Thursday, February 26, 2004
Lawyer Properly Barred for Using Adversary’s Document—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A San Bernardino Superior Court judge properly disqualified an attorney for a personal injury plaintiff after the lawyer obtained and used a document detailing conversations between defense lawyers and their expert witnesses, the Fourth District Court of Appeal ruled yesterday.
Los Angeles attorney Raymond Paul Johnson violated ethical standards governing the use of purloined or inadvertently obtained opposing attorney work product, Justice Barton Gaut wrote for Div. Two. Retired Superior Court Judge Ben T. Kayashima, sitting on assignment, was correct in barring Johnson from the case because no lesser sanction would have undone the damage, Gaut concluded.
Johnson was representing several plaintiffs in a sports utility vehicle rollover case. The vehicle overturned on Interstate 10 in 1998, and all of the passengers were seriously injured or killed.
Defendants in the case included Mitsubishi Motors Corporation and the state Department of Transportation. In September 2002, Mitsubishi moved to disqualify Johnson for using confidential and privileged materials prepared by defense counsel.
The document in question was a 12-page memo in the form of a dialogue between the lawyers and the experts, with handwritten notes added by defense lawyer James J. Yukevich of the Los Angeles firm of Yukevich & Sonnett.
Defense lawyers claimed that Johnson picked up and copied the document after it was inadvertently left in the room after a deposition, then made additional copies which were sent to other lawyers and to the plaintiffs’ experts.
Johnson claimed the document was accidentally delivered to him by the court reporter. Yukevich did not realize that Johnson had the document until after Johnson had used it to impeach a defense expert at a deposition that Yukevich did not attend.
Kayashima found that Johnson had obtained the document inadvertently, but agreed with Yukevich that Johnson had an ethical duty to advise defense counsel that he had received it. The document was attorney work product, the judge concluded, since it had been prepared for counsel’s personal use.
Gaut, writing yesterday for the Court of Appeal, said the trial judge did not abuse his discretion.
The justice concluded that while the document was not privileged as an attorney-client communication, it was work product.
“Although the document was written in dialogue format with information provided by Mitsubishi experts, the...evidence shows that the document was not simply an expert’s report, writings, declaration, or deposition testimony,” the justice wrote. “Instead, the document contained Yukevich’s thoughts and impressions concerning the evidence and the case.”
Gaut also rejected Johnson’s contention that he was duty-bound to use the inadvertently obtained document to his client’s advantage.
The jurist cited State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644. That ruling adopted an American Bar Association ethics opinion holding that attorneys who receive apparently privileged material must not read or use the documents beyond the extent necessary to determine whether privilege exists before notifying the opposition and resolving the issue by agreement or seeking the guidance of the court.
There is no reason why work product should be treated differently than attorney-client communications, the jurist said.
In concluding that disqualification was a reasonable sanction, Gaut noted that Johnson not only reviewed the document, he “fully exploited the document’s potential to damage the defense case.” The evidence, he said, “shows that Johnson not only failed to conduct himself as required under the State Fund case, but also acted unethically in making full use of the confidential document.”
Nor could the damage be undone, the justice explained, because the information “inevitably would have been used in preparing for trial.”
Johnson’s claim that it was proper to use the document as an antidote for the false testimony by defense experts in earlier depositions does not alter the result, Gaut concluded.
“Courts do not make exceptions based on the content of the writing,” he said. “[W]hile the goal of justice is to unearth the truth, this goal cannot be achieved through means that deprive its participants of a fair process.”
The case is Rico v. Mitsubishi Motors Corporation, 04 S.O.S. 900.
Copyright 2004, Metropolitan News Company