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.

Another Consideration Affecting Joint Representation

Joint representation of multiple clients may afford cost efficiencies and other benefits to clients but requires careful consideration of conflicts of interest and appropriate written disclosures by legal counsel. Counsel should alert joint clients that while the attorney-client privilege protects the disclosure of confidential communications to outsiders, no privilege applies among jointly-represented clients or as between counsel and any of them if they later assume adverse positions.

A decision earlier this year from the California Court of Appeal, Second District, clarifies that when one client among multiple clients sues their common attorney for legal malpractice, no attorney-client privilege applies to protect the disclosure of confidential communications and the plaintiff client may effectively waive the privilege for the others. In Anten v. Superior Court (2015) 233 Cal.App.4th 1254, the Court of Appeal reconciled several competing concepts related to the attorney-client privilege.

As the Court observed, there is no attorney-client privilege in a lawsuit between counsel and client based upon an alleged breach of duty by the attorney. (See, Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 786.) Similarly, no privilege applies to confidential communications with counsel when jointly represented clients sue each other. (Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1294.) However, one joint client may generally not waive the attorney-client privilege for another joint client. (American Mutual Liability Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 595.)

Against this background the Court of Appeal applied the facts of Anten: Lewis Anten and Arnold and Lillie Rubin jointly retained Weintraub Tobin Chediak Coleman Grodin (Weintraub) to advise them regarding tax advice rendered by a prior law firm. The Weintraub lawyers advised their joint clients that prior counsel committed malpractice and that the resultant errors could not be corrected. As a result, Anten and the Rubins settled with the Internal Revenue Service for more than $1 million.

The Weintraub lawyers recommended that Anten and the Rubins sue their prior counsel. Weintraub subsequently “fired” Anten as a client and represented the Rubins in an action against their former tax attorneys.  Anten sued the Weintraub firm and his prior lawyers.

In response to Anten’s motion to compel, the Weintraub firm asserted the Rubins’ attorney-client privilege relevant to communications among the Rubins, Anten, and Weintraub. The trial court sustained Weintraub’s objection on this basis, and Anten sought a writ of mandate.

The Court of Appeal considered the scope of Evidence Code 958, which provides, in relevant part: “[t]here is no privilege under this article [(i.e., 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[,]” as well as case law. The Court concluded that “considerations of fundamental fairness … as a whole weigh strongly in favor of applying [Evidence Code section 958] in this context[,]” and issued a writ of mandate with direction to the trial court to enter a new order granting Anten’s motion to compel further responses.

Thus, a jointly represented client may not invoke the attorney-client privilege in another client’s suit against their former counsel.

– Eric Deitz

**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.**