Metropolitan News-Enterprise


Monday, October 26, 2020


Page 3


Court of Appeal Reverses Attorney’s ‘Whistleblower’ Judgment


By a MetNews Staff Writer


A $3 million judgment in favor of a whistleblower/attorney who sued the Commission on Teacher Credentialing for retaliation was reversed Friday by the Third District Court of Appeal, which held that the trial judge erred by allowing witnesses to be questioned in a way that would lead a jury to draw negative inferences about the commission’s assertion of the attorney-client privilege.

The opinion by Acting Presiding Justice Harry E. Hull Jr., which was partially certified for publication, reverses a judgment by Sacramento Superior Court Judge David I. Brown based on a jury verdict. Justices Louis Mauro and William J. Murray Jr. joined in the opinion.

At trial, a jury found in favor of plaintiff Kathleen Carroll, who was fired in 2010 by the commission as staff counsel after she exposed a massive backlog of teacher misconduct complaints to the State Auditor’s Office. A jury awarded $2,844,528 in economic and noneconomic damages against the commission and punitive damages against her supervisor, the commission’s assistant chief general counsel, for $130,000 and against the general counsel for $90,000, bringing the total to $3,064,528.

Carroll alleged the commission violated whistleblower protection statutes—Government Code §8547 et seq. and Labor Code §1102.5—after discovering that she had made reports to the Bureau of State Audits in December 2009 and contacted then-Sen. Darrell Steinberg, D-Sacramento, who helped get an audit authorized in May 2010. She was terminated in November 2010.

Hull found Brown’s curative jury instructions, pursuant to Evidence Code §913, were made too late and that his errors “went to the crux of the case.”

He wrote:

“Plaintiff had to show she was terminated because she engaged in whistleblowing, and the inferences counsel invited the jury to make based on the defendants’ exercise of the attorney-client privilege in early June 2010 established the required element. No other evidence made the point as strongly.”

From that, he concluded:

“It is thus reasonably probable that had the errors not been made and the jury not been invited to infer that the defendants agreed to terminate the plaintiff in June 2010, the Commission would have obtained a more favorable verdict.”

Evidence Code §913 provides:

“The court, at the request of a party who may be adversely affected because of an unfavorable inference may be drawn by the jury because a privilege has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.”

Attorney-Client Privilege

Carroll’s counsel questioned witnesses as to why they sought legal advice from the Department of Personnel Administration (“DPA”), which raised objections by the commission based on the attorney-client privilege. Brown overruled most of the objections.

“Here, by questioning the witnesses about their intentions for seeking legal advice in June 2010 and about specific reasons the witnesses may not have been seeking legal advice, plaintiff’s counsel impliedly invited the jury to infer that the witnesses sough legal advice for terminating plaintiff’s employment within two days of learning plaintiff had threatened to contact the state auditor,” Hull said.

He added that closing argument by Carroll’s counsel “exacerbated the harm” by reminding the jury how the commission’s witnesses would not answer questions about privileged documents, effectively arguing the commission lied in testifying it had no specific intent in seeking legal advice from the DPA.

“Counsel’s actions put defendants in an untenable position,” Hull said.

“They could avoid the negative inference raised by counsel’s questions only by disclosing their specific reasons for seeking legal advice, effectively waiving the attorney-client privilege by disclosing the contents of their communication with counsel,” Hull said.

“It was this choice that section 913 was enacted to prevent.”

Jury Instructions

At the close of evidence, Brown’s instructions to the jury included form instructions on the exercise of privilege, stating:

“A witness or party may have an absolute right not to disclose what they told their attorney in confidence because the law considers this information privileged. Do not consider, for any reason at all, the fact that a witness or party did not disclose what they told their attorney. Do not discuss that fact during your deliberations or let it influence your decision in any way.”

The commission argued that Brown should have given curative instructions at the time it exercised its attorney-client privilege.

Hull agreed, concluding there was “good reason” to find the jury ignored Brown’s instructions.

“Because counsel had been allowed to ask so many questions about the defendants’ intentions for seeking and not seeking legal advice, the risks that the jury would ignore the eventually instruction was high,” he said.

“Although section 913 does not state when a court must give the mandated instruction, as this case demonstrates it is far better practice to give it when privilege questions arise during the evidentiary phase of the trial as well as with the other instructions after the evidence has been presented to avoid the problems encountered here.”

The case is Carroll v. Commission on Teacher Credentialing, 2020 S.O.S 4962.


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