Metropolitan News-Enterprise


Wednesday, April 30, 2003


Page 1


Lawyers Held Not Liable for Disclosure of Mental Health Records

C.A. Upholds Dismissal of Suit Against Former Supreme Court Justice Armand Arabian, Two Others


By KENNETH OFGANG, Staff Writer/Appellate Courts


An attorney who obtains and discloses mental health records under court order cannot be held liable for the patient’s loss of privacy, this district’s Court of Appeal ruled yesterday.

Div. Seven affirmed an order by then-Los Angeles Superior Court Judge Judith Ashmann-Gerst, since elevated to the Court of Appeal, dismissing Katherine Mansell’s suit against former state Supreme Court Justice Armand Arabian and veteran Long Beach attorneys Edward P. George Jr. and Douglas W. Otto.

The appellate panel disagreed with the trial judge in part, saying the litigation privilege did not apply. But the justices agreed with the attorneys that they could not be held liable for using the discovery process as prescribed by law.

The three lawyers were retained by Jeffrey Manning Carlton to represent him on drug charges, as well as on allegations he assaulted and battered Mansell. In representing Carlton, they subpoenaed Mansell’s medical and psychiatric records from the Veterans Administration Hospital.

Production Ordered

Informed by the hospital that it needed a judge’s order before it could release the records, the attorneys obtained an order from Los Angeles Superior Court Judge Richard Lyman, for production of “medical described in the attached subpoena duces tecum.”

The hospital then sent the records, under seal, to the court, which granted access to the prosecution and the defense. Prosecutors later moved that all of the records be returned to the court, and Judge William T. Garner—since retired—granted the motion on the ground that the request was overbroad.

Garner explicitly rejected, however, the prosecution’s contention that the defense lawyers had “duped” Lyman into granting the original order.

Mansell then sued, accusing the lawyers of violating her constitutional right to privacy by reading her confidential mental health records and disseminating them to other members of the defense team. Ashmann-Gerst sustained a demurrer.

Justice Earl Johnson Jr., writing for a divided panel, said the trial judge reached the correct result. There cannot be liability for reading and disseminating records that were obtained pursuant to a court order and released by a court, Johnson concluded.

The trial judge erred in relying on the litigation privilege, the justice explained, because there was no claim that the information was used in a judicial proceeding. The litigation privilege applies only to “communicative acts,” Johnson said, while it was the “noncommunicative conduct” of the lawyers in reading the records that the plaintiff complained of.

Court’s Reasoning

But confidential and privileged materials are routinely obtained, read, and disseminated by lawyers as part of litigation, the justice pointed out, without those lawyers incurring liability. And no case, Johnson said, has ever held that an attorney or other professional can be held liable for invasion of privacy based on the disclosure of privileged information where the disclosure was permitted by a court.

Johnson distinguished Susan S. v. Israels (1997) 55 Cal.App.4th 1290, which allowed the plaintiff to sue an attorney who obtained her records directly from a treatment facility and read them aloud while cross-examining her at the trial of the man she accused of sexual battery.

The lawyer in that case, unlike Arabian and his colleagues, never attempted to obtain a judicial determination that he was entitled to the documents, Johnson—who wrote the 1997 opinion—said.

Justice Fred Woods concurred, but Presiding Justice Dennis Perluss dissented.

Perluss said Mansell should, based on the rationale of Israels, be permitted to amend her complaint to allege that the attorneys deliberately misled Lyman into thinking that only medical records, as distinct from mental health records, were being sought.

The case is Mansell v. Otto, B155418.


Copyright 2003, Metropolitan News Company