Wednesday, March 25, 2026

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Court of Appeal:

Error to Deny Disqualification Due to Intentional Disclosure

Opinion Says Rule That Lawyers Must Refrain From Examining Materials Protected by Privilege Inadvertently Disclosed Applies Even if Matter Was Sent to Then-Employee on Purpose Before Present Litigation Erupted

By Kimber Cooley, associate editor

Div. Three of the Fourth District Court of Appeal held yesterday that one of its members, then-Orange Superior Court Judge Nathan R. Scott, erred in denying a motion seeking the disqualification of a law firm based on the lawyers’ detailed review of emails protected by the attorney-client privilege that were intentionally sent to their client while she was working for the opposing party.

Reasoning that it was an abuse of discretion to rely on the purposeful nature of the disclosure in denying the request, the court announced that the judicially-created rule that lawyers are to refrain from in-depth review of privileged materials that are inadvertently shared applies with equal force when an email was intentionally sent to an officer of the company who proceeds to forward it to a personal account and later deliver it to her own attorney.

At issue is the applicability of a rule established by the 1999 decision by Div. Four of this district’s Court of Appeal in State Compensation Insurance Fund v. WPS Inc., which declares:

“When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege…and where it is reasonably apparent that the materials were provided…through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged.”

Subsequent California Supreme Court jurisprudence establishes that disqualification is an available remedy for a violation of the rule.

Intentional Disclosures

Justice Thomas A. Delaney authored yesterday’s opinion, saying:

“A person who receives an attorney-client privileged communication because they are within the scope of those who may receive it without waiving the privilege may not thereafter use it in their individual capacity without the privilege holder’s authorization and claim to be an intended recipient for purposes of an attorney disqualification analysis. Concluding otherwise would encourage the unauthorized disclosure of attorney-client privileged communications in situations where there is, at minimum, a substantial question whether the privilege holder has waived the privilege.”

Acting Presiding Justice Maurice Sanchez and Justice Martha K. Gooding joined in the decision.

The question arose after Guardian Storage Centers LLC filed a complaint against its former chief operating officer, Julie Simpson, in October 2023, asserting breaches of contract and of fiduciary duty, among other claims, based on allegations that she broke confidentiality agreements by forwarding to her personal email account more than 20 emails in the months leading up to her June 2023 termination and refused to return company-owned property.

Retaliation Asserted

Simpson cross-complained against her former employer, claiming that Guardian’s chief executive officer, John Minar, sexually harassed her over the course of her 14-year employment and that she was retaliated against after she raised hostile-work environment concerns based on complaints from multiple employees.

In March 2024, several other former employees, Tracie Dotterer, Gustavo Amezola, and Rhiana Davis, filed suit against Guardian, alleging retaliation, harassment, and wrongful termination claims among other causes of action; Guardian and Minar cross-complained based on similar claims as they had asserted against Simpson.

All of the former employees retained the Calabasas-based firm, Aarons Ward. In June 2024, Guardian and Minar moved to disqualify the firm in both actions, citing three emails Simpson had previously shared with her lawyers.

They argued that the messages were clearly privileged, noting that they discussed legal issues involving employee claims and bore a notification containing a confidential designation as well as a signature identifying the sender as in-house counsel for the company.

In late 2024, Scott concluded that the emails were protected by the attorney-client privilege but denied the disqualification requests, indicating that he found it significant that Simpson was the intended recipient of the emails.

Sanctity of Privilege

Noting that “an opposing attorney who fails to take necessary steps geared toward preserving the sanctity of an attorney-client privileged communication may be disqualified from further participation in litigation,” Delaney declared that the “emails are protected” and rejected arguments that the privilege was waived. He wrote:

“Adopting respondents’ argument would mean that whenever a party sues another for improperly taking attorney-client privileged documents, the party would be deemed to have waived the privilege. Such a result runs contrary to the law’s deeply rooted protection of attorney-client privileged matters and is unsupported by any of the authority respondents cite.”

Turning to the obligations on the Aarons Wade attorneys, he remarked:

“Although we find State Fund factually distinguishable in certain respects, we conclude its requirements must apply equally to situations like the one before us.”

Equal Force

Saying that the “concepts underlying” the reasoning of State Fund “apply with equal force in the circumstances before us,” he opined:

“A business entity should not enter the attorney-client relationship fearful that a covert, intentional wrongful act by an employee could result in the waiver of privileged information or the retention of the privileged information by an adversary who might abuse and disseminate the information with impunity. In addition, an attorney does not respect the interests of fellow members of the bar, the judiciary, and the administration of justice when they receive what appears to be an attorney-client privileged communication that was impermissibly obtained and thereafter fail to take action that would allow the privilege holder to protect its privileged nature.”

Acknowledging that “Simpson and Dotterer were, in some sense, intended recipients of the emails,” he found significant that “they received them in their capacity as executives of Guardian, not in their individual capacities.”

Delaney concluded:

“Because the trial court erroneously found the State Fund rule inapplicable, made findings unsupported by the evidence, and failed to appreciate the full scope of the future prejudice factor of the disqualification analysis, we conclude the denial of disqualification was an abuse of discretion….[W]e remand the matter to the trial court so that it may reconsider Guardian’s motions in accordance with the proper legal standards.”

The case is Guardian Storage Centers LLC v. Simpson, G064847.