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When Fresno, Calif., attorney Charles Magill was hired to look into his client’s possible involvement in a fatal hit-and-run accident, he was authorized to meet with police, show them partial images of his client’s car and find out if they were looking for it — as long as his client’s identity was kept under wraps. Investigators ended up getting a warrant for the videotape and unredacted photos, hoping to use the license plate to track the owner. Magill protested on grounds that the images were protected under the attorney-client privilege. His argument was shot down Thursday by California’s 5th District Court of Appeal, which ruled that the tape and pictures “are not confidential communications, protected from disclosure by the attorney-client privilege, but simply conditional work product subject to both criminal and civil discovery.” Nevertheless, Magill got some vindication in the 84-page opinion that severely criticized the way the search warrant was handled by police and prosecutors as well as by the special master presiding over the search of Magill’s office. “This case further presents a textbook example of how to execute a search warrant and violate the protections inherent in the special master statute,” wrote Presiding Justice James Ardaiz, with Justices Thomas Harris and Herbert Levy concurring. In particular, the justices said special master Steven Mortimer improperly disclosed the contents of John Doe’s file while dictating an inventory of the search as cops listened. But the court came down especially hard on the attorney general’s office for violating the appellate court’s stay order by filing the detailed inventory receipt as an exhibit. “Regardless of this court’s determination as to the application of the attorney-client privilege to the John Doe file, these parties violated the provisions of �1524 and failed to maintain the confidentiality of the contents of the file pending a final judicial determination of the application of the privilege,” Ardaiz wrote. Colin Kooyumjian, a Fresno attorney representing Magill, said he was disappointed to have lost the argument that the attorney-client privilege protected the images in question. “But we are the real winners here,” he said, pointing to the court’s compelling admonishment of government investigators and of the special master. “We still believe the special master did an atrocious job. The cops ran all over him,” he said. Mortimer declined to comment because he had not read the opinion. Magill v. Superior Court of the County of Madera, 00 C.D.O.S. 347, stemmed from a hit-and-run auto accident on Highway 41 in Madera County that killed two. A couple, identified as Mr. and Mrs. John Doe, contacted Magill, giving him a newspaper account of the accident. The article stated that the California Highway Patrol was looking for a vehicle described as a white, van-type vehicle pulling a trailer. The client told Magill to photograph a vehicle and trailer and to show them to the CHP to determine if it was looking for that type of vehicle. Magill asked private investigator Myrl Stebens to take photos of the van; some included the van’s license plate number. He also took videotape footage of a blue trailer, parked at a rental company lot. Magill showed some of the photos to the CHP investigators, though he redacted the plate number. Armed with a search warrant, the investigators, along with the special master, then seized the originals from Stebens’ home office despite Magill’s claim that they were protected by the attorney-client privilege. The trial court said the videotape and photos weren’t protected, but the 5th District last March issued an order staying the trial court order. The attorney general’s office argued that there was no basis for the material to be excluded and included in its informal response several exhibits, including a copy of the detailed inventory receipt. As the court’s opinion Thursday noted, the AG “did not file the informal response or any of the exhibits under seal.” Though Ardaiz’s decision stopped short of sanctions, the justices said they hoped the record in the case would serve “as an admonishment to future parties to refrain from such conduct.” Nathan Barankin, spokesman for the attorney general’s office, said his office accepts responsibility for what he described as a lack of attention to detail. “We don’t believe any actual harm was done as a consequence of our behavior,” Barankin said, but added, “I can assure you that the message has been received loud and clear from the court and relayed to our deputies.” Barankin and special master Mortimer both noted that the court did uphold the admissibility of the tape and photos. Sean SeLegue, a partner at Rogers, Joseph, O’Donnell & Quinn specializing in attorney law, said the facts of the case are fairly unusual and that the court’s conclusion doesn’t appear to represent much of a change from existing case law. “It’s not everyday the police search an attorney’s office,” he noted. But he said it does serve as a reminder of the limits to attorney-client privilege. In general, California courts have shown a willingness to broadly protect that privilege — even more so than federal courts. “But there are limits,” he said. “And as this opinion explains, the limit is to communication between an attorney and his client.”

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