words cannot later hurt them -- the client may not have made those communications without the existence of the privilege protection. Therefore, to some extent the privilege suppresses only the additional material its own existence makes possible. Second, the information that is being communicated to the attorney is not itself made privileged by the fact that it was transmitted to the attorney. Therefore it can be discovered from the client because that discovery does not disclose what was "communicated" to the attorney..
 

Theory Is Recognized But Misapplied
 

While widely recognize, this principle is both misunderstood and erroneously misapplied. Magill v. Superior Court, 2001 Cal. App. LEXIS 14 (Jan. 10, 2001) is a case in point. In Magill the client contacted an attorney after the client's van had been involved in a fatal hit-and-run accident. The client gave a newspaper article about the accident to the attorney and invited the attorney to take photographs of the van and show them to the police in order to discover whether it was the van being sought in the hit-and-run incident. Because these photographs revealed the license number on the van, and thereby the identity of the client, the number was obscured in the published picture. When the attorney's office was later searched pursuant to a lawful search warrant, the file containing these photographs was seized. The attorney moved to suppress these photographs on the grounds that their seizure violated his client's attorney-client privilege. In affirming the trial court's denial of this claim, the Appellate Court held that the photograph taken by the attorney's agent (an investigator) was not privileged because "there in nothing in the videotape and photographs which can reasonably be interpreted as a confidential communication between John Doe and Magill [the attorney], and the items are not independently protected from disclosure by the attorney-client privilege." This result is questionable.
 

Since the content of the communication is not supposed to control the application of the privilege protection, if the client had verbally described the van and given its license number to the attorney, the Magill court would probably have held that these oral communications were protected by the attorney-client privilege. The attorney's notes and tape recordings of these communications would also have been protected by the privilege.
 

A different result should not apply simply because the client chose to show either the van itself or a photograph of the van to the attorney. If, as was the case in Magill, the attorney takes photographs of the van, this is the equivalent of the attorney taking notes of or tape recording what the client could have verbally described. The Magill court, however, held that the privilege was not applicable to those photographs because the object being photographed was not privileged. This is wrong.
 

Because the nature of the facts communicated is irrelevant to the application of the privilege, the form in which those facts are communicated is also irrelevant. Therefore, if the client had a non-privileged pre-existing photograph of the van and communicated it to the attorney, the fact that the photograph was transmitted to the attorney is privileged. The photograph, however, remains discoverable from the client. This is true even if the only copy had been sent to the attorney -- the client would have the obligation to retrieve the photograph from the attorney (because it is in his control) and produce it as if it had never been communicated. In both instances, the non-privileged facts and the non-privileged document become part of a privileged "communication."
 

The Magill court denied the privilege protection because the photographs were of an item that was "not independently protected from disclosure by the attorney-client privilege." While this was true, it was irrelevant. By seizing the photographs and videotapes from the attorney, the government indirectly obtained what it could not directly discover, namely the information the client previously had communicated to the attorney. The fact that the van's existence and ownership were not confidential information only means that the van and information about it could have been discovered from the client, if the government had known who the client was. Similarly, although it was not an issue in the case, if the client in Magill also confidentially communicated to the attorney the newspaper article about the accident, that should have been as privileged as anything the client may have verbally uttered. Again, the fact that the article was public knowledge would have been irrelevant.
 

The court also said that the disclosure of the van to the attorney was not a protected communication because the photograph of it was not "communicative." The court stated that "there is nothing in the videotape and photographs which can reasonably be interpreted as a confidential communication between [the client] and Magill." This is preposterous. If the client contacted the attorney because of the client's involvement in the hit-and-run accident, and the van had been involved in that incident, the showing of the van to the lawyer was the client's "communication" that this was the vehicle that had been driven. Indeed, that "communication" was the very reason the government wanted to seize the photographs from the attorney.
 

Although it is true that the appearance of the van is not "confidential" information when it is parked on a public parking lot and photographed, the status of the photographs for privilege purposes must be assessed in the context in which they were taken. If the photographs had been taken as part of a general investigation of the incident, the Magill court's conclusions might have been accurate. Here, however, they were taken at the behest of the client who brought the van to the attorney for that purpose. Therefore, it seems both unfair and illogical not to consider the presentation of the van to the attorney's agent as a "communication" by the client. Disclosing this van to the attorney was no different from a client's pulling his shirt up during an interview and showing the attorney scars on his body. In the latter instance the attorney would not be permitted to reveal any information about the appearance of that scar.
 

The photographs at issue were not just photographs of a van, but of the van that had been involved in the hit and run. The only reason the van was being shown to the attorney was to be photographed, and the only reason it was being photographed was the unique status it had -- knowledge of which was acquired through an admittedly confidential client communication.
 

The Right Result for the Wrong Reason
 

Perhaps the Magill court should have concluded that the client had not been seeking "legal" assistance when he asked the attorney to show the photographs to the police. Anyone could have done this for the individual. The publication of these photographs did not involve a special expertise that only lawyers would possess.

Another avenue might have been to conclude that the client had never had a reasonable expectation of confidentiality in the photographs in light of the reason given for taking them -- publication to law enforcement officials. Since the police could not reasonably have eliminated the van from suspicion without additional knowledge, like the results of forensic tests on the vehicle, this disclosure might be seen as a selective disclosure that is not permitted in California. The court could have concluded that the client was impermissibly attempting to use the privilege as both a sword and a shield.
 

Client Identity Can Be Protected Information
 

After holding that the seizure of the photographs was not a violation of the client's attorney-client privilege, the Magill court proceeded to conclude that the client's identity also was not protected by the attorney-client privilege. Though, as the court correctly acknowledged, client identity is not generally considered confidential information that is protected by the privilege, a universally-recognized exception to that rule is made for situations in which the client is seeking legal assistance on a question of identity. There is an established line of cases in both California and federal courts on this point.  However, once the court concluded that the photographs were not "communications," it correctly concluded that the identities of the clients were not privileged simply because the photographs might lead to the discovery of these identities.
 

Conclusion
 

Though the Magill court reached the correct result, it did so by coincidence. This is both fortunate, because the correct result was achieved, and unfortunate because the opinion was well researched and convincingly written, even if not flawlessly reasoned. And since the right outcome was reached, the court's result will likely carry the court's reasoning.
 

The application of legal principles, however, is not like a game show where the prize is given for the correct answer. It is a process by which the law evolves through its interpretation and application.  The attorney-client privilege has developed significantly since the early common law. While nationally the attorney-client privilege continues to evolve in a number of ways, its growth in California has been stifled by the fact that California has codified all privileges, rather than leaving them to develop "by principles of the common law . . . in light of reason and experience," as under the Federal Rules of Evidence. Nevertheless, evolution continues through judicial decisions, if only through the erroneous application of established principles. In Magill a deceptively bad seed has been planted.