Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

The Court of Appeal Clarifies Attorney Client Privilege Issues Confronting In-House Counsel Suing Their Employer for Wrongful Termination

In Chubb & Son v. Superior Court (2014) 2014 Cal. App. LEXIS 728, plaintiff worked for a firm acting as in-house counsel for Chubb & Son and represented the Chubb’s insureds.  Plaintiff contended that she was fired "because she is a person with disabilities, requested accommodation, and took medical leave."  Chubb contended the termination was a result of plaintiff’s performance.

After a discovery dispute arose over production of documents reflecting plaintiff’s performance on behalf of various third-party insureds, Chubb filed a petition for writ of mandate of the trial court’s order that “the Parties are permitted to disclose to their respective counsel attorney-client privileged communications and client confidences of third-party clients for the purpose of consulting with their counsel regarding how to proceed in this case, and particularly with respect to how to proceed in the discovery matters properly before the Court at this time, in accordance with the provisos set forth in Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294 [106 Cal. Rptr. 2d]…. Counsel for the Parties are prohibited from disclosing to anyone else, including the Court, information of third-party clients disclosed by the Parties that is properly identified as attorney-client communication(s).”  (Id. at **12-13.) 

Thus, at issue was whether a litigant may disclose attorney client confidences to their own attorney “where the attorney-client confidences are held not by a party to the instant litigation, but by Chubb's nonparty insureds to whom [Plaintiff] provided legal services in the past.”  (Id. at *14.)   The Fifth District Court of Appeal set forth multiple bases for the propriety of the Court’s order including that “disclosure of the alleged privileged communications and confidences to the parties' respective attorneys in this case ultimately helps to protect the privilege and, thus, its holder. If the attorneys representing Lemmon are to assist her in avoiding impermissible public disclosure, ‘it is essential for them to have complete knowledge of all potentially confidential information known to their client and relevant to the litigation,’ as only through full disclosure can they ‘make judgments about what is disclosable and what is not.’” (Id. at *27 quoting Fox Searchlight, supra, 89 Cal.App.4th at p. 313.) 

Although the opinion is consistent with prior decisions allowing for such litigants to proceed with their cases, there is still no certainty as to how a wrongful termination trial would play out where disclosure of third-party attorney client confidences may be integral to either the prosecution or defense.   The opinion is another reminder that attorney litigants are bound by exacting duties not facing every other litigant. 

– Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**