ETHICS QUARTERLY

A Service of the SDCBA Legal Ethics Committee

October 2007   Vol. 4, No. 3

 

INTRODUCTION

This edition of Ethics Quarterly covers cases from June 16, 2007 through September 15, 2007. Committee Members David McGowan, Ed McIntyre, Peggy Onstott, and Committee Chair Wendy Patrick Mazzarella prepared this edition. McGowan served as the Coordinating Contributor and Committee Member Daniel E. Eaton prepared the Commentary.

On October 10, 2007 from 6:00 p.m. – 8:00 p.m. at the Bar Center, the Ethics Committee will present a program called “Internal Investigations: Navigating the Ethical Minefield.” Panelists include Michael Attanasio, Jim Lyons, David McGowan, Morgan Miller, and Michael Pancer. Attendees will earn 1.5 hours of MCLE credit in legal ethics. Please go to www.sdcba.org to register for this program.   

Comments or inquiries about the Ethics Quarterly should be directed to Committee Chair Wendy Patrick Mazzarella (wendy.patrick@sdcda.org).

 

CASE NOTES

 

4.3.1

Evid. Code §1115, et seq.: Mediation Confidentiality

 

Case:

Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137

 

Issue:

 

In a legal malpractice action claiming that an attorney cut the client’s settlement demand by more than half without authorization, does the statutory confidentiality that protects mediation-related communication, bar the former client’s discovery of all mediation briefs, including the one prepared by his own lawyer, and e-mails sent the day before the mediation that quoted from a mediation brief?

 

Holding:

 

Yes.  The Court of Appeal issued a writ of mandate directing the trial court to prohibit disclosure of the mediation briefs and e-mails between client’s counsel and opposing counsel that quoted from the mediation brief filed by opposing counsel that referred to a lowered settlement demand. According to the Court of Appeal, the California Supreme Court has made it clear in Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 and other cases that there are no exceptions to strict mediation confidentiality, even where the result seems unjust. “The Supreme Court has repeatedly resisted attempts to narrow the scope of mediation confidentiality. The court has refused to judicially create statutory exceptions to the statutory scheme, even in situations where justice seems to call for a different result.” (Id. at 152.)

The Court of Appeal acknowledged that preventing the plaintiff “from accessing mediation- related communications may mean he must forgo his legal malpractice lawsuit against his own attorneys.” (Id. at 162.)

The Court of Appeal was unhappy with the effect of its ruling. “The stringent result we reach here means that when clients, such as [plaintiff], participate in mediation, they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. . . . We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.” (Id. at 163, footnote omitted.)

The Court held that plaintiff was entitled to discovery of communications between plaintiff’s attorney and opposing counsel in which he purportedly lowered the settlement demand. Plaintiff’s former attorney had not met his burden of showing that those communications were linked to the mediation “or that it [was] anything other than expected negotiation posturing that occurs in most civil litigation. . . . All conversations between the parties are not protected by mediation confidentiality simply because the conversations might have occurred temporally before a scheduled mediation.” (Id. at 160-161. See also Evid. Code §1120(a), evidence otherwise admissible or discoverable outside of mediation not rendered inadmissible or non-discoverable “solely by reason of its introduction or use in a mediation. . . .”)

Court concludes: “Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to permit countervailing public policies be considered.” (Id. at 164.)

4.3.2

Fee Recovery: Business & Professions Code §6147

 

Case:

Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257

 

Issue:

Was a law firm entitled to recover reasonable value of its services to former client, the former manager of boxer Sugar Ray Leonard, who obtained settlement days after firing the firm from representing the manager in action against an infomercial producer, where: (1) client discharged the firm prior to recovery; (2) agreement specified hourly rate to be paid (multiplied by time spent) in the event of termination; and (3) attorneys involved kept no time sheets, but testified as to approximate time spent on matter?

 

Holding:

Yes. Attorneys need not present billing records to substantiate fee claims; sworn testimony was a sufficient basis for a jury finding on the time reasonably spent on the matter. (Id. at 269-271; 273-274.) Expert testimony about the reasonableness of the time spent also was appropriate. “Because evidence and analysis of all” the factors involved in determining the reasonableness of the fees claimed “can be a formidable undertaking, expert testimony in a quantum meruit action for attorney fees is appropriate to assist the fact finder.” (Id. at 272, citations and internal quotation marks omitted.) Business and Professions Code section 6147(a) sets forth the requirements of a contingency fee agreement. Section (b) of 6147, however, renders the agreement voidable, but still gives the attorney the right to a “reasonable fee.”

 

Note:

 

The client had argued the firm forfeited any right to a fee by representing parties with conflicting interests in the underlying litigation, namely both the manager and Sugar Ray Leonard, in violation of RPC 3-310(C). The Court stated that “[a]lthough the breach of a rule of professional conduct may warrant a forfeiture of fees, forfeiture is not automatic but depends on the egregiousness of the violation.” (Id. at 278.) The Court found no actual conflict, and that the firm dealt adequately with any potential conflict by advising the client of such potential conflict, and having him acknowledge in writing his ability to consult separate counsel on that issue. Under the circumstances, the trial court did not abuse its discretion in rejecting the client’s argument.

 

4.3.3

Rule 3-310: Avoiding Representation of Adverse Interests

 

Case:

Cargill, Inc. v. Budine (E.D.Cal.) 2007 WL 1813762

 

Issue:

Three lawyers represent a class suing a company on a product liability theory. Employees of the company and an affiliate, who have knowledge of the facts of the class action, and one of whom had access to privileged communications about the defense of the class action, leave the company to form a competing firm. The company sues them on trade secret/breach of duty theories. May class counsel represent them in their defense against the company’s suit?

 

Holding:

No.. Disqualification ordered. The Court found it had inherent power to disqualify counsel based on an appearance of impropriety. It found that the Eastern District rules allowed it to consult the Model Code of Professional Responsibility, which includes the appearance of impropriety standard, even though the Model Code has been superseded in most jurisdictions by the Model Rules of Professional Conduct, which rejected that standard. (Citing In re AFI Holding, Inc., 355 B.R. 139, 153 n. 15 (B.A.P. 9th Cir.2006)). The Court held that the high position one of the defendants held at the company, and that defendant’s participation in privileged conversations concerning the class action, required the court to take action to protect privileged communications. The Court also noted that counsel had access, through discovery in the class action, to information the company claimed as trade secrets to which the defendants were not entitled. 

Notes:

The defendants argued that ex parte contacts with former employees do not violate California Rule of Professional Conduct 2-100. The Court found that defense irrelevant because lawyers making such contacts may not seek privileged information, receipt of which was at issue. The Court presumed the defendants had conveyed such information to counsel.

The plaintiff (former employer) argued that defense counsel might have violated California Rule 3-310(E). The Court found the plaintiff had no standing to assert that claim. The Court also held the California defendants’ informed consent to the representation dispensed with the issue.

 

4.3.4

Lawyer Referral: Business & Professions Code §6155

 

Case:

Hyon v. Selten (2007) 152 Cal.App.4th 463

Issue:

Is a person who provides litigation support services under a contract that is illegal in part under Business and Professions Code section 6155, because it awards that person a contingency fee on any recovery in exchange for referring the client to an attorney, entitled to the value of the lawful services rendered to the client?

 

Holding:

Yes.  Such a firm may recover only the reasonable value of lawful services rendered under quantum meruit up to the amount plaintiff would have received under the contingent fee agreement. (Id. at 471-472, citing Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 463 and others.) Plaintiff “cannot recover for the reasonable value of his unlawful attorney referral services, his unauthorized practice of law (if any), or other unlawful conduct (if any). But he may recover the reasonable value of the lawful work he performed.” (Id. at 472, footnote omitted.)

 

 

4.3.5

Rule 1-400: Attorney Solicitation

 

Case:

DeFazio v. Hollister (E.D.Cal.) 2007 WL 1879720

 

Issue:

Is a federal district court warranted in granting a motion in an ERISA action to preclude further solicitations of defendant’s employees by plaintiff’s counsel, absent prior court approval, where two unsolicited letters misstated the extent of plaintiff’s counsel’s experience in handling such matters and the stage of the pending litigation?

 

 

Holding:

No.  The Court found its inherent power extended to disciplining counsel for case-related conduct outside the court, but held that such power should be used “with restraint and discretion.” (Id. at *2.) The Court found the State Bar was better situated to interpret and enforce its rules, and that to grant the motion would be to undertake editorial supervision of counsel’s solicitations. “This the court will not do.” (Ibid.)  

 

 

4.3.6

Rule 3-300: Liens; Contingent Fees

 

Case:

In re Popov (N.D. Cal.) 2007 WL 1970102  

Issue:

Is an attorney’s lien against a client for fees and costs incurred in representing a client in a dispute with another party over the ownership of a Barry Bonds-hit baseball enforceable, notwithstanding Cal. R. Prof. Conduct 3-300, where: (1) the agreement with the client does not warn the client that the agreement’s lien provision might delay the client’s receipt of money; (2) the agreement does not define “lien” and (3) the lien provision was allegedly “buried” on the second page of a four-page agreement?

 

Holding:

Yes. The Court found that the language of Rule 3-300 requiring an explanation of the “transaction or acquisition [of an adverse interest] and its terms” did not cover the risk of delayed payment. (Id. at *3.) The Court rejected the second argument because “lien” is a “commonly-used term” and the Rule does not require definitions. (Ibid.) It rejected the third argument because the words of the lien provision were on page two of a four-page contract, were in the same size font as other provisions, and because the client had actual notice of the term, which he discussed with an associate of the firm. (Ibid.)

4.3.7

Attorney-Client Privilege, Common Interest Exception to Waiver

 

Case:

Nidec Corp. v. Victor Co. of Japan (N.D. Cal.) 2007 WL 1994171

Issue:

Are a company’s representative’s communications to counsel for a potential buyer of the company, specifically of litigation abstract prepared before the instant patent infringement litigation, subject to the common-interest exception to the waiver of attorney client privilege?

 

Holding:

No.  “[T]he disclosures which concern the instant litigation, to be protected, must be made in the course of formulating a common legal strategy.” (Id. at *4, emphasis in original, citations and internal quotation marks omitted.) While sharing the litigation abstract may have been designed to help convince prospective bidders to buy the majority of the selling company’s shares, it “did not further a common legal strategy in connection with the instant litigation. It was not, for instance, a communication coordinating the defense of this case. . . . Thus, it was designed not to further a joint defense in this litigation, but to further a commercial transaction in which the parties, if anything, have opposing interests.” (Ibid.)

The defendants had argued the exception extended to disclosures by a seller to prospective bidders. They relied on Hewlett Packard v. Bausch & Lomb, Inc. (N.D. Cal. 1987) 115. F.R.D. 308, a case involving disclosures to a prospective buyer about pending patent litigation. The Nidec Court distinguished Hewlett Packard on the ground that the interest at issue there involved expected joint litigation, with the seller defending allegedly infringing sales before the transaction date and the buyer defending such sales thereafter. The Court found no evidence of such a joint legal interest in the case before it, and it rejected any extension of Hewlett Packard to cases involving only joint commercial, rather than legal, interests.

 

 

Note:

The Court noted that waiver of privilege does not imply waiver of the protection of the work product doctrine. Disclosure of work product to a third party only amounts to waiver if that disclosure gives an adverse party access to the information. (Id. at *5.).

 

4.3.8

Dual Representation in Administrative Proceedings

 

Case:

Morongo Band of Mission Indians v. State Water Resources Control Board (2007) 153 Cal.App.4th 202

Issue:

Must an attorney be disqualified from prosecuting a license revocation of a water rights holder before the State Water Resources Control Board where the same attorney acts as a legal advisor to the Water Board in an unrelated administrative proceeding?

 

Holding:

Yes.  The agency argued that disqualification would be proper only if the defendant in the prosecution (plaintiff in the writ action) could show that counsel’s joint representation created actual bias against the defendant. The Court rejected that claim in favor of a bright-line rule. “[P]ermitting an attorney to occupy the dual role of advocate in one proceeding and advisor to the decision maker in another creates an intolerable risk of bias and thus fails to comport with principles of due process.” (Id. at 210.)

The Court rejected as unwise an inquiry into the “totality of the circumstances” based on the depth and scope of the attorney’s work in the ostensible unrelated administrative proceeding. “A firm rule against a single attorney concurrently carrying out both functions is essential not only as a practical matter, but to avoid unseemly judicial inquiry into attorney-client communications and attorney work product materials” related to the ostensibly unrelated administrative proceeding “that might otherwise be privileged.” (Id. at 214.)

 

Note:

One Justice dissented. Even if a bright line rule were appropriate, he wrote, “it does not extend to situations where an attorney serves as an advocate and an adviser in different matters, even simultaneously. Rather, in such situations, the question as to whether there is evidence of actual bias or an unconstitutional probability of bias must be based on an analysis of the totality of the circumstances, keeping in mind the presumption that administrative adjudicators will judge a particular controversy fairly on the basis of its own circumstances.” (Id. at 226, Robie, J., dissenting.)

 

 

4.3.9

Rule 3-310: Avoiding Representation of Adverse Interests

Case:

Hayes v. City and County of San Francisco (N.D.Cal.) 2007 WL 2021865

 

Issue:

Must an entire City Attorney’s office be disqualified from representing the city in a wrongful termination action brought by a former city social worker who consulted the office about his personal liability on a bail bond he signed on behalf of a former homeless man later placed in a drug treatment facility who escaped the facility?

 

Holding:

No.  The plaintiff-former employee provided the City Attorney’s office with information regarding a personal matter related to his work for the City, but the City Charter prevented the office from undertaking the representation, and the City declined to represent the employee after reviewing documents related to the employee’s liability on the bond. The plaintiff therefore failed to establish attorney-client relationship with the City. (Id. at *5.) In any event, the court ruled the bond matter was not substantially related to the wrongful termination action. (Id. at *6-7.)

 

4.3.10

Rule 3-310: Avoiding Representation of Adverse Interests

Case:

In re Jasmine S. (2007) 153 Cal.App.4th 835

 

Issue:

May counsel from separate units of a public law agency be disqualified from representing two children in a dependency proceeding because of the appearance of a conflict of interest absent evidence of a substantial conflict of interest between the siblings?

 

Holding:

No. The juvenile court erred in ruling that the appearance of a conflict is enough to disqualify counsel. (Id. at 843.) Neither are “systemic” or “structural” conflicts enough. “A conflict arises when the circumstances of a particular case present “a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person.” (Id. at 843-844.)

 

 

Notes:

This case is one of a series of appeals concerning the Children’s Law Center of Los Angeles. On July 17, 2007, the Supreme Court granted review of the first case in the series, In re Charlisse C. (See EQ 4.2.5 and Important Update below).

The Court of Appeal held the Center had standing to appeal, though it was neither a party nor a disqualified lawyer, because it was aggrieved by the order. It has a continuing contractual obligation to provide counsel in such cases, an obligation that can only be fulfilled if it avoids conflicts. Its interest, therefore, was neither nominal nor remote.

Justice Armstrong’s concurrence distinguished Jasmine S from Charlisse C on the ground that Jasmine S involved the contemporaneous representation of siblings whose interests were not adverse while Charlisse C involved the successive representation of a mother and child.

 

4.3.11

Anti-SLAPP, CCP §425.16

Case:

Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347

 

Issue:

Are a law firm’s claims against its former client for fraud, negligent misrepresentation, breach of contract, and breach of the covenant of good faith and fair dealing subject to an anti-SLAPP motion where those claims are based on the client’s efforts to litigate recovery of fees the firm allegedly wrongfully withheld from the client as part of a judgment the firm recovered on the client’s behalf?

 

Holding:

Yes.  The client’s petitioning for sums the firm retained as fees in a collection matter on behalf of the client was protected activity under the anti-SLAPP statute. Since that activity was at the heart of the firm’s claims against the client, the claims were to that extent subject to a motion to strike. The firm’s distinct claims based on the client’s failure to pay fees incurred in other matters were not subject to dismissal.

The Court rejected the client’s argument that those claims should be dismissed because the firm had not given proper notice of the client’s right to arbitration under the Mandatory Fee Arbitration Act (“MFAA”). The client had waived her rights under the MFAA by suing the firm and the fees the firm sought were properly included in this action. In addition, dismissal for failure to give notice under the MFAA is discretionary and the trial court was not found not to have abused its discretion in declining to do so.

 

4.3.12

Rule 3-310: Avoiding Representation of Adverse Interests

Case:

In re Zamer G. (2007) 153 Cal.App.4th 1253

 

Issue:

Is disqualification of counsel warranted where counsel represents four siblings in a dependency proceeding of a custodial father, two of whom claim to have been abused by the father of the other two, where these other two were preverbal and showed no signs of physical abuse?

 

Holding:

Yes. The Court of Appeal held that California Rule of Court 5.660(c) requires the separate representation of siblings “if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case-not just the potential for conflict that inheres in all multisibling dependency cases-present a reasonable likelihood an actual conflict will arise.” It further held that “under rule 5.660(c), a conflict becomes `actual’ when an attorney's duties of loyalty, confidentiality, and zealous advocacy require the attorney to take or to refrain from taking some action to serve the “best interests” of one minor client, but the attorney is unable to do so without violating a duty owed by the attorney to another client; or when the attorney is unable independently to evaluate the best interests of each minor client because of the minors' conflicting interests.” (Id. at 1267.)

Substantial evidence showed an actual conflict among the four siblings represented. If counsel attempted to argue for reunifying two of his clients with their father, he would have had to contest the expected testimony of his other two clients, who claimed the father abused them. (Id. at 1273.)

 

Note:

The court took care to note that, because dependency “[c]ounsel's paramount duty [is] to serve the minor's best interests, rather than the minor's wishes,” there is no conflict among children if their best interests do not conflict. (Id. at 1265.) It follows, the court held, that dependency counsel may not face a conflict of interest in circumstances that would create a conflict in a different context. (Id. at 1266.) The Court nevertheless held it would have been reasonable for the trial court to conclude that counsel could not evaluate the best interests of each of his clients while in possession of confidential information from two of them inculpating the father of the other two. (Id. at 1273.)

In an unpublished portion of the opinion, the Court of Appeal reversed the trial court’s disqualification of a different unit of the center. That order presumably rested (neither the transcript nor the minute order specified a basis) on that court’s structural conflict analysis, disapproved in Jasmine S. 

4.3.13

Rule 3-310(C) Representation of Adverse Interests; Anti-SLAPP, CCP §425.16

Case:

Freeman v. Schack (2007) 154 Cal.App.4th 719

 

Issue:

Must a special motion to strike a complaint under the Code of Civil Procedure section 425.16 (anti-SLAPP, strategic lawsuit against public participation) be upheld where plaintiff(s) sued attorney defendant/respondent for breach of contract, professional negligence and breach of fiduciary duty based on allegations that the attorney had entered into an attorney-client relationship with them but abandoned them to represent clients with adverse interests in the same and different litigation and attorney moved to strike the complaint on the basis that all causes of action were from petitioning activity, and plaintiff(s) did not demonstrate a probability of prevailing?

 

Holding:

No.  The basis of the conduct underlying the causes of action is the attorney’s activity in representing a party with interests adverse to plaintiffs, in violation of the duty of loyalty owed to the plaintiffs. The attorney’s protected activity of filing and settling litigation was incidental to the plaintiffs’ allegations of breach of contract, negligence in failing to properly represent their interests, and breach of fiduciary duty arising from representation of clients with adverse interests.

 

 

Note:

Plaintiffs argued that their claim was based on the defendant’s violation of Rule 3-310(C) of the State Bar Rules of Professional Conduct, which is not a protected, constitutional activity. The Court of Appeal agreed and in prior cases has pointed out that the breach of the duty of loyalty does not occur when the attorney steps into court to represent a new client, but when he abandons the old client and fails to maintain loyalty and confidences. (Benrasa v. Mitchell Silberberg, & Knupp (2004) 123 Cal.App.4th 1179, 1186-1187, 1189.) In addition, attorney malpractice does not arise out of the protected activity of court proceedings, but by the negligent failure to protect client rights in the proceedings. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 627-631.) In cases where protected and non-protected activities are alleged in the same cause of action, the cause of action is not subject to a special motion to strike under section 425.16 if the protected activities are incidental or collateral to the non protected activities. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672.)

4.3.14

Arbitrator’s Duty to Disclose

Case:

New Regency Productions v. Nippon Herald Films (9th Cir. 2007) __ F.3d __, 2007 WL 2472467

 

Issue:

Must an arbitration award be vacated based on the neutral arbitrator’s failure to disclose that during the arbitration proceeding he began to work as a senior executive with a company negotiating with a production executive of one of the parties to the arbitration to finance and co-produce an important motion picture?

 

Holding:

Yes.  The lack of evidence of the attorney/arbitrator’s actual knowledge of his new employer’s ongoing negotiation does not prevent a finding of “evident partiality” as the arbitrator had a duty to investigate possible conflicts with the new employment and disclose that employment to the parties.

“Evident partiality” is distinct from actual bias and does not require actual guilt of fraud or bias; the arbitrator’s failure to disclose any dealings that may create an impression of bias is sufficient to support vacatur. The arbitrator in this case had disclosed multiple prior dealings with both sides in various capacities at the start of the proceeding. After the conclusion of the arbitration, he testified in an unrelated proceeding he had been employed during the pendency of the arbitration by a company negotiating with one of the parties. Argument was made that evidence did not show the arbitrator had actual knowledge of the facts he failed to disclose, but this was contrary to a previous decision that the lack of actual knowledge does not excuse non-disclosure where the arbitrator had a duty to investigate, and thus has constructive knowledge. (citation omitted)

 

 

Note:

The Federal Arbitration Act (FAA) 9 U.S.C. § 2, et seq was the governing law, rather than the California law the district court applied.

4.3.15

Judicial Recusal, 28 U.S.C. § 455

Case:

U.S. v. Holland (9th Cir. 2007) __ F.3d __, 2007 WL 2472543

 

Issue:

Must a judge recuse himself from a case after receiving at least one threatening message on his home telephone from the defendant?

 

Holding:

No.  The judge reasonably evaluated the defendant’s threatening phone message as an attempt to manipulate the court system, which did not require his sua sponte recusal. Though a judge is duty bound to sit in judgment in all cases that come before him, an exception occurs in cases where impartiality may be reasonably be questioned, as set out and enumerated in 28 U.S.C. § 455(a)-(b), and where recusal is required.

However, if a judge feels his personal safety or the safety of his family has been threatened and is in danger, he may always recuse himself sua sponte from the matter at his discretion. The judge’s decision in such a matter is not generally reviewed.

In this case, the Court was asked the narrow question of when the judge has an obligation to recuse himself sua sponte in response to threats made against him, his family, or associates, under 28 U.S.C. § 455, even if the judge would prefer to continue to work on the case. Section 455(a) requires disqualification where a judge’s impartiality may reasonably be questioned, or an appearance of impartiality is created even though no actual partiality exists or when a reasonable person could perceive a significant risk that the judge will resolve the case on a basis other than the merits.

Recognizing each case is fact driven and involves particular subtleties, the court suggested a three step process for evaluating whether recusal is required: 1) the defendant’s capacity to carry out the threat; 2) the defendant’s demeanor and the context of the threat; 3) the perceived purpose of the threat. The third step, perhaps the most important, points out that not every threat should force recusal; if so, defendants could readily manipulate the system.

 

 

Note:

The defendant in this case had been convicted and sentenced for mailing threatening communications and threatening the President of the United States. The defendant had also threatened a state court judge, the prosecutor in a prior criminal proceeding, a jail nurse, and a former defense lawyer. The trial court did not find the need to notify the FBI, or request additional marshal protection.

4.3.16

Attorney Work Product

Case:

In re Harmonic Securities Litigation (N.D.Cal. 2007) __ F.R.D.__, 2007 WL 2701123

Issue:

In securities litigation, may plaintiffs assert the work product privilege to a defense interrogatory requesting the identity of confidential witnesses, from among 77 witnesses listed on plaintiff’s initial disclosures list, that were the source of key allegations of the complaint?

Holding:

No. Pointing out there was no binding Supreme Court or Ninth Circuit precedent, the Court observed that, since plaintiffs conceded that the defense eventually would learn the identity of the confidential witnesses, the only effect of not requiring a response to the interrogatory was to require the defense to spend resources taking the depositions of, or otherwise investigate, the 77 listed witnesses. “Because the information will inevitably be disclosed and the earlier disclosure does not compromise Plaintiffs’ strategic or tactical position, there is no basis for finding work product protection.” (Id. at *3, citations omitted.)

Note:

In the alternative, the Court held that, even if the identity of the confidential witnesses were protected work product, the information is factual work product subject to disclosure because the defense need for the information outweighs plaintiffs’ minimal work product interest in it. (Id. at *5.)

4.3.17

Depositing and Registering Client’s Will Without Consent

Case:

Formal Opinion No. 2007-173

Issue:

May an attorney ethically deposit a client’s will or other testamentary documents with a private will depository without the client’s consent, or register them with a private will registry without the client’s consent?

Holding:

Yes, under some circumstances. An attorney who keeps a client’s will or other testamentary documents may terminate the deposit per the client’s instructions or consent. But if the attorney cannot locate the client, he or she may only terminate the deposit pursuant to Probate code section 700 et seq. An attorney may register certain identifying information about a client’s will or other testamentary documents with a private will registry if the attorney can determine, based on knowledge of the client, the client’s matter and investigation of the will registry, that registration will not violate the attorney’s fiduciary duties of confidentiality and competence. (See California RPC 3-100 and 3-110; California Business and Professions Code section 6068(a) and (e); California Evidence Code section 912(d) and Probate Code sections 700 et seq.).

Note:

The interesting analysis here comes up where the attorney cannot locate the client. The fact pattern of this Opinion involves an attorney who has not heard from