Legal Ethics Corner

Ethics Corner 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 Heavy Burden in Piercing Your Opponents’ Attorney Client and Work Product Privileges is Again Confirmed

For several years, the law in this state has been that “depositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause - a high standard.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562 (“Carehouse”).)

As quoted in the opening line of the Carehouse case: “[t]he adversarial system of justice presumes that the attorneys for each side oppose one another, not depose one another.” (Id. at p. 1562.)  The rationale for this proposition is clear: “taking the deposition of opposing counsel disrupts the adversarial system and lowers the standard of the profession, adds to the already burdensome time and costs of litigation, and detracts from the quality of client representation.” (Estate of Ruchti (1993) 12 Cal. App. 4th 1593, 1600 citing Spectra-Physics, Inc. v. Sup. Ct. (1988) 198 Cal. App. 3d 1487.)

The scope of these privileges continue to be litigated throughout the State.  In Fireman's Fund Ins. Co. v. Superior Court (2011) 196 Cal.App,4th 1263, a shopping mall owner sued Fireman's Fund Insurance Company for, among other things, bad faith in the handling of certain property damage claims that had allegedly been sustained by Front Gate.  Fireman's Fund's counsel, Carlson, Calladine & Peterson, LLP (CCP), was contacted by Sunil Chand (Chand), the acting director of accounting for a related entity, who claimed to be a whistleblower in possession of evidence demonstrating that Front Gate's insurance claims were fraudulent. Chand spoke with attorney Melissa Dubbs, an associate at CCP.

Dubbs, although not attorney of record in the current litigation,  was deposed with regard to the documents which Chand eventually provided her.  Thereafter, Front Gate move to compel Dubbs to answer at her deposition five questions to which objections of attorney-client privilege and/or work product privilege had been asserted.   The discovery referee held:
the attorney-client privilege protects only communications between an attorney and a client, but not an attorney's communications with members or agents of her law firm about client matters. In addition, because he was of the view that the communications at issue were not reduced to writing and did not seek an attorney's legal opinions, the Referee concluded that only the qualified work product privilege applied and therefore those communications should be divulged to avoid “unfair[ ] prejudice” to [Front Gate]. 
(Id. at p. 1271.)

Fireman’s fund sought a  writ of mandate vacating the trial court's order.  The court of appeal found the trial court erred as the questions sought attorney client privileged “information regarding Dubbs's evaluation of Chand and his possible usefulness to Fireman's Fund's case, as expressed to another attorney at CCP” and because “unwritten opinion work product is entitled to the protection of the absolute work product privilege in California.”  (Id. at pp. 1274, 1281.)

The decision confirms that counsel is best served by first seeking to obtain information from independent sources prior to attempting to invade your opponent’s camp.

-- 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.**