Opinion
KAUS, J. The issue is whether communications between welfare claimants and lay representatives authorized to represent them in administrative fair hearings under the aid to families with dependent children (AFDC) program are privileged. We conclude that they are.
The Butte County Social Welfare Department obtained a subpoena and a subpoena duces tecum directing Clayton Beltz, a Welfare Rights Organization worker, to testify and produce documents at an administrative fair hearing that had been requested by Marsha Levine and David Green. The information sought consisted of past communications between Beltz and Levine and Green “regarding legal advice” Beltz had given them in connection with an earlier AFDC fair hearing. Levine and Green had authorized Beltz to be their lay representative and had believed and intended their consultation with him in that capacity to be confidential.
Levine, Green, Beltz and the Welfare Rights Organization filed an action for injunctive and declaratory relief in superior court against Horia Crisan, as Director of the Butte County Social Welfare Department. The court issued a temporary restraining order enjoining defendant from seeking the evidence of the lay representative-client communications. Thereafter, however, it ruled that the communications were not protected by any evidentiary privilege, denied a preliminary injunction and sustained defendant’s demurrer without leave to amend. This appeal is from the subsequent judgment of dismissal.
Plaintiffs contend that a privilege is constitutionally required and that the Evidence Code therefore cannot be read to preclude it. They base their argument on state and Fourteenth Amendment due process, as well as the federal Constitution’s supremacy clause—arguing that certain federal regulations require a confidentiality privilege for authorized lay representative-client communications in connection with AFDC administrative fair hearings.
Evidence Code section 911 states the general rule: “Except as otherwise provided by statute: (a) No person has a privilege to refuse to be a witness, (b) No [769]person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object or other thing, (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.” This rule applies to administrative hearings as well as court hearings. (Evid. Code, § 901.)
In section 911 of the Evidence Code, the Legislature clearly intended to abolish common law privileges and to keep the courts from creating new nonstatutory privileges as a matter of judicial policy. (Evid. Code, § 12, subd. (c); Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 [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].) Thus, unless a privilege is expressly or impliedly based on statute, its existence may be found only if required by constitutional principles, state or federal. As will appear, we conclude that in the situation we confront, a privilege comparable to the attorney-client is impliedly provided by statute. We therefore do not reach the question of whether it is also constitutionally required.
AFDC is a federal program in which states may participate by submitting a plan that conforms to the Social Security Act and federal regulations. (Burns v. Alcala (1975) 420 U.S. 575 [43 L.Ed.2d 469, 95 S.Ct. 1180].) The federal regulations set forth detailed requirements for state plans. Among these is one that the plan provide for a system of hearings which meets the due process standards articulated in Goldberg v. Kelly (1970) 397 U.S. 254 [25 L.Ed.2d 287, 90 S.Ct. 1011] and other criteria detailed in the regulations. (45 C.F.R. § 205.10.) The conclusion we reach on the privilege question before us derives from the nature of those hearings as authoritatively prescribed.
In Goldberg, the United States Supreme Court held that AFDC recipients have a federal due process right to an evidentiary hearing before their benefits are terminated. Although the hearing need not take the form of a judicial trial, it must provide a meaningful opportunity to be heard. The recipient must be provided with timely and adequate notice detailing the reasons for the termination. To be meaningful, “the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.” (Goldberg v. Kelly, supra, 397 U.S. at pp. 268-269 [25 L.Ed.2d atp. 289].) Thus, recipients must be allowed to present their case orally since written submissions are an unrealistic option for most welfare recipients (id., at p. 269 [25 L.Ed.2d at p. 229]), and they must be given an opportunity to confront and cross-examine adverse witnesses. The court acknowledged the contributions to be made by counsel in delineating the issues, presenting the factual contentions in an orderly manner and conducting cross-examination; it therefore held that the recipient must be allowed to retain counsel if he so desires, though he need not be furnished with counsel. (Id., at p. 270 [25 L.Ed.2d at p. 270].)
[770]Although Goldberg spoke only of counsel, the federal regulations setting forth the requirements for state plans provide for lay representation as well. They state 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.” (45 C.F.R. § 205.10(a)(3)(iii).) This broad right of representation apparently is based upon recognition of the practical limitations on the ability of welfare recipients to obtain counsel. Generally they cannot afford to pay an attorney, and legal service organizations have never been able to meet all of the needs for free legal services.
Consistent with Goldberg and federal regulations, our statutes provide for a hearing with representation by counsel or by a lay person. Welfare and Institutions Code section 10950, enacted in 1965, states in pertinent part: “If any applicant for or recipient of public social services is dissatisfied with any action of the county department relating to his application for or receipt of public social services ... he shall, in person or through an authorized representative ... be accorded an opportunity for a fair hearing . . . .” (Italics added.) By using the term “authorized representative” rather than “counsel” or “attorney,” the Legislature made it clear that claimants have a right to be represented by lay representatives as well as by members of the bar.1
The term “authorized representative” signifies an expansion of the right of representation that previously had been accorded welfare claimants. Before the enactment of section 10950, the applicable statute (Welf. & Inst. Code, § 104.1) had provided: “At the hearing the applicant or recipient may appear in person with counsel of his own choosing, or in person and without such counsel.” The substitution of “authorized representative” for “counsel” suggests that the Legislature recognized that attorneys alone could not satisfy the representational needs of the state’s welfare claimants and that assistance through representation was necessary to insure the meaningfulness of the “fair hearing” right provided by statute.
We resist the temptation to enrich the legal literature by yet another panegyric to the attorney-client privilege and its vital importance to the effective administration of justice.2 (See, e.g., Upjohn Co. v. United States, supra, [771449] U.S. 383, 389-390 [66 L.Ed.2d 584, 591; Fisher v. United States (1976) 425 U.S. 391, 403 [48 L.Ed.2d 39, 43, 96 S.Ct. 1569]; People v. Meredith (1981) 29 Cal.3d 682, 690-691 [175 Cal.Rptr. 596, 631 P.2d 30]; Barber v. Municipal Court (1979) 24 Cal.3d 742, 751-753 [57 Cal.Rptr. 658, 598 P.2d 818]; People v. Canfield (1974) 12 Cal.3d 699, 705 [117 Cal.Rptr. 81, 527 P.2d 633]; Holm v. Superior Court (1954) 42 Cal.2d 500, 506-507 [267 P.2d 125, 268 P.2d 722]; City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 234-235 [231 P.2d 26, 25 A.L.R.2d 1418]; American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 593 [113 Cal.Rptr. 561].) Suffice it to say that the considerations which support the privilege are so generally accepted that the Legislature must have implied its existence as an integral part of the right to representation by lay persons. Otherwise that right would, in truth, be a trap by inducing confidential communications and then allowing them to be used against the claimant. We do not attribute such a sadistic intent to the Legislature.3
We said nearly 70 years ago: “[W]hatever is necessarily implied in a statute is as much part of it as that which is expressed.” (Johnston v. Baker (1914) 167 Cal. 260, 264 [139 P. 86].) This principle has been applied many times. Examples are found in De Witt v. San Francisco (1852) 2 Cal. 289, 296 (legislation authorizing erection of courthouse necessarily embraces power to purchase land on which to erect it); State of California v. Poulterer (1860) 16 Cal. 514, 531 (where statute imposes obligation on party to pay money to particular persons, without providing remedy for its recovery, an action for debt will be implied); Currieri v. City of Roseville (1970) 4 Cal.App.3d 997, 1001 [84 Cal.Rptr. 615] (city charter provisions imply rights to notice and hearing for employees not expressly classified as probationary). Thus, in applying the rule of necessary implication in this case, we merely follow well-established tradition.
The fact that lay representatives are not licensed or subject to regulation by professional rules of conduct does not preclude a finding of legislative intent to [772]accord them a confidentiality privilege, for even the lawyer-client privilege set forth in Evidence Code section 950 et seq. does not require that the purported lawyer actually be one. Section 950 defines “lawyer” for purposes of the privilege as meaning “a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.” (Italics added.)
Accordingly, we construe Welfare and Institutions Code section 10950 as including a guarantee of confidentiality in its extension of the right of representation to include representation by lay persons as well as by counsel in connection with welfare fair hearings. The absence of a single earlier case on this issue provides substantial support for our conclusion: during the 17 years in which the right of lay representation in welfare hearings has existed in California, the implicit guarantee of confidentiality has apparently gone unquestioned.
Our interpretation of Welfare and Institutions Code section 10950 as providing an implicit guarantee of confidentiality of lay representative-client communications is also supported by the rule that courts are to construe statutes in a manner which avoids constitutional difficulties. (See, e.g., United States ex rel. Atty. Gen. v. Delaware & Hudson Co. (1909) 213 U.S. 366, 407-408 [53 L.Ed. 836, 848-849, 29 S.Ct. 527]; White v. Valenta (1965) 234 Cal.App.2d 243, 249 [44 Cal.Rptr. 241, 13 A.L.R.3d 1271]; Kramer v. Municipal Court (1975) 49 Cal.App.3d 418, 424 [122 Cal.Rptr. 672].) Having decided the issue on statutory grounds, we can leave the due process and supremacy issues for another day.4
There are, of course, other statutes which permit lay representation before certain tribunals. (E.g., Unemp. Ins. Code, § 1957; Lab. Code, § 5700.) Nothing we have said with respect to section 10950 of the Welfare and Institutions Code demands an identical interpretation of those other enactments, each of which will have to be examined against its own statutory, historical and constitutional background.
The judgment of dismissal is reversed.
Bird, C. J., Mosk, J., Broussard, J., Grodin, J., and Hamlin, J.,* * concurred.
The regulations make this explicit. The state Department of Social Services Manual of Policies and Procedures, section 22-001.4 defines “authorized representative” as “an individual or organization that has been authorized by the claimant... to act for and represent the claimant in any and all aspects of the state hearing . . . .” Section 22-010 provides that when a claimant is represented by an authorized representative, all notices and decisions concerning the hearing shall be furnished to the representative as well as to the claimant.
The most recent justification for the privilege came from the United States Supreme Court in Upjohn Co. v. United States (1981) 449 U.S. 383, 389 [66 L.Ed.2d 584, 591, 101 S.Ct. 677]: “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961). Its purpose is to encourage full and frank communication between attorneys and their clients and [771]thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U.S. 40, 51 (1980): ‘The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.’ And in Fisher v. United States, 425 U.S. 391, 403 (1976), we recognized the purpose of the privilege to be ‘to encourage clients to make full disclosure to their attorneys.’ This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (privilege ‘is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure’).”
As Justice Broussard noted at oral argument, the Legislature could not have intended that the only sound advice the authorized representative could give was, “Don’t talk to me.”
AIso left for the future are questions concerning the scope of the privilege. Answers to such problems will obviously depend, in large part, on the severely limited function of a lay “authorized representative,” acting under section 10950 of the Welfare and Institutions Code.
Assigned by the Chairperson of the Judicial Council.