Tuesday, May 10, 2011
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Court: Firm Not Disqualified by Receipt of ‘Privileged’ Email
By a MetNews Staff Writer
The civil defense firm of LaFollette, Johnson, DeHaas, Fesler & Ames was not subject to disqualification based on its receipt of an allegedly privileged email by a woman suing a client, to that client’s wife, this district’s Court of Appeal has ruled.
In its unpublished decision Friday, Div. Five concluded that Los Angeles Superior Court Judge James Kaddo had not abused his discretion in allowing the firm to remain as counsel for Alan Klass.
Mary Maron filed suit against Klass and a number of other medical providers in 2009, alleging they had been negligent in their treatment of her husband the prior year. She sought damages for her emotional distress and loss of consortium.
After Klass retained LaFollette Johnson, Maron moved for an order compelling opposing counsel to surrender a document, a copy of an email sent by Maron to Klass’ wife, Barbara Klass, an attorney who had previously represented Maron on unrelated matters.
She claimed that an attorney with the firm, Don Fesler, had threatened a malicious prosecution suit based on information in the document and had attempted to coerce Maron into disclosing privileged information.
Fesler also allegedly attempted to prejudice Maron’s prosecution of the case by including descriptions of the document in discovery served on all codefendants and by conducting an investigation to confirm the content of the document.
She quoted portions of the letter from Fesler and a discovery request based on the email, but did not attach copies of the Fesler’s letter or the discovery request to the motion.
Correspondence Recalled
Maron also submitted a declaration in support of her motion, which stated she had reviewed the correspondence discussed in the motion, and that she recalled sending Barbara Klass an email around that date, even though she could not precisely recall the content of the email in question.
She said she had sent the email to inquire about retaining Barbara Klass’s services or seeking her advice on legal matters. It was Maron’s stated intent that this communication be confidential.
With the opposition to the motion to disqualify, Fesler declared that he had not considered the email privileged because it did not disclose information that was the subject of an attorney-client relationship.
He said he had offered to provide Maron’s counsel with the document, but, given that Maron had contended that the email was privileged, he wanted Maron’s consent in writing to its disclosure to her counsel.
After he learned that Maron was contending that the email was privileged, Fesler said he withdrew discovery pertaining to the document. He denied having conducted any investigation based on the email, or having caused any investigation to take place.
Kaddo denied Maron’s motion, and Justice Orville A. Armstrong, in his decision for the appellate court, agreed with Kaddo.
Inadvertent Disclosure
Armstrong noted that Maron’s arguments were based on State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 and Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, which were both disqualification cases involving inadvertent disclosures.
The justice, however, distinguished Maron’s situation from these cases “because we have no evidence that the email was misused in any way, let alone in a way which prejudiced Maron’s case.”
He explained that the “purported quotations in Maron’s motion are not evidence, and even if they were, they are inadequate to show misuse of the information,” and emphasized that exposure to the confidences of an adversary alone, will not warrant disqualification.
Armstrong was joined in his decision by Justice Sandy R. Kriegler and Los Angeles Superior Court Judge Sanjay Kumar, sitting on assignment.
Klass was represented by Don Fesler and David J. Ozeran of LaFollette, Johnson, DeHaas, Fesler & Ames. Marina Del Rey practitioner Ronald L. Nelson was counsel for Maron.
The case is Maron v. Klass, B223301
Copyright 2011, Metropolitan News Company