WELFARE RIGHTS ORGANIZATION v. CRISAN (1981)

This appeal involves a question of evidentiary privilege in the context of an administrative “fair hearing.” At issue is whether the communications between Aid to Families with Dependent Children (AFDC) claimants and their non-attorney “authorized representatives” are protected by a privilege of confidentiality. We conclude that they are not.

The facts are not in dispute. The Butte County Social Welfare Department, of which defendant Crisan is director, obtained a subpoena and a subpoena duces tecum compelling plaintiff Beltz, a worker with plaintiff Welfare Rights Organization, to testify and to produce documents at an impending administrative fair hearing requested by AFDC claimants and plaintiffs Levine and Green. The information sought involved past communications between Beltz and clients Levine and Green in preparation for a previous AFDC fair hearing. Levine and Green had authorized Beltz to be their lay representative and intended their consultation with him in that capacity to be confidential.

Plaintiffs then filed the underlying superior court action for injunctive and declaratory relief. Preliminarily, the court issued a temporary order restraining defendant Crisan from seeking the evidence of the lay representative-client communications. Ultimately, however, the court ruled that no evidentiary privilege protects the communications of AFDC claimants and non-attorneys authorized to represent those claimants at administrative fair hearings. Accordingly, the court sustained defendant's demurrer without leave to amend and entered judgment dismissing the complaint.

This appeal followed. Plaintiffs assert that the California Evidence Code should not be read to preclude a confidentiality privilege here because both (1) federal regulations and (2) due process of law require the protection of lay authorized representative-claimant confidentiality in the AFDC fair hearing context. We disagree.

I

We begin our analysis with the Evidence Code provisions relating to privileges. The general rule of admissibility is stated in section 911 as follows: “Except as otherwise provided by statute: (P ) (a) No person has a privilege to refuse to be a witness. (P ) (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing. (P ) (c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object, or other thing.” The foregoing rule applies to administrative proceedings such as the AFDC hearing in question. (Evid.Code, s 901.)

The communications here do not come within any of the particular privileges enumerated in the Evidence Code. (See ss 930-1060.) Although the lay-authorized representative's functions are similar to those of an attorney in performing services for a client, the lay representative's communications with clients do not come within the lawyer-client privilege. Evidence Code section 950 specifically defines “lawyer” to mean “a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.” Obviously, a lay advocate is not authorized to practice law. (See Bus. & Prof.Code, s 6060 et seq.)

It is well settled that the provisions in the Evidence Code relating to privilege are exclusive, supplanting any privileges previously available at common law; the courts are not free to modify them or create new privileges as a matter of judicial policy. (Evid.Code, s 12, subd. (c); Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 539-540, 113 Cal.Rptr. 897, 522 P.2d 305.)

Even if the courts were at liberty to draw upon judicial precedent in construing the limits of the attorney-client privilege as defined in the Evidence Code (see Kaplan v. Superior Court (1971) 6 Cal.3d 150, 160-161, 98 Cal.Rptr. 649, 491 P.2d 1), the rule in other jurisdictions has been that the “privilege does not extend to communications between a client and administrative practitioners who are not attorneys, ․ ” (McCormick on Evidence (2d ed. 1972) s 88, pp. 179, 180-181; 8 Wigmore on Evidence (McNaughton rev. ed. 1961) s 2300a, pp. 581-582; Annot. (1964) 96 A.L.R.2d 125, ss 16-18; Brungger v. Smith (C.C.D.Mass.1892) 49 F. 124, and United States v. United Shoe Machinery Corporation (D.Mass.1950) 89 F.Supp. 357, 358-360 (non-attorney patent agents); Falsone v. United States (5th Cir. 1953) 205 F.2d 734, 740-741, and United States v. Zakutansky (7th Cir. 1968) 401 F.2d 68, 70-71, cert. den., (1969) 393 U.S. 1021, 89 S.Ct. 628, 21 L.Ed.2d 565 (non-attorney accountants); see also Baird v. Koerner (9th Cir. 1960) 279 F.2d 623, 627.) Moreover, other jurisdictions having occasion to construe the scope of the privilege as provided by specific statute likewise have found communications to non-attorney administrative practitioners not to be privileged. (Kent Jewelry Corp. v. Kiefer (1952), 202 Misc. 778, 113 N.Y.S.2d 12, 15-17 (patent agent registered to practice before the Patent Office); Hunt v. Maricopa Cty. Emp. Merit System Com'n (1980) 129 Ariz. —, 619 P.2d 1036, 1041 (lay representative of county employee).)

Thus, plaintiffs must rely on other statutory or constitutional authority to establish an AFDC claimant-lay representative privilege of confidentiality. (See Evid.Code, ss 911, 230.)

II

Plaintiffs and amicus curiae first rely on federal regulations governing AFDC administrative hearings to supply the missing privilege. Thus, they assert that the phrase, “Except as otherwise provided by statute,” as contained in Evidence Code section 911 should be interpreted to embrace these federal regulatory provisions or, alternately, that the applicable federal regulations pre-empt any conflicting state law precluding a privilege by virtue of the supremacy clause of the United States Constitution (U.S.Const. Art. VI cl. 2).

The regulatory provisions upon which plaintiffs and amicus base these alternate contentions are found in 45 Code of Federal Regulations, section 205.10. They cite as controlling section 205.10(a)(3)(iii), which provides that every AFDC applicant or recipient “․ may be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or he may represent himself․” In addition, they cite language in section 205.10(a)(13)(iv) and (v) as follows: “The claimant, or his representative, shall have an adequate opportunity: ․ To establish all pertinent facts and circumstances” and “To advance any arguments without undue interference; ․” (See similarly Welf. & Inst.Code s 10950.) Maintaining that these provisions establish an adversary hearing system whereby the non-attorney authorized representative stands on a similar footing with legal counsel, plaintiffs argue that the right to select a lay representative and the opportunity to develop facts and advance arguments after exercising that right would be “shattered” if a representative-claimant privilege did not apply.

Similar arguments have been advanced in recent federal cases involving patent agents who practice before the United States Patent Office. In Sperry v. Florida (1963) 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428, the U.S. Supreme Court reversed a Florida decision holding that a patent agent who met specified qualifications and was registered with the Patent Office but who was not a licensed Florida attorney could not perform patent services within the state of Florida. In reversing, the high court reasoned: Although the patent practitioner's services constitute the unauthorized practice of law under Florida law, federal statutes and regulations which qualify both registered patent agents and attorneys to engage in certain patent activities pre-empt the conflicting state law; hence, the state is powerless to deny the agent a supreme right granted by federal law.

Subsequent federal cases addressing the subject of privilege for non-attorney patent agent communications in light of the Sperry decision are divided. The majority view is that there is no privilege. (Joh. A. Benckiser G.m.b.H., Chem. F. v. Hygrade Food Prod. Corp. (D.N.J.1975) 253 F.Supp. 999; see also Duplan Corporation v. Deering Milliken, Inc. (D.S.C.1974) 397 F.Supp. 1146, 1169.) The minority position holds that the attorney-client privilege must be made available to communications of registered patent agents in order not to frustrate the congressional scheme. (In re Ampicillin Antitrust Litigation (D.D.C.1978) 81 F.R.D. 377, 393-394 and cases cited at p. 392.) Said the court in the Ampicillin case: “That freedom of selection, protected by the Supreme Court in Sperry, would ․ be substantially impaired if as basic a protection as the attorney-client privilege were afforded to communications involving patent attorneys but not to those involving patent agents.” (Fn. omitted; id., at p. 393). The Ampicillin court, however, carefully limited the availability of the privilege to agents registered with the Patent Office and emphasized the fact that these agents are on equal footing with a patent attorney because they are subject to similar professional and ethical standards set by the Patent Office. (Id., at pp. 393-394, fn. 32; see also 8 Wigmore, supra, s 2300a, at p. 582.)

In the present situation there are no professional or ethical standards nor licensing or registration requirements set by an appropriate administrative body which would place non-attorney representatives of AFDC claimants on a par professionally with lawyers practicing in the same setting. Instead, the federal regulations here permit AFDC claimants to authorize whomever they choose to act as their hearing representative. If we were to read these same federal regulations so broadly as to require the availability of privileged communications with any authorized representative, there would be no real limitation on nor clear definition of when and with whom the privilege might apply. Hence, we will not go beyond the rationale of the Ampicillin case and interpret the AFDC federal regulations, silent on the subject of privilege, nonetheless to require one.

III

Citing Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; and Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33, plaintiffs assert that an AFDC claimant's constitutional due process right to a fair hearing prior to any administrative denial or reduction in benefits also mandates the recognition of a privilege against compelled disclosure of lay representative-claimant communications. They argue that the individual claimant's substantial interest in welfare benefits, the value of authorized representative-claimant confidentiality, and the government's interest in protecting such confidentiality outweighs any countervailing state interests in not allowing a privilege. This argument also fails.

The Goldberg decision and its progeny were concerned with the right to be heard and accompanying procedures safeguarding that right prior to governmental curtailment of substantial individual rights. In Goldberg, the Court specifically held that the interest of an eligible AFDC recipient in uninterrupted receipt of public assistance, coupled with the state's interest that such payments not be erroneously terminated, outweighed any opposing state interest in not providing a pre-termination hearing with the accompanying rights to cross-examine and confront adverse witnesses and to retain counsel. Yet the Court neither held nor implied that formal evidentiary rules would be required in such a setting as a matter of due process. In fact, it specifically stated: “Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence.” (Supra, 397 U.S. at p. 269, 90 S.Ct. at p. 1021, 25 L.Ed.2d at p. 300.)

We have found no case where the attorney-client privilege has been associated with a constitutionally-based opportunity to be heard when civil interests such as the one here are involved.¹ As we have discussed, the origins of the privilege are in the common law (see 8 Wigmore, supra, 2290, pp. 542-545), and its current status is purely statutory, existing only so far and in favor of such persons as the legislative power may declare. It necessarily follows that any analogous lay advocate-client privilege also lacks constitutional underpinnings. Merely because federal regulations permit a welfare applicant or recipient to authorize a lay advocate instead of an attorney as a hearing representative, procedural due process does not require that a privilege be available for communications transmitted within the course of that relationship. There is no unfairness of constitutional dimension.

We are neither unaware of nor insensitive to the policy considerations which militate in favor of extending the attorney-client privilege to the lay representative-claimant relationship in the administrative fair hearing context. However, we are not at liberty to say what should be with regard to the privilege of confidentiality. (See Valley Bank of Nevada v. Superior Court, supra, 15 Cal.3d at p. 656, 125 Cal.Rptr. 553, 542 P.2d 977; Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 539-540, 113 Cal.Rptr. 897, 522 P.2d 305.) As we have seen, it is now the prerogative of the Legislature or Congress to make such policy decisions and to delineate what shall be the nature and scope of the attorney-client privilege. In the future, that legislative power may well delimit the availability of a privilege to lay advocates having some professional and formally supervised status. (See 8 Wigmore, supra, s 2300a, p. 582.) There is no evidence that the lay representative here would so qualify. As aptly stated by the trial court judge: “One is reminded that the original definition of a ‘psychotherapist’ as set forth in Evidence Code section 1010 was amended in 1970 to include clinical social workers and school psychologists and again amended in 1972 to include marriage, family and child counselors. These professionals probably felt that their communications were confidential but it took legislative action to accord the privilege which, undoubtedly, sound policy dictated.”

The judgment is affirmed.

I dissent. By today's decision, the majority greatly weakened the federal scheme promulgated for effective advocacy by welfare claimants before the AFDC administrative fair hearing. In so doing, this court has lent to the Evidence Code an unnecessary interpretation.

The majority's ruling impermissibly renders a welfare recipient's right to confidential communication with his or her lay representative abrogated simply by virtue of the inherent inability of the welfare recipient to secure the services of an attorney. Such a distinction is indefensible; it conditions the rights of effective advocacy and advancement of the claimant's case upon the statutorily unrelated ability of the welfare claimant to pay for the services of an attorney. In my view this violates the congressional scheme and intent.

The Evidence Code purports to spell out the exclusive exceptions to the rule contained in Evidence Code section 911. This grant of authority is limited, however, by the phrase “except as otherwise provided by statute.” (Evid.Code, s 911.) The quoted phrase must be interpreted to encompass appropriate federal regulatory provisions.¹ In recognition of the general unavailability of attorneys for the poor, the federal regulations permit outside representation of claimants to aid in the preparation and presentations of a claimant's case to insure as fair a hearing as possible. Section 205.10(a)(3) grants claimants the “choice” to secure either attorney or nonattorney representation at fair hearings. In reality, the choice is often an illusory one. By their status welfare recipients are financially unable to retain private counsel to represent them; the relatively few legal services lawyers, compared to need, means they are often unable to provide counsel.

The relevant federal regulations establish an AFDC administrative fair hearing system which includes provisions to enable recipients to fully present their claims. Thus, each claimant “shall have an adequate opportunity: ‘(iv) To establish all pertinent facts and circumstances; (and) (P ) (v) To advance any arguments without undue interference; ․’ ” (45 C.F.R. s 205.10(13); emphasis added.)

As provided in the regulations, the authorized lay representatives perform identical functions of an attorney in preparing the welfare recipient's arguments and presenting those arguments at the hearing. The confidentiality necessary to perform those functions and to assure full and effective representation would not be questioned if the one representing the welfare claimant were an attorney. Due to the happenstance that welfare recipients and applicants cannot afford to pay an attorney, the welfare claimant's communications made in confidence to his or her representative are today rendered unprotected and unprivileged.

Contrary to the majority's contention, federal courts have indeed extended the attorney-client privilege to lay representation in other fields. For example, In Re Ampicillin Antitrust Litigation (D.D.C.1978) 81 F.R.D. 377 (1978) specifically held that communications between patent agents and clients are accorded the same inviolate confidentiality as those between an attorney and client. Denying application of the privilege, the Court observed, “would result in significantly unequal treatment of patent agents and patent attorneys.” (Id., at p. 393.) Moreover, “Congress, in creating the Patent Office, has expressly permitted both patent attorneys and patent agents to practice before that office․ (I)n appearance and fact, the registered patent agent stands on the same footing as an attorney in proceedings before the Patent Office. Therefore, under the congressional scheme, a client may freely choose between a patent attorney and a registered patent agent for representation in those proceedings. That freedom of selection, protected by the Supreme Court in Sperry, would, however, be substantially impaired if as basic a protection as the attorney client privilege were afforded to communications involving patent attorneys but not to those involving patent agents. As a result, in order not to frustrate this congressional scheme, the attorney-client privilege must be available to communications of registered patent agents.” The Court then framed its ruling as follows: “(W)here a client, in confidence, seeks legal advice from a registered patent agent who is authorized to represent that client in an adversary process that will substantially affect the legal rights of the client, which thereby necessitates a full and free disclosure from the client to the legal representative so that the representation may be effective, the privilege will be available․ ‘The substance of the function, rather than the label given to the individual ․ controls the determination here.’ (Citation.) (Emphasis added. Id., at pp. 393-394.)

The reasoning expressed in Ampicillin is all the more compelling in the instant case, where the interests at stake concern not patent rights, but the primacy of an individual's “statutory entitlement” to welfare benefits which “(provide) the means to obtain essential food, clothing, housing, and medical care.” (Goldberg v. Kelly (1969) 397 U.S. 254, 262, 264, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287, 295, 297.) Their termination “may deprive an eligible recipient of the very means by which (he lives)․ ” (Id., at p. 264, 90 S.Ct. at p. 1018, 25 L.Ed.2d at p. 297.) Thus, the logic which compels application of the attorney-client privilege to confidential communications between patent agents and client applies with far greater force to communications tendered in confidence to authorized lay representatives by welfare claimants. Moreover, many of the same factors mandating the conclusion in Ampicillin are operative here: (1) Congress has expressly provided for representation of welfare claimants by nonattorneys as well as attorneys in establishing the AFDC hearing procedures; (2) Denial of the attorney client privilege would result in gravely unequal treatment of attorneys and lay authorized representatives and those who are forced to secure the services of the latter, thereby frustrating the congressional scheme; (3) the lay authorized representative performs the same functions as an attorney; and (4) the freedom of selection of an attorney or an authorized representative as provided by the congressional scheme would be significantly impaired if the privilege were afforded one (the attorney) and not the other.

Thus, where as here, the claimants have engaged a lay representative to prepare and present their case before the Welfare Board, as specified by Congress, in a proceeding substantially affecting their legal rights, which “necessitates a full and free disclosure from the client to the legal representative so that representation may be effective,” (Ampicillin, supra, 81 F.R.D. at p. 394), then I would hold those communications fully protected by the privilege. The majority attempts to distinguish the Ampicillin case on the basis that patent agents must be registered and must abide by certain professional and ethical standards. This attempt falls short, however, in its misplaced emphasis upon the patent agent (or the representative) rather than the capacity in which the nonattorney serves. As stressed by the Court, it is “(t)he substance of the function, rather than the label given to the individual ․” which controls. (At p. 394.) In the AFDC administrative hearing procedure, as in the Patent Office, both the lay representative and the patent agent perform the same functions as attorneys.

This conclusion does not constitute judicial creation of new rights and privileges, as the majority argues. Rather, it is recognition of a federal scheme of representation in AFDC hearings which necessarily includes within its ambit the confidentiality so integral to effective advocacy. It is the federal scheme (the congressionally enacted statute and the appropriately published regulations), implicitly recognized by the Evidence Code, which create the privilege courts should enforce it.

FOOTNOTES

1.  To bolster their due process argument, plaintiffs attempt to draw analogies to administrative proceedings under the National Labor Relations Act. They cite N.L.R.B. v. Joseph Macaluso, Inc. (9th Cir. 1980) 618 F.2d 51, 56, which held that the public interest of preserving labor-management mediator effectiveness outweighed the interest in compelling the testimony of a mediator as to factual occurrences during mediation sessions. Also cited is Carpenter Sprinkler Corp. v. N.L.R.B. (2d Cir. 1979) 605 F.2d 60, 66, which upheld a National Labor Relations Board decision to exclude from an administrative hearing the secretly prepared tape recordings of telephone communications between employer and union representatives. However, the National Labor Relations Board is “not required to observe the rules of evidence governing the trial of cases in court.” (Ibid.; 29 U.S.C.A. s 160(b).) Moreover, neither Macaluso or Carpenter Sprinkler address due process considerations.

1.  The Evidence Code can be read to recognize the confidential communication with which we deal. There is no conflict between federal and state law. Were there a conflict, the federal scheme, embracing federal cases and regulations, which permits nonattorney representatives to serve in the stead of attorneys, would pre-empt a state law which purported to preclude application of the privilege of confidentiality to AFDC lay representation. (See Sperry v. Florida (1963) 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428.)

PUGLIA, Presiding Justice.

EVANS, J., concurs.