Tuesday, February 3, 2015
In Legal Malpractice Action…
Suit by One Client Kills Attorney-Client Privilege of Other—C.A.
By a MetNews Staff Writer
A person who sues a former attorney for malpractice strips a jointly represented client of confidentiality as to attorney-client communications in connection with the representation, the Court of Appeal for this district has ruled.
Writing for Div. One, Presiding Justice Frances Rothschild said:
“In a lawsuit between the attorney and one or more of the attorney’s joint clients, based on an alleged breach of a duty arising from the attorney-client relationship, relevant communications between the attorney and any of the joint clients, made in the course of the attorney-joint-client relationship, are not privileged.”
The ruling came in an action in which Lewis Anten, an Encino attorney, is plaintiff. He and Arnold and Lillian Rubin consulted Marvin Gelfand and Allan Kirios of the law firm of Weintraub Tobin Chediak Coleman Grodin concerning advice they had received from tax lawyers. Gelfand and Kirios told them the advice faulty, depriving them of the favorable tax treatment they wanted, and the error could not be corrected.
They recommended suing the former lawyers. Anten and the Rubins did so, and the action is underway in Los Angeles Superior Court against Loeb & Loeb.
Anten also brought suit against the Weintraub firm and others in Anten v. Gelfand; the Rubins did not join as plaintiffs.
When Anten sought, in discovery, communications between the Weintraub firm and the Rubins, the firm resisted based on attorney-client privilege. Los Angeles Superior Court Judge Elizabeth Allen White found the privilege applicable and denied Anten’s motion to compel further responses.
Anten sought a writ, which was granted Friday.
Evidence Code Cited
Rothschild pointed to Evidence Code §958 which provides that there is no attorney-client privilege “as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.”
“The present case falls squarely within the literal terms of section 958. Anten seeks production of communications relevant to issues of breach by Weintraub of duties arising out of the lawyer-client relationship. Thus, under the plain language of section 958, the attorney-client privilege does not apply to those communications. Moreover, although we recognize that, for reasons of public policy, a literalistic application of the statute is not always appropriate…, here both the plain language of the statute and policy considerations lead to the same result.”
She noted that communications between lawyers and clients are only confidential with respect to “strangers,” not vis-ŕ-vis joint clients.
Fundamental fairness, she said, compels application of §958, explaining:
“For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney’s suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client’s suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial—indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client.”
Anten’s action against the Weintraub firm has been stayed since Sept. 10, pending outcome of the writ proceeding.
David B. Parker and William K. Mills of Parker Mills represented Anten. Mills, son of retired Los Angeles Superior Court Judge Billy G. Mills, commented:
“Obviously, we are pleased with the decision. It is an issue of first impression that concisely clarifies an important issue of malpractice law relating to joint clients. The published opinion will now unblock our access to communications between the attorney defendants and the other joint clients and allow the matter to finally proceed to trial.”
Arguing for Weintraub Tobin Chediak Coleman Grodin were Joel E. Boxer, Mark T. Drooks, and David H. Chao of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow.
The case is Anten v. Superior Court, 2015 S.O.S. 667.
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