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.

Attorney’s Testimony Results in Waiver of Attorney Client Privilege

Six weeks of trial recently concluded in former AIG chief Maurice Greenberg’s lawsuit against the federal government claiming it engaged in an unconstitutional taking when it received the majority of AIG’s equity in exchange for bailing the company out of a dire liquidity crisis in 2008. The government was ordered during trial to turn over 30,000 documents previously protected by the attorney client privilege.  Why? 

The Justice Department put the government’s attorneys from Davis Polk on the stand and one of the attorneys volunteered his view of Delaware law and testified he shared his opinion with the government.  The Federal Claims court then ordered the government to produce about 30,000 documents stating the “rules had changed dramatically” after the attorney’s testimony.  (See, .)   

While most of us may not find ourselves testifying in billion dollar litigation with the federal government, many attorneys may be called as witnesses regarding, among other topics, trusts or other contracts they drafted or if the client asserts the “advice of counsel” as a defense to bad faith  claims against insurance companies or malicious prosecution actions.  (See, e.g., Kennedy v. Byrum (1962) 201 Cal.App.2d 474, 481 ["Reliance in good faith on the advice of counsel is a defense to an action for malicious prosecution, inasmuch as such defense shows probable cause." ])

No attorney wants to fail in their duty to “maintain inviolate the confidences, and at every peril to himself or herself to preserve the secrets of his or her client….” (Bus. & Prof. Code 6068 (e)(1).)   Generally, “[a]n attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.”  (Reilly v. Greenwald & Hoffman, LLP (2011) 196 Cal.App.4th 891, 903.)   But, “[e]vidence Code section 912, subdivision (a) provides that a privilege is waived when a holder of a privilege fails to claim the privilege in a proceeding in which he or she has the standing and opportunity to do so.”  (Calvert v. State Bar (1991) 54 Cal.3d 765, 780.) 

Waivers require a fact specific analysis, but an attorney being called as a witness could waive the privilege 1) if disclosure of communications is made in the client’s presence without the client’s objection; 2) “a client has placed in issue the decisions, conclusions, and mental state of the attorney who will be called as a witness to prove such matters'" (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 605); or 3) under limited circumstances, the “privileged information goes to the heart of the claim,” and “fundamental fairness requires that it be disclosed for the litigation to proceed.”  (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 292.) 

To be sure, Courts infrequently find a waiver even where waiver is arguable.  “The scope of either a statutory or implied waiver is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver. Privileged communications do not become discoverable simply because they are related to issues raised in the litigation." (Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal. App. 3d 1047, 1052-1053.) 

Attorneys acting as a both a witness and advocate for the client must also consider Rule of Professional Conduct 5-210’s prohibition on attorneys acting as an advocate before a jury that will hear testimony from the attorney unless 1) the testimony relates to an uncontested matter; 2) or the testimony relates to the nature and value of the legal services rendered in the case; 3) or the member has the informed, written consent of the client. (Cal. Rule Prof. Conduct 5-210 (A)-(C); see also, Kennedy v. Eldridge (2011) 201 Cal. App. 4th 1197, 1211  applying ABA Model Rule 3.7, rather than Rule 5-210, to affirm disqualification of a child’s grandfather from representing the father in a custody and support dispute with the child’s mother in non-jury trial].)  

As the foregoing indicates, an attorney testifying as a witness requires considerations other than simply “telling the truth and nothing but the truth.” 

– 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.**