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.

Appellate Court Interprets Waivers of Attorney Client Privilege Where the Original Holder is Deceased and Confirms Impropriety of In Camera Review Once the Party Asserting the Privilege Establishes an Attorney Client Communication

In DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, DP Pham, LLC made loans to Robert Obarr totaling almost $3 million and secured by a lien on Obarr’s mobile home park in Westminster (“Property”). After promises to both a second buyer and DP Pham to sell the Property to each, the second buyer sued Obarr and his personal assistant/bookkeeper, Christi Torres Galla. Pham answered and cross-complained. Obarr died thereafter unexpectedly. The trial court appointed Cheadle as a special administrator for Obarr's estate and in that capacity substituted Cheadle for Obarr as a party to this action. (Id. at pp. 660-661.)  

The second buyer filed a motion for summary adjudication of its specific performance claim. Pham’s opposition included a declaration from Galla attaching an email to Obarr from his business attorney, Shapleigh Kimes, and a letter to Obarr from Kimes. Galla had been copied on each communication, per Obarr’s standing instruction, and each identified Kimes as an attorney. Cheadle then objected to the admission of Kimes’s email and letter on the basis that they were privileged communications under the attorney-client privilege.

Although the trial court sustained Cheadle’s objections to the evidence, it denied a subsequent motion to disqualify Pham’s counsel finding that although Cheadle met his burden in establishing the communications were between an attorney and client, based on its “in camera review of the communications” the “privilege did not apply because Kimes's statements in the communications suggested he was not representing Obarr concerning the potential sale of the Property, and therefore as to the Property no attorney-client relationship existed.” (Id. at p. 662.) 

The trial court also found waiver on an Evidence Code section 957, 960 and 961 pertaining to communications “(1) ‘between parties all of whom claim through a deceased client’ (§ 957); (2) ‘concerning the intention of a client, now deceased, with respect to a deed of conveyance, will or other writing, executed by the client, purporting to affect an interest in property’ (§ 960); or (3) ‘concerning the validity of a deed of conveyance, will, or other writing, executed by a client, now deceased, purporting to affect an interest in property’ (§ 961).” (Id. at p. 944.) 

The appellate court then confirmed Evidence Code “section 915 prohibits a court from reviewing an allegedly privileged attorney-client communication to determine whether it is privileged because the nature of the attorney-client privilege requires absolute protection for all confidential communications between an attorney and a client regardless of their content” and despite Galla’s disclosure to Pham, the “privilege is not waived when the client's agent discloses a privileged communication without the client's authorization.” (Id. at pp. 667-668.)  

In finding Evidence Code section 957 inapplicable, the “Legislature's based this exception on the reasonable assumption the deceased client would want privileged communications disclosed to ensure distribution of the client's estate was consistent with the client's wishes” as opposed to a party seeking affirmative relief against the decedent’s estate. (Id. at p. 971.)  Further, as “with section 957's exception, there is no case law construing the language” of section 960 and 961, but based on the Law Revision Commission Comments, the trial court found they did not apply because at “most, the email and letter therefore would reflect general information about Obarr's intent concerning the Property's sale months before he executed either purchase agreement, rather than the sort of information an attesting witness would have about the purchase agreements and their execution.” (Id. at p. 673.) 

The appellate court remanded the question whether disqualification was proper instructing that “the court should limit itself to nonprivileged information it received from the parties about the communications and their impact on the action. Nothing about the attorney-client privilege, however, prevents the court from considering, or requiring disclosure of, any information not derived from an examination of the privileged communications, such as facts relating to who holds the privilege, whether an attorney-client relationship existed at the time of the communications, and whether the client intended the communication to be confidential.” (Id. p. 677.)  Not only does the decision provide the first caselaw interpretation of waivers where the original holder of the privilege is deceased, but the remand instruction should guide practitioners with regard to the parameters of information trial courts may consider in determining whether the privilege has been waived.  

-- 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.**