In Re Gray

Opinion

GARDNER, P. J.

J.— In this case we hold that the attorney-client privilege is waived as to matters put in issue in habeas corpus proceedings where the competency of defendant’s trial attorney is at issue.

Georgia Cassidy was found guilty of first degree murder and of conspiracy to commit extortion. She filed a petition for writ of habeas corpus in the trial court alleging petitioner had failed to act in a manner to be expected of a reasonably competent attorney by failing to offer potentially meritorious defenses of diminished capacity or insanity. At the evidentiary hearing Georgia refused to waive the attorney-client privilege and objected to the petitioner testifying. Petitioner then declined to answer questions. The trial court found him in contempt. These proceedings resulted.

Evidence Code section 958 seems fairly clear on this subject: “There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the attorney-client relationship.”

The charge of inadequate representation clearly involves a charge of a breach of a duty arising out of the attorney-client relationship.

The comment of the Law Revision Commission is pertinent: “[Tjhus, for example, if the defendant in a criminal action claims that his lawyer did not provide him with an adequate defense, communications between

[616]

the lawyer and client relevant to that issue are not privileged.” (See also

People

v.

Morris

(1971) 20 Cal.App.3d 659, 663-664 [97 Cal.Rptr. 817]; Witkin, Cal. Evidence (2d ed. 1966) § 824; 31 Cal.Jur.3d, § 441, pp. 589-590.)

Petitioner indicates that

he

did not waive the privilege. The privilege belongs to the client, not the attorney. (Evid. Code, §§ 953, 954.)