Wednesday, June 29, 2011
C.A. Rules Attorney’s Spoken Communications Were Privileged
Lawyer Cannot Be Compelled to Answer Questions Regarding Conversations With Colleague, Investigator
By SHERRI M. OKAMOTO, Staff Writer
An attorney cannot be compelled to respond to deposition questions regarding oral communications with other members of her firm about a client matter, this district’s Court of Appeal ruled yesterday.
Div. Three said that the attorney-client privilege and work product doctrine shielded conversations Carlson, Calladine & Peterson LLP associate Melissa Dubbs had with another lawyer at the firm and an investigator retained to assist with the representation of Fireman’s Fund Insurance Company.
Fireman’s Fund had been sued by its insured, Front Gate Plaza LLC, which owned an operated a shopping mall in Lancaster. Front Gate alleged, among other things, that Fireman’s Fund had engaged bad faith in the handling of certain property damage claims.
Sunil Chand, an employee of the company which provided management and accounting services for Front Gate, subsequently contacted CC&P, claiming to be a whistleblower in possession of evidence demonstrating that Front Gate’s insurance claims were fraudulent.
Dubbs and an investigator met with Chand, who delivered documents he claimed evinced his claims. At the request of Dubbs, CC&P reimbursed Chand for his time and expenses in traveling from Los Angeles to San Francisco.
After this meeting, CC&P attorney Robert Peterson advised Front Gate’s counsel that the firm had received 5,450 pages of documents “which, in our opinion, constitute evidence of a criminal conspiracy and crimes on the part of your clients.”
Fireman’s Fund also filed a cross-complaint against Front Gate and others for insurance fraud and conspiracy, supported in part, by a declaration from Chand, which had been drafted by Peterson.
The parties then became embroiled in a protracted discovery dispute over the documents Chand had provided to CC&P, which Front Gate declined to produce and sought to preclude from being used in the litigation. Retired Los Angeles Superior Court Judge Arnold Gold was appointed as a referee to issue recommendations regarding the documents.
Front Gate then sought to depose Dubbs, and requested that she be compelled to answer 10 specific questions to which Fireman’s Fund had objected on privilege grounds. Gold recommended Dubbs be made to answer. Fireman’s Fund then dropped its objections to five of the questions, while asserting the attorney-client privilege and work product doctrine foreclosed Dubbs’ response to the remaining inquiries.
The trial court adopted Gold’s recommendations and findings that the attorney-client privilege protects only communications between an attorney and a client, but not an attorney’s communications with members or agents of her law firm about client matters.
Gold also found that only the qualified work product doctrine was implicated in this dispute because the communications at issue were not reduced to writing and the questions propounded did not seek an attorney’s legal opinions. He said Dubbs’ communications should therefore be divulged to avoid “unfair prejudice” to Front Gate.
In his decision for the appellate court, however, Justice H. Walter Croskey disagreed.
“While most instances in which an assertion of the [attorney-client] privilege is upheld involve communications between an attorney and client,” Croskey noted, “the statutory language is not so narrow.”
The Evidence Code includes within the definition of a confidential communication “a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Croskey also noted that cases have interpreted this statute as including legal opinions that have not been transmitted to the client.
He further emphasized the Evidence Code provides that a “confidential communication” remains protected so long as it is disclosed “to no third person other than those who are present to further the interest of the client…or to those to whom disclosure is reasonably necessary for…the accomplishment of the purpose for which the lawyer is consulted.”
Croskey reasoned that other attorneys in the law firm representing the client and a non-attorney agent retained by the firm to assist in the representation “fall into the category of ‘those to whom disclosure is reasonable necessary.’ ”
Accordingly, the deposition questions posed to Dubbs regarding her evaluation of Chand and his possible usefulness to the case, as expressed to others at the firm, involved confidential communications, Croskey said.
Turning next to scope of the work-product doctrine, Croskey said, Code of Civil Procedure Sec. 2018.030 was “perhaps amenable to the interpretation adopted by the trial court,” but based on legislative history and a comparison to the protections offered by federal law, concluded unwritten opinion work product is shielded under California law.
He posited that it would be “patently absurd to provide a greater protection for written opinion work product than unwritten work product” since “such an interpretation of the privilege would inevitably result in attorneys documenting their every thought (in order to obtain complete protection for their work product) at the expense of higher client bills for the time taken in documentation, and at the risk of malpractice lawsuits if the failure to document an opinion resulted in its being held discoverable.”
Presiding Justice Joan D. Klein and Justice Patti S. Kitching joined Croskey in his opinion.
Rex S. Heinke, L. Rachel Helyar, Shawn Hanson and Maria Ellinikos of Akin Gump Strauss Hauer & Feld represented Firemen’s Fund.
The Los Angeles County Bar Association, Beverly Hills Bar Association, Association of Southern California Defense Counsel, and Santa Clara County Bar Association filed amicus curiae briefs on behalf of the insurer.
Lane E. Bender of Silver & Freedman, Evangeline F. Grossman of Shernoff Bidart Echeverria, Michelle J. Smythe of the Smythe Law Group Inc., and Valerie F. Horn of Valerie F. Horn & Associates served as counsel for the real parties in interest.
The case is Fireman’s Fund Insurance Company v. Superior Court (Front Gate Plaza, LLC), 11 S.O.S. 3422.
Copyright 2011, Metropolitan News Company