City of San Diego v. Superior Court of San Diego Cnty.

*461 As codified in Evidence Code section 950 et seq., the attorney-client privilege seeks to prevent the disclosure of confidential communications between the lawyer and the client. In the typical situation, where a question at trial or a pretrial discovery request seeks disclosure of arguably privileged information, an objection to the question or request is raised and the trial *607 court rules on the objection based on whether the privilege applies. If the objection is overruled, the party or witness is ordered to answer or respond; if the objection is sustained, the question or request goes unanswered.

But what if the inquiring party somehow obtains an answer to the inquiry before the court has an opportunity to rule on the privilege question, and it is later determined that the privilege applies such that the objection would have been sustained? In many instances, the only available remedy that will preserve the integrity of the process and public respect for the administration of justice would be to disqualify counsel for the inquiring party in conjunction with ordering return of privileged documents and/or sealing of transcripts. Does it make a difference, however, if the…