Edwards Wildman Palmer v. Super. Ct. , 231 Cal. App. 4th 1214 ( 2014 )

Filed 11/25/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
EDWARDS WILDMAN PALMER et al., No. B255182
Petitioners, (Super. Ct. No. BC517799)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
SHAHROKH MIRESKANDARI,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Terry A. Green, Judge. Petition
granted in part and denied in part.
McLeod, Moscarino, Witham & Flynn and John M. Moscarino for Petitioners.
No appearance for Respondent.
Parker Shumaker Mills, David B. Parker, Mark A. Graf and Jason J. Rudolph for
Real Party in Interest.
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of part 6 of the Discussion.
INTRODUCTION
The question before us is whether the attorney-client privilege applies to intrafirm
communications between attorneys concerning disputes with a current client, when that
client later sues the firm for malpractice. We conclude that when an attorney
representing a current client seeks legal advice from an in-house attorney concerning a
dispute with the client, the attorney-client privilege may apply to their confidential
communications. Adoption of the so-called “fiduciary” and “current client” exceptions to
the attorney-client privilege is contrary to California law because California courts are
not at liberty to create implied exceptions to the attorney-client privilege. In the
unpublished portion of the opinion, we hold that the exceptions to the attorney-client
privilege embodied in Evidence Code sections 958 and 9621 do not apply to the
circumstances presented here. Accordingly, we grant in part the petition of Edwards
Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the
trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner and defendant Edwards Wildman Palmer LLP (the Firm) is an
international law firm with 16 offices and over 600 attorneys. Petitioner and defendant
Dominique R. Shelton is a former partner in the Firm’s Los Angeles office. In March
2012 plaintiff and real party in interest Shahrokh Mireskandari retained the Firm to
represent him in an invasion of privacy lawsuit against the Daily Mail, a newspaper
based in the United Kingdom. Shelton was the Firm partner in charge of handling the
case. On April 4, 2012, the Firm filed a complaint on Mireskandari’s behalf against the
Daily Mail and other defendants in the United States District Court for the Central
District of California. Approximately seven weeks later, the Firm filed a First Amended
Complaint.
The relationship between Mireskandari and the Firm was short lived and, for the
most part, contentious. In June 2012, Mireskandari sent Shelton two emails expressing
1 All further undesignated statutory references are to the Evidence Code.
2
dissatisfaction with the Firm’s billings and representation. In an email dated June 24,
2012, Mireskandari stated: “You are and have acted in complete breach of the terms of
the retainer between me and your firm. [¶] Please take notice that I will hold your firm
liable for any and all damages that I may incur from you[r] actions.” In a 10-page email
dated June 25, 2012, Mireskandari complained, among other things, that Shelton’s
estimate of the cost of the litigation had been vastly understated. He found it “impossible
to understand how a budget can be so far off the mark and how any competent litigator
can fail to see such a huge disparity in a . . . budget.” He questioned why Shelton had
purportedly failed to discern that the Daily Mail was likely to file an “anti-SLAPP
motion,”2 accused her of failing to timely advise him of this eventuality, and professed to
be “deeply troubled by the swinging pendulum of advice that I have been given by you.”
Mireskandari demanded that all communications between him and Shelton be in writing,
“to avoid any misunderstandings.” He charged that the Firm’s demand he sign an
additional document “before any further work [was] undertaken” was “wholly
inappropriate and unethical.” Had it not been for the involvement of his own personal
legal advisor, he “would have passed this matter straight to an alternat[e] attorney to deal
with.” Nonetheless, Mireskandari stated he continued to rely on the Firm for legal
advice: “I relied and continue [to] rely [upon] you and your firm[’s] expertise to provide
me with reasonable, logical and informed advice about my matter.”
On June 25, 2012, the Daily Mail defendants filed anti-SLAPP motions in the
Daily Mail case.
2 “Code of Civil Procedure section 425.16 provides a procedure for the early
dismissal of what are commonly known as SLAPP suits (strategic lawsuits against public
participation)—litigation of a harassing nature, brought to challenge the exercise of
protected free speech rights.” (Fahlen v. Sutter Central Valley Hospitals (2014) 58
Cal.4th 655, 665, fn. 3.) A motion to dismiss filed under the statute’s authority is
commonly denominated an “anti-SLAPP motion.” (Ibid.)
3
On August 9, 2013, Mireskandari, represented by the firm of Parker Shumaker
Mills, LLP, filed the instant action for legal malpractice, breach of fiduciary duty, and
breach of contract against the Firm and Shelton in Los Angeles County Superior Court.3
The allegations in his amended complaint echoed those made in his June 2012 emails.
Additionally, the amended complaint alleged that because the Firm had refused to
perform additional work on the case, Mireskandari was forced to hire “on short notice”
the law firm of Greenberg Glusker Fields Claman & Machtinger LLP (Greenberg
Glusker) “to assist in preparing oppositions to the motions to dismiss” in the Daily Mail
action.
On August 16, 2012, Greenberg Glusker substituted in as counsel for
Mireskandari in the Daily Mail case. The Firm and Shelton retained outside counsel to
defend them in Mireskandari’s state malpractice lawsuit.
During the period June 2012 to August 16, 2012, while the Firm was still
representing Mireskandari in the Daily Mail lawsuit, Shelton consulted with Edwards
Wildman Palmer attorneys, Jeffrey Swope and James A. Christman, concerning
Mireskandari’s complaints about the Firm’s representation and the billing dispute.
In November 2013, Mireskandari’s attorneys in the malpractice action deposed
Shelton. The notice of deposition demanded production of four categories of documents.
At the deposition, Shelton invoked the attorney-client privilege and refused to answer
nine questions that purportedly related to privileged communications with Swope. After
the deposition, the Firm produced many of the requested documents4 but invoked the
3 On February 14, 2014, Mireskandari filed a First Amended Complaint, which is
the operative pleading.
4 The documents produced included “internal electronic communications” between
Edwards Wildman lawyers, Shelton, and an associate assigned to the case, and “e-mail
communications Ms. Shelton had with Mr. Mireskandari and various lawyers who were
involved in the Daily Mail case while Edwards Wildman was representing
Mr. Mireskandari.” Additionally, in connection with the associate’s deposition the Firm
produced six boxes of hard-copy files. The documents produced included “all of the
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attorney-client privilege in regard to “internal law firm communications between the
deponent and Edwards Wildman lawyers acting in their capacity as counsel for the firm
and/or documents prepared in anticipation of litigation with the plaintiff.” The Firm
produced a privilege log listing 387 documents it had withheld as protected by the
attorney-client privilege.
Mireskandari moved to compel Shelton to answer the deposition questions and
produce the documents withheld on privilege grounds. Relying primarily on Thelen Reid
& Priest LLP v. Marland (N.D.Cal. Feb. 21, 2007) 2007 U.S. Dist. Lexis 17482 (Thelen),
and In re SonicBlue, Inc. (Bankr. N.D.Cal. Jan. 18, 2008) 2008 Bankr. Lexis 181
(SonicBlue), Mireskandari argued that the attorney-client privilege is inapplicable when
“ ‘a law firm is attorney to both an outside client and to itself.’ ” He urged that the
attorney-client privilege does not attach to intrafirm communications made during, and
concerning, matters related to representation of a current client.
The Firm and Shelton opposed the motion. In support they submitted the
declarations of Swope and Christman. According to their declarations, Swope, a partner
in the Boston office, was the Firm’s general counsel; Christman, a partner in the Chicago
office, was the Firm’s “Claims Counsel.” Swope and Christman shared responsibility
“on claims handling and loss prevention issues.” Shelton had sought Christman’s advice
in connection with the Mireskandari case in June 2012, after Mireskandari expressed
dissatisfaction with the quality of the Firm’s representation and billing. Swope had
“numerous communications” with Shelton “in [his] capacity as General Counsel to the
firm and for the purpose of advising Ms. Shelton regarding her responses to
Mr. Mireskandari’s complaints and the handling and management of the client
relationship.” Christman gave Shelton “advice in [his] official capacity as Claims
Counsel for Edwards Wildman” and worked with Swope “with respect to legal issues
relating to the Mireskandari representation in June of 2012.”
drafts of various pleadings” and “communications between lawyers in the firm about the
case as the case.”
5
Also, Swope and Christman declared that while acting in their “capacities as
counsel to the firm responsible for claims handling and loss prevention,” they assigned
Chicago partner Mark Durbin to the case to supervise “the preparation of pleadings that
Mr. Mireskandari wanted the firm to file on his behalf, notwithstanding his existing
disputes and assertions against the firm.” Swope and Christman “deputized” Durbin “to
advise Ms. Shelton regarding her responses to Mr. Mireskandari’s complaints and on the
management of the Mireskandari client relationship.” They averred that Durbin’s
“communications with Ms. Shelton advising her regarding her responses to
Mr. Mireskandari’s complaints and on management of the client relationship with
Mr. Mireskandari were as our deputy with claims handling and loss prevention
responsibility and acting as legal counsel to the firm.” The Firm did not bill
Mireskandari for any of Swope’s, Christman’s, or Durbin’s time.
In light of the foregoing, the Firm and Shelton argued that the attorney-client
privilege applied to communications between Shelton and lawyers acting as counsel for
the Firm. In the Firm’s view, in light of Mireskandari’s “[h]ostile and accusatory
correspondence” in June 2012, Shelton was entitled to seek the advice of lawyers within
her own firm––a common practice in the legal community––and assert the privilege as to
those communications. Relying primarily on Wells Fargo Bank v. Superior Court (2000)
22 Cal.4th 201 (Wells Fargo), they argued that the federal cases cited by Mireskandari
did not accurately reflect California law. They additionally pointed to cases from the
supreme courts of Massachusetts and Georgia that had rejected the rationales of
SonicBlue and Thelen. (RFF Family Partnership, LP v. Burns & Levinson, LLP (Mass.
2013) 465 Mass. 702 [991 N.E.2d 1066] (RFF); St. Simons Waterfront, LLC v. Hunter,
MacLean, Exley & Dunn, P.C. (Ga. 2013) 293 Ga. 419 [746 S.E.2d 98] (St. Simons).)
After observing that the issue was novel, the trial court granted the motion to
compel. It found Thelen’s reasoning––in a nutshell, that a firm’s fiduciary and ethical
duties to a client trump the attorney-client privilege––persuasive. The court reasoned that
the client’s right to be informed took precedence over any claim of privilege.
Mireskandari was entitled to his file, and “if there were . . . discussions among members
6
of the firm regarding the client, the client’s case, the client’s claims, what was going on,
that belongs to the client. The client is the holder of the privilege.”
On March 27, 2014, the Firm and Shelton filed the instant petition for a writ of
mandate or prohibition, asking that we compel the trial court to set aside its order and
enter a new order denying Mireskandari’s motion to compel. We issued an order to show
cause and stayed the trial court’s order.
DISCUSSION
1. Standard of review
We generally review a trial court’s determination on a motion to compel discovery
for abuse of discretion, but we independently review issues of law. (Costco Wholesale
Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (Costco); Snibbe v. Superior Court
(2014) 224 Cal.App.4th 184, 189; Kerner v. Superior Court (2012) 206 Cal.App.4th 84,
110 (Kerner).) A trial court abuses its discretion when it applies the wrong legal standard
or its factual findings are not supported by substantial evidence. (Costco, at p. 733;
Kerner, at p. 110; Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th
1485, 1493 (Zurich).)
“Extraordinary review of a discovery order will be granted when a ruling threatens
immediate harm, such as loss of a privilege against disclosure, for which there is no other
adequate remedy.” (Zurich, supra, 155 Cal.App.4th at p. 1493; Fireman’s Fund Ins. Co.
v. Superior Court (2011) 196 Cal.App.4th 1263, 1272.) Here, because petitioners seek
relief from a discovery order that may undermine the attorney-client privilege, review by
way of extraordinary writ is proper. (Costco, supra, 47 Cal.4th at pp. 740-741; Zurich, at
p. 1493.) Moreover, where “the issues presented are of first impression and of general
importance to the trial courts and to the profession, writ review is appropriate.” (Save
Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235,
245.)
2. The attorney-client privilege
California’s attorney-client privilege is embodied in section 950 et seq. and
protects confidential communications between a client and his or her attorney made in the
7
course of an attorney-client relationship. (Roberts v. City of Palmdale (1993) 5 Cal.4th
363, 371; Kerner, supra, 206 Cal.App.4th at p. 116.) Section 954 “confers a privilege on
the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential
communication between client and lawyer . . . .’ ”5 (Costco, supra, 47 Cal.4th at p. 732;
Zurich, supra, 155 Cal.App.4th at p. 1494.) The attorney-client privilege “ ‘has been a
hallmark of Anglo-American jurisprudence for almost 400 years.’ [Citation.] Its
fundamental purpose ‘is to safeguard the confidential relationship between clients and
their attorneys so as to promote full and open discussion of the facts and tactics
surrounding individual legal matters. [Citation].’ ” (Costco, at p. 732.) “[T]he public
policy fostered by the privilege seeks to insure ‘the right of every person to freely and
fully confer and confide in one having knowledge of the law, and skilled in its practice, in
order that the former may have adequate advice and a proper defense.’ ” (Mitchell v.
Superior Court (1984) 37 Cal.3d 591, 599; Roberts v. City of Palmdale, supra, 5 Cal.4th
at p. 380; Zurich, at p. 1494.) “ ‘Although exercise of the privilege may occasionally
result in the suppression of relevant evidence, the Legislature of this state has determined
5 Section 954 provides: “Subject to Section 912 and except as otherwise provided
in this article, the client, whether or not a party, has a privilege to refuse to disclose, and
to prevent another from disclosing, a confidential communication between client and
lawyer if the privilege is claimed by: [¶] (a) The holder of the privilege; [¶] (b) A
person who is authorized to claim the privilege by the holder of the privilege; or [¶]
(c) The person who was the lawyer at the time of the confidential communication, but
such person may not claim the privilege if there is no holder of the privilege in existence
or if he is otherwise instructed by a person authorized to permit disclosure. [¶] The
relationship of attorney and client shall exist between a law corporation as defined in
Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business
and Professions Code and the persons to whom it renders professional services, as well as
between such persons and members of the State Bar employed by such corporation to
render services to such persons. The word ‘persons’ as used in this subdivision includes
partnerships, corporations, limited liability companies, associations and other groups and
entities.”
8
that these concerns are outweighed by the importance of preserving confidentiality in the
attorney-client relationship. As [our Supreme Court] has stated: “The privilege is given
on grounds of public policy in the belief that the benefits derived therefrom justify the
risk that unjust decisions may sometimes result from the suppression of relevant
evidence.” [Citations.]’ ” (Costco, at p. 732.)
Section 951 defines “client,” for purposes of the privilege, as “a person who,
directly or through an authorized representative, consults a lawyer for the purpose of
retaining the lawyer or securing legal service or advice from him in his professional
capacity . . . .” (§ 951.) Section 950 defines “lawyer” as “a person authorized, or
reasonably believed by the client to be authorized, to practice law in any state or nation.”
(§ 950.) “[I]t is settled that a corporate client . . . can claim the privilege.” (Costco,
supra, 47 Cal.4th at p. 733; § 954; D. I. Chadbourne, Inc. v. Superior Court (1964) 60
Cal.2d 723, 732, 736.)
A “ ‘confidential communication between client and lawyer’ ” is defined as
“information transmitted between a client and his or her lawyer in the course of that
relationship and in confidence by a means which, so far as the client is aware, discloses
the information to no third persons other than those who are present to further the interest
of the client in the consultation or those to whom disclosure is reasonably necessary for
the transmission of the information or the accomplishment of the purpose for which the
lawyer is consulted, and includes a legal opinion formed and the advice given by the
lawyer in the course of that relationship.” (§ 952.) “The term ‘confidential
communication’ is broadly construed, and communications between a lawyer and his
client are presumed confidential, with the burden on the party seeking disclosure to show
otherwise.” (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557.)
“An attorney-client relationship exists for purposes of the privilege whenever a
person consults an attorney for the purpose of obtaining the attorney’s legal service or
advice.” (Kerner, supra, 206 Cal.App.4th at pp. 116-117; People v. Gionis (1995)
9 Cal.4th 1196, 1208.) No formal agreement or compensation is necessary to create an
attorney-client relationship for purposes of the privilege. (Kerner, at p. 117; Responsible
9
Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1732 [the attorney-client
relationship is “ ‘created by some form of contract, express or implied, formal or
informal’ ”].) However, no attorney-client relationship arises for purposes of the
privilege if a person consults an attorney for nonlegal services or advice in the attorney’s
capacity as a friend, rather than in his or her professional capacity as an attorney.
(Kerner, at p. 117.) “ ‘It is settled that the attorney-client privilege is inapplicable where
the attorney merely acts as a negotiator for the client, gives business advice or otherwise
acts as a business agent.’ ” (Zurich, supra, 155 Cal.App.4th at p. 1504.)
As relevant here, the client is the holder of the privilege. (§ 953, subd. (a).) The
privilege may be claimed only by the holder of the privilege, by a person authorized by
the holder to claim it, or by the person who was the lawyer at the time of the confidential
communication. (§ 954; Kerner, supra, 206 Cal.App.4th at pp. 111-112.) A lawyer who
received or made a privileged communication is obligated to claim the privilege
whenever he or she is present when the communication is sought to be disclosed. (§ 955;
Kerner, at pp. 111-112.)
Where the privilege applies, it may not be used to shield facts, as opposed to
communications, from discovery. (Zurich, supra, 155 Cal.App.4th at p. 1504; Upjohn
Co. v United States (1981) 449 U.S. 383, 395-396 [the privilege “ ‘extends only to
communications and not to facts. A fact is one thing and a communication concerning
that fact is an entirely different thing’ ”].) Relevant facts may not be withheld merely
because they were incorporated into a communication involving an attorney, and
knowledge that is not otherwise privileged does not become so by being communicated
to an attorney. (Costco, supra, 47 Cal.4th at p. 735; Zurich, at p. 1504.) On the other
hand, the privilege bars discovery of a privileged communication irrespective of whether
it includes unprivileged material; “when the communication is a confidential one between
attorney and client, the entire communication, including its recitation or summary of
factual material, is privileged.” (Costco, at pp. 734, 736.)
Sections 956 through 962 enumerate eight exceptions to the attorney-client
privilege. Where none of these exceptions apply, “ ‘[t]he privilege is absolute and
10
disclosure may not be ordered, without regard to relevance, necessity or any particular
circumstances peculiar to the case.’ [Citation.]” (Costco, supra, 47 Cal.4th at p. 732;
Kerner, supra, 206 Cal.App.4th at p. 111.)
3. The “fiduciary” and “current client” exceptions to the attorney-client privilege
are not recognized under California law.
“As law firms have grown in both size and organization, internal ethics and claims
advice has increasingly taken on institutional form.” (Fucile, The Double Edged Sword:
Internal Law Firm Privilege and the “Fiduciary Exception” (2009) 76 Def. Couns. J.
313; Chambliss, The Scope of In-Firm Privilege (2005) 80 Notre Dame L.Rev. 1721
[“Large law firms increasingly are hiring their own in-house counsel to provide day-to-
day ethics advice, monitor internal policies and procedures, and respond to potential and
actual malpractice claims against the firm”].) The parties do not appear to dispute that, as
a general matter, an attorney can act as counsel to his or her own firm, or to another
attorney who is a member of, or employed by, the firm. “There is nothing exceptional
about the proposition that individual attorneys within a law firm may seek legal advice
from their colleagues about either personal matters or matters relating to the firm’s
interests, and that when they do so, they stand in a client relationship to the attorney
whose advice has been sought.” (TattleTale Alarm Systems, Inc. v. Calfee, Halter &
Griswold, LLP (S.D. Ohio Feb. 3, 2011) 2011 U.S. Dist. LEXIS 10412, *9;6 Versuslaw,
Inc. v. Stoel Rives, LLP (2005) 127 Wash. App. 309 [111 P.3d 866, 878] [“Lawyers in a
law firm seeking legal advice from another lawyer in the same firm can assert the
attorney-client privilege”].) We have previously found an attorney-client relationship to
exist between attorneys within the same firm. (Kerner, supra, 206 Cal.App.4th at pp.
117-119.) Applying the plain language of the relevant provisions of the Evidence Code,
an attorney who consults another attorney in the same firm for the purpose of securing
6 Unpublished federal opinions are citable notwithstanding California Rules of
Court, rule 8.1115, which only bars citation of unpublished California opinions.
(Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 990, fn. 4.)
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confidential legal advice may establish an attorney-client relationship. (See §§ 950-952.)
Swope, Christman, and Durbin were obviously lawyers. (§ 950.) If Shelton, or the Firm
itself, consulted Swope, Christman, or Durbin for the purpose of obtaining legal advice
regarding their ethical duties or the threatened malpractice claim, they would qualify as
“clients.” (§ 951.) Thus, assuming a genuine attorney-client relationship existed, such
confidential communications would fall within section 954’s ambit.
Mireskandari, however, argues that in light of petitioners’ ethical and fiduciary
duties to him as his attorneys, and the purported conflict of interest arising from the
Firm’s representation of itself or Shelton, petitioners’ intrafirm communications made
during, and concerning, their representation of him are not protected by the attorney-
client privilege. Relying on Thelen and SonicBlue, he urges that a lawyer who counsels
another lawyer in the same firm, regarding a current client of the firm, “becomes a lawyer
with an impermissible conflict of interest,” and when such a conflict exists, the attorney-
client privilege must be subordinated to the firm’s ethical duties.
In granting Mireskandari’s motion, the trial court relied primarily on Thelen.
There, a federal district court considered “whether the attorney-client privilege applies
where a law firm is attorney to both an outside client and to itself.” (Thelen, supra, 2007
U.S. Dist. Lexis at p. *16.) The law firm of Thelen Reid & Priest represented Marland in
a qui tam action; it simultaneously represented the California Department of Insurance
(CDOI) regarding the same claims. (Id. at pp. *5-6.) During the representation, Thelen’s
general counsel advised the firm’s management and attorneys regarding, inter alia, the
firm’s legal options in light of Marland’s destruction of a key document; fee agreements
between the firm and Marland; the potential conflict of interest arising from the
representation of both Marland and CDOI; and whether the firm should withdraw as
counsel. (Id. at pp. *9-12.) Thelen subsequently sued Marland to enforce a fee sharing
contract. During discovery, the firm claimed the attorney-client privilege shielded
various communications between Thelen’s general counsel and other Thelen lawyers
concerning the aforementioned topics. Marland moved to compel. The federal district
court, purporting to apply California law, reasoned that the requested communications
12
“implicate[d] or affect[ed] Marland’s interests, and Thelen’s fiduciary relationship with
Marland as a client lifts the lid on these communications.” (Id. at pp. *19-20, italics
added.) The court recognized that law firms typically seek ethics advice from in-house
attorneys, and that such consultations are confidential. However, “once the law firm
learns that a client may have a claim against the firm or that the firm needs client consent
in order to commence or continue another client representation, then the firm should
disclose to the client the firm’s conclusions with respect to those ethical issues.” (Id. at
pp. 20-21.) Accordingly, the court required production of, inter alia, intrafirm
communications discussing Marland’s potential claims against the firm, known errors in
the firm’s representation of him, and known conflicts in representation––including those
arising from the firm’s representation of itself––that triggered a duty to advise and obtain
Marland’s consent. (Id. at p. *21.)
Similarly, in SonicBlue, claimants in a bankruptcy proceeding sought to compel
the production of documents from the law firm of Pillsbury Winthrop Shaw Pittman,
former counsel for the debtors. (SonicBlue, supra, 2008 Bankr. Lexis 181 at p. *4.) The
communications at issue reflected legal advice that Pillsbury had sought and received on
its own behalf from its own attorneys, and the firm asserted the documents were
protected from disclosure by the attorney-client privilege . (Id. at pp. *3-4, 28.) The
court disagreed, reasoning that when a law firm chooses to represent itself, it runs the risk
that the representation may create an impermissible conflict of interest with one or more
of its current clients. (Id. at p. *26.) In light of these ethical concerns, “the law firm’s
right to claim privilege must give way to the interest in protecting current clients who
may be harmed by the conflict. [Citations.] As a result, a law firm cannot assert the
attorney-client privilege against a current outside client when the communications that it
seeks to protect arise out of self-representation that creates an impermissible conflicting
relationship with that outside client.” (Id. at pp. *26-27.)
Other authorities, primarily federal, hold similarly, relying on what have been
13
denominated the “fiduciary” and the “current client” exceptions.7 (See RFF, supra, 991
N.E.2d at pp. 1074, 1076-1077 & fn. 7, and cases cited therein; see also, e.g., Koen Book
Distrib. v. Powell, Trachtman, Logan (E.D.Pa. 2002) 212 F.R.D. 283, 284-285; Bank
Brussels Lambert v. Credit Lyonnais (S.D.N.Y. 2002) 220 F.Supp.2d 283, 287; Woofter,
The “Attorney-Law Firm” Privilege: Protecting Intra-Firm Communications Regarding
a Current Client’s Potential Malpractice Claim (2014) 27 Geo. J. Legal Ethics 987, 997.)
Petitioners point out that the Supreme Courts of Massachusetts, Georgia, and
Oregon have rejected application of the “fiduciary” or “current client” exceptions. (RFF,
supra, 991 N.E.2d at p. 1068; St. Simons, supra, 746 S.E.2d at p. 102; Crimson Trace
Corporation v. Davis Wright Tremaine LLP (Ore. 2014) 355 Ore. 476 [326 P.3d 1181,
1183] (Crimson Trace).) All three were malpractice actions in which a former client
sought to discover communications between in-house counsel and the lawyers who had
represented the client, made while the firm represented the client.
RFF held that “the attorney-client privilege applies to confidential
communications between a law firm’s in-house counsel and the law firm’s attorneys,
even where the communications are intended to defend the law firm from allegations of
malpractice made by a current outside client,” provided certain conditions (discussed
post) are met. (RFF, supra, 991 N.E.2d at pp. 1080-1081.) The court rejected the notion
that any potential conflict of interest engendered by a firm’s self-representation required
extinguishment of the privilege. (Id. at pp. 1078-1079.) Moreover, policy considerations
supported preservation of the privilege: an attorney’s consultation with in-house counsel
improves the quality of a firm’s self-regulation on ethics matters, and maintaining
7 Courts have used both terms to describe the exception. (See RFF, supra, 991
N.E.2d at pp. 1074-1077.) As relevant here, the premise underlying both is that a law
firm cannot assert the attorney-client privilege against a current client when self-
representation creates a conflict of interest with that client, or otherwise breaches the
firm’s duties to the client. For our purposes, any distinctions between the two theories
are insignificant, and we use both terms interchangeably.
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confidentiality encourages attorneys to promptly seek advice on how to rectify errors.
(Id. at pp. 1071-1073.)
St. Simons came to a similar conclusion. (St. Simons, supra, 746 S.E.2d at p. 102.)
It concluded that “the same basic analysis that is conducted to assess privilege . . . in
every other variation of the attorney-client relationship should also be applied to the law
firm in-house counsel situation.” (Ibid.) Because the state rules of professional conduct
did not govern applicability of the attorney-client privilege, any conflict of interest
arising between the firm and the client did not affect the protections afforded to
privileged communications. (Ibid.)
Crimson Trace likewise recognized that the attorney-client privilege applied to
communications between attorneys in a firm and in-house counsel. (Crimson Trace,
supra, 326 P.3d at p. 1183.) The court reasoned that unlike the judge-made law on the
attorney-client privilege in other jurisdictions, Oregon’s attorney-client privilege was
established by statute and was a matter of legislative intent. (Crimson Trace, supra, 326
P.3d at pp. 1192-1193.) The Oregon code enumerated five exceptions to the privilege,
but did not include a fiduciary exception. Therefore, that exception did “not exist in
Oregon.” (Id. at pp. 1192, 1195.)
Here, we need not determine which of these approaches is most persuasive,
because we are not at liberty to adopt the fiduciary or current client exceptions to the
attorney-client privilege. As the Crimson Trace court found in regard to Oregon law, in
California it is well-settled that “the attorney-client privilege is a legislative creation,
which courts have no power to limit by recognizing implied exceptions.” (Costco, supra,
47 Cal.4th at p. 739; Wells Fargo, supra, 22 Cal.4th at p. 206; HLC Properties, Ltd. v.
Superior Court (2005) 35 Cal.4th 54, 67; Citizens for Ceres v. Superior Court (2013) 217
Cal.App.4th 889, 912 [“we are forbidden to create privileges or establish exceptions to
privileges through case-by-case decisionmaking”]; Elijah W. v. Superior Court (2013)
216 Cal.App.4th 140, 157 [“courts have no power to recognize implied exceptions to the
lawyer-client privilege”]; Roman Catholic Archbishop of Los Angeles v. Superior Court
(2005) 131 Cal.App.4th 417, 441.) “Our deference to the Legislature is particularly
15
necessary when we are called upon to interpret the attorney-client privilege, because the
Legislature has determined that evidentiary privileges shall be available only as defined
by statute. (Evid. Code, § 911.) Courts may not add to the statutory privileges except as
required by state or federal constitutional law [citations], nor may courts imply unwritten
exceptions to existing statutory privileges.” (Roberts v. City of Palmdale, supra, 5
Cal.4th at p. 373.) “The area of privilege is ‘one of the few instances where the Evidence
Code precludes the courts from elaborating upon the statutory scheme.’ ” (Citizens for
Ceres, at p. 913.) The California Evidence Code enumerates eight exceptions to the
attorney-client privilege; the “fiduciary duty” or “current client” exceptions are not
among them. Accordingly, neither exception exists under California law. (Wells Fargo,
at p. 209.)
Indeed, our Supreme Court rejected the notion that a fiduciary exception to the
attorney-client privilege exists in Wells Fargo, supra, 22 Cal.4th 201. There, Wells
Fargo was a cotrustee of a trust. Certain beneficiaries of the trust, the Boltwoods,
accused the cotrustees of misconduct. Wells Fargo petitioned the probate court to settle
its accounts and approve its resignation as cotrustee. (Id. at p. 205.) During the ensuing
litigation, the Boltwoods requested that Wells Fargo produce various documents related
to the trust. Wells Fargo asserted the attorney-client privilege as to documents reflecting
communications with its in-house and outside attorneys about the Boltwoods’ claims of
misconduct. (Ibid.) The Boltwoods argued that Wells Fargo was required to produce
privileged communications “to fulfill its statutory and common law duties as a trustee to
report to the beneficiaries about the trust and its administration,” and that its duties as a
trustee took precedence over the attorney-client privilege. (Id. at p. 206.) Our Supreme
Court rejected the contention that a trustee’s reporting duties trumped the privilege. (Id.
at p. 211.) The court explained: “The privileges set out in the Evidence Code are
legislative creations; the courts of this state have no power to expand them or to
recognize implied exceptions.” (Id. at p. 206, italics added.) “The attorney-client
privilege is commonly regarded as ‘fundamental to . . . the proper functioning of our
judicial system’ [citation] and thought to ‘promote broader public interests in the
16
observance of law and administration of justice’ [citation]. If the Legislature had
intended to restrict a privilege of this importance, it would likely have declared that
intention unmistakably, rather than leaving it to courts to find the restriction by inference
and guesswork in the interstices of the Probate Code.” (Id. at p. 207.)
Wells Fargo acknowledged that courts in other jurisdictions had generally given a
trustee’s reporting duties precedence over the attorney-client privilege. (Wells Fargo,
supra, 22 Cal.4th at p. 208.) It pointed to U.S. v. Mett (9th Cir. 1999) 178 F.3d 1058, as a
case typifying such decisions. Mett explained that the so-called “fiduciary exception”
was based in two distinct rationales. One rationale was that the exception derived from a
trustee’s duty to disclose information to beneficiaries; “[v]iewed in this light, the
fiduciary exception can be understood as an instance of the attorney-client privilege
giving way in the face of a competing legal principle.” (Id. at p. 1063.) Wells Fargo held
such a rationale was incompatible with California law. (Wells Fargo, at p. 209.) The
court explained that in other jurisdictions, courts “consider themselves free, in a way we
do not, to create exceptions to the privilege.” (Id. at p. 208.) “What courts in other
jurisdictions give as common law privileges they may take away as exceptions. We, in
contrast, do not enjoy the freedom to restrict California’s statutory attorney-client
privilege based on notions of policy or ad hoc justification.” (Id. at p. 209.)
Wells Fargo thus forecloses Mireskandari’s argument that a fiduciary or current
client exception to the attorney-client privilege exists. Just as the trustee’s reporting
duties did not trump the attorney-client privilege in Wells Fargo, in the absence of a
statutory exception, the Firm’s ethical duties to its client do not trump assertion of the
privilege here.
Mireskandari attempts to defeat this conclusion by arguing that application of the
Thelen and SonicBlue rationales would not actually “carve out an exception for the
attorney-client privilege” but would simply “enforce existing laws” and “prevent law
firms from exploiting an impermissible conflict.” He points out that Business and
Professions Code section 6068, subdivision (e)(1), requires that an attorney “maintain
inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of
17
his or her client.” Subdivision (m) of section 6068 imposes a duty to “respond promptly
to reasonable status inquiries of clients and to keep clients reasonably informed of
significant developments in matters with regard to which the attorney has agreed to
provide legal services.” The Rules of Professional Conduct, rule 3-500, likewise requires
that a lawyer keep the client “reasonably informed about significant developments
relating to the employment or representation . . . .” Furthermore, attorneys have a
“fiduciary obligation to disclose material facts to their clients, an obligation that includes
disclosure of acts of malpractice.” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42
Cal.4th 503, 514.) Rule 3-310(C) prohibits an attorney from, without the informed
consent of each client, accepting representation of more than one client in a matter in
which the interests of the clients potentially or actually conflict. “An attorney violates
the duty of loyalty to the client by assuming a position adverse or antagonistic to the
client.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 301; see
also Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
The answer to these arguments is threefold. First, despite Mireskandari’s attempts
to argue otherwise, recognition of the fiduciary or current client exceptions would clearly
amount to adoption of an implied exception to the attorney-client privilege, in
contravention of the well-settled principles set forth ante. (Wells Fargo, supra, 22
Cal.4th at pp. 207-209.)
Second, Mireskandari is correct that a law firm’s representation of itself, or one of
its partners, in regard to a dispute or a threatened claim by a current client may raise
thorny ethical issues. (See, e.g., St. Simons, supra, 746 S.E.2d at pp. 105-106
[acknowledging that under Georgia law, when an attorney seeks advice from in-house
counsel about an actual or perceived malpractice claim, a conflict is imputed to all
attorneys in the firm, creating a potential ethics violation]; City and County of San
Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847 [“Normally, an attorney’s
conflict is imputed to the law firm as a whole”]; Chambliss, The Scope of In-Firm
Privilege, supra, 80 Notre Dame L.Rev. at p. 1722 [“the role of firm counsel raises a
number of ethical and regulatory issues that are unique to the law firm context”].)
18
However, it does not follow that the looming specter of ethical issues mandates the
extinguishment of the attorney-client privilege. (RFF, supra, 991 N.E.2d at p. 1079
[counsel’s failure to avoid a conflict of interest should not deprive the client of the
privilege]; Crimson Trace, supra, 326 P.3d at p. 1195 [“rules of professional conduct
may require or prohibit certain conduct, and the breach of those rules may lead to
disciplinary proceedings. But that has no bearing on the interpretation or application of a
rule of evidence that clearly applies”]; Garvy v. Seyfarth Shaw LLP (Ill. App. 2012) 359
Ill. Dec. 202 [966 N.E.2d 523, 538] [the violation of ethics rules is not relevant to the
issue of privilege].) We do not intend to condone, or minimize the significance of, an
attorney’s violation of the Rules of Professional Conduct.8 “Few precepts are more
firmly entrenched than the fiduciary nature of the attorney-client relationship, which must
be of the highest character.” (Styles v. Mumbert (2008) 164 Cal.App.4th 1163, 1167.) If
an attorney violates the Rules of Professional Conduct, he or she may be subject to
discipline. (Bus. & Prof. Code, § 6077.) But nothing in the Evidence Code suggests that
a potential or actual conflict of interest arising under the circumstances presented here
abrogates the attorney-client privilege.
As a practical matter, it is not a foregone conclusion that an attorney’s consultation
with in-house counsel in regard to a client dispute will always be adverse to the client. A
law firm is not necessarily disloyal to a client “by seeking legal advice to determine how
best to address the potential conflict, regardless of whether the legal advice is given by
in-house counsel or outside counsel.” (RFF, supra, 991 N.E.2d at p. 1078.) The
attorney’s and client’s interests are likely to dovetail insofar as the attorney seeks to
resolve the dispute to the client’s satisfaction, or determine through consultation with
counsel what his or her ethical and professional responsibilities are in order to comply
with them. “[A]n attorney’s or a law firm’s duty of loyalty to a client is not always
painted in bright lines. It may not always be clear when the interests of the client and the
8 We express no opinion on whether any breach occurred here.
19
law firm have become so adverse that withdrawal is required in the absence of client
waiver, and even when it is clear that withdrawal is necessary, a law firm may need to
consider how to minimize the potential adverse consequences of withdrawal to the
client . . . .” (Id. at p. 1073.)
Third, recognition of the attorney-client privilege under these circumstances does
not undercut a firm’s duty to keep a client apprised of developments in the case or alert
the client to an incident of malpractice. The privilege protects confidential
communications between lawyer and client, but does not excuse the firm from reporting
the fact it has committed malpractice. Should an attorney’s consultation with in-house
counsel reveal that the attorney, or the firm, has committed malpractice, the attorney or
firm would be obliged to report the malpractice to the client, although the confidential
communication itself would remain privileged. “Preserving the privileged nature of [the]
communications does not affect a law firm’s duty to provide a client with ‘full and fair
disclosure of facts material to the client’s interests.’ ” (RFF, supra, 991 N.E.2d at
p. 1076.)
4. Determination of whether an attorney-client relationship exists
Mireskandari worries that applying the attorney-client privilege in the context
presented here will allow firms to create artificial attorney-client relationships by simply
labeling firm attorneys “clients,” in order to negate the firm’s duties and place
information regarding the representation behind the cloak of privilege. Mireskandari’s
concerns are mitigated for at least two reasons. First, as noted ante, knowledge that is not
otherwise privileged does not become so merely by being transmitted to an attorney.
“ ‘ “Obviously, a client may be examined on deposition or at trial as to the facts of the
case, whether or not he has communicated them to his attorney. [Citation.] While the
privilege fully covers communications as such, it does not extend to subject matter
otherwise unprivileged merely because that subject matter has been communicated to the
attorney.” ’ ” (Costco, supra, 47 Cal.4th at p. 735.)
Second, the privilege will attach only when a genuine attorney-client relationship
exists. RFF held that four prerequisites must be present in order for the attorney-client
20
privilege to apply to confidential communications between law firm attorneys and the
firm’s in-house counsel concerning a malpractice claim: (1) the law firm must have
designated, either formally or informally, an attorney or attorneys within the firm to
represent the firm as in-house or ethics counsel, so that there is an attorney-client
relationship between in-house counsel and the firm when the consultation occurs;
(2) where a current outside client has threatened litigation against the law firm, the in-
house counsel must not have performed any work on the particular client matter or a
substantially related matter; (3) the time spent on the in-house communications may not
have been billed to the client; and (4) the communications must have been made in
confidence and kept confidential. (RFF, supra, 991 N.E.2d at pp. 1068, 1080.) We
believe these factors provide a helpful template for a court in determining whether a
genuine attorney-client relationship existed between in-house counsel and a law firm’s
attorneys or the firm itself. If the in-house attorney has billed the outside client in the
underlying matter for his or her time, a court might readily infer that the attorney was
acting as counsel to the outside client, rather than to the firm or the firm’s lawyer. If the
attorney was designated as the firm’s ethics counsel, general counsel, or a similar
position prior to the time he or she was consulted, a court might logically infer that he or
she was actually acting as the firm’s or a firm lawyer’s counsel. If the attorney has not
performed work on the underlying matter, this inference is strengthened. Conversely, if
an attorney has actually worked on the underlying matter for the outside client, a trial
court might readily infer the sort of after-the-fact or inauthentic relationship about which
Mireskandari expresses concern. Thus, while the RFF factors are not prerequisites to
establishment of an attorney-client relationship under California law,9 they are among the
factors that a trial court may analyze in determining whether an actual attorney-client
relationship existed.
9 Of course, the fourth factor, confidentiality, is necessary for the privilege to attach.
(§§ 952, 954.)
21
5. Application here
We turn next to application of the foregoing principles. “The party claiming the
privilege has the burden of establishing the preliminary facts necessary to support its
exercise, i.e., a communication made in the course of an attorney-client relationship.
[Citations.] Once that party establishes facts necessary to support a prima facie claim of
privilege, the communication is presumed to have been made in confidence and the
opponent of the claim of privilege has the burden of proof to establish the communication
was not confidential or that the privilege does not for other reasons apply.” (Costco,
supra, 47 Cal.4th at p. 733; Citizens for Ceres v. Superior Court, supra, 217 Cal.App.4th
at pp. 898, 911.)
Whether an attorney-client relationship exists is a question of law unless the
evidence is in conflict. (Responsible Citizens v. Superior Court, supra, 16 Cal.App.4th at
p. 1733.) When the evidence conflicts, whether the attorney-client privilege applies to a
particular communication is a question of fact. (Kerner, supra, 206 Cal.App.4th at
p. 117; HLC Properties, Ltd. v. Superior Court, supra, 35 Cal.4th at p. 60.)
As a matter of law, petitioners failed to establish preliminary facts showing an
attorney-client relationship existed between Durbin and Shelton. The Firm did not
include Durbin’s declaration in its opposition to the motion to compel. Shelton did not
mention Durbin in the deposition excerpts attached to the motion, nor did she file a
declaration in support of the motion. Durbin’s normal role was not as general or ethics
counsel to the firm. Instead, he was purportedly “deputized” by Swope and Christman,
after the dispute arose, specifically to deal with the Mireskandari case. Even more
significantly, Durbin actually worked on the Daily Mail case, supervising the preparation
of pleadings. Under these circumstances, petitioners have failed to establish Shelton’s
communications with Durbin were confidential communications made in the course of an
attorney-client relationship between them. Insofar as the trial court’s ruling applied to
communications between Durbin and Shelton, its ruling was correct.
Mireskandari contends that petitioners also failed to establish an attorney-client
relationship between Shelton and Swope or Christman. He urges that the declarations
22
and other materials offered in opposition to his motion below showed Shelton believed
Swope was her attorney, whereas Swope and Christman believed they were the Firm’s
attorneys. Thus, he urges, the evidence reflected only a unilateral or “hindsight” belief in
representation by the Firm’s attorneys. (See generally Zenith Ins. Co. v. O’Connor
(2007) 148 Cal.App.4th 998, 1010; Fox v. Pollack (1986) 181 Cal.App.3d 954, 959.)
Petitioners disagree, arguing that the declarations presented, as well as excerpts from
Shelton’s deposition attached to the motion to compel, were sufficient to establish a
prima facie showing of communications made in the course of an attorney-client
relationship.10
Mireskandari did not raise this contention below. The sole ground for his motion
to compel was that the attorney-client privilege did not attach when the Firm acted as
attorney to both itself and to him. Thus, the parties did not brief, and the trial court did
not rule upon, the question of whether petitioners’ showing was sufficient. Petitioners
argue that under these circumstances, Mireskandari’s arguments must be disregarded.
(See Medical Bd. of California v. Superior Court (1991) 227 Cal.App.3d 1458, 1462;
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013)
¶ 15:23, p. 15-18 (rev. # 1, 2013).) We agree. In any event, Mireskandari’s contention
lacks merit. Shelton testified at her deposition that she considered Swope to be her
attorney. Swope declared that he had numerous communications with Shelton in his
capacity as General Counsel for the purpose of advising her regarding her responses to
Mireskandari’s complaints and management of the client relationship. Christman
10 Petitioners also urge that because Mireskandari filed, in response to our order to
show cause, an unverified opposition rather than a “true return,” all allegations in the
petition must be deemed admitted. (See Bank of America, N.A. v. Superior Court (2013)
212 Cal.App.4th 1076, 1084-1086 [the failure to submit a return by verified answer or
demurrer “is not a technicality, but is an integral and critical step in the procedure for
determining the merit of a petition for extraordinary relief”; in the absence of a true
return, all well-pleaded and verified allegations of the petition are deemed to be true].)
These principles are not dispositive here in that Mireskandari does not dispute the facts
set forth in the petition.
23
declared that Shelton sought legal advice about the Mireskandari matter, and that he gave
her such advice in his official capacity as Claims Counsel for the Firm. From these
materials, the trial court could have concluded, as a factual matter, that petitioners met
their preliminary burden to establish the existence of an attorney-client relationship. (See
Crimson Trace, supra, 326 P.3d at p. 1189.) We leave it to the trial court to address, in
the first instance, this question and any further issues that may remain in regard to
Mireskandari’s motion to compel.
6. The exceptions to the attorney-client privilege in sections 958 and 962 are
inapplicable.
Mireskandari alternatively argues that the exceptions to the attorney-client
privilege for communications regarding breach of duty (§ 958) and for joint clients
(§ 962) apply to Shelton’s communications with in-house counsel. We disagree.11
a. Section 958
Section 958 provides that there is 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.” Mireskandari argues that the
communications at issue here fall within the express terms of the exception, given that he
has sued petitioners for malpractice, breach of fiduciary duty, and breach of contract.
However, as petitioners point out, section 958 has been construed to apply only to
communications between the client and the attorney charged with malpractice.
Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 386, considered
whether, in an action by a client against a former attorney for malpractice,
communications between the client and the attorneys representing the client in the
malpractice action were protected by the attorney-client privilege. Schlumberger
11 Petitioners argue that we need not consider these contentions because
Mireskandari failed to present them below. (Medical Bd. of California v. Superior Court,
supra, 227 Cal.App.3d at p. 1462.) To expedite resolution of the issues, however, we
exercise our discretion to consider Mireskandari’s arguments.
24
concluded that they were. The court reasoned: “Evidence [C]ode section 958 was not
intended to abrogate the privilege as to communication between the client and the lawyer
representing the client when suit is filed against a former lawyer for malpractice. The
exception is limited to communications between the client and the attorney charged with
malpractice.” (Id. at p. 392, fn. omitted.) There was no support for the theory that
section 958 permits discovery of communications between the client and the attorney
representing the client in a malpractice action against a former attorney. (Id. at pp. 392-
393.) Thus, communications between a client and an attorney representing the client in a
malpractice action against a former attorney are privileged. (Id. at p 394.)
In Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436(Travelers), client Becknell retained attorney Klein to bring a medical malpractice action
on her behalf. During the representation Klein notified his insurer, Travelers, of a
potential claim by Becknell, as required by his policy, but continued to represent
Becknell for 10 months thereafter. (Id. at pp. 439-440.) Eventually Klein substituted out
of the case. Becknell sought, in furtherance of her legal malpractice suit, to compel
disclosure of documents in Travelers’ claims files generated prior to the date Klein
substituted out. Travelers rejected the contention that section 958 applied. The court
reasoned: “We . . . construe the exception of section 958 as being ‘limited to
communications between the client and the attorney charged with the malpractice,’ as
held by Schlumberger Limited v. Superior Court[, supra,] 115 Cal.App.3d [at p.] 392.
While Schlumberger involved a former attorney’s effort to discover communications
between the former client and its new attorney” and in Travelers the situation was
reversed, “here as well, the statute applies only to communications between the attorney
(Klein) and the client (Becknell). It does not apply, however, to communications
between Klein and Travelers or between Travelers and its attorneys.” (Travelers, at
pp. 445-446; see also Brockway v. State Bar (1991) 53 Cal.3d 51, 63 [section 958 only
authorizes disclosure of relevant communications between a client and an attorney
charged with professional wrongdoing].)
25
These authorities answer the question here. Any communication between
Mireskandari and Shelton, or Mireskandari and the Firm, is not shielded by the privilege.
However, assuming the requisite attorney-client relationship existed between Shelton,
Swope, and Christman, confidential communications between them regarding the billing
dispute and Mireskandari’s dissatisfaction with the Firm’s representation do not fall
within section 958’s ambit.
Mireskandari argues that the communications at issue relate to “an issue of breach
by” petitioners, and therefore “fall within the express terms of section 958.” But if the
statute is read as literally and broadly as Mireskandari appears to suggest, the attorney-
client privilege could never exist between an attorney charged with malpractice and his or
her defense counsel. Communications between the defendant attorney and defense
counsel would surely be “relevant to an issue of breach[] by the lawyer,” whether
between in-house or outside counsel, and whether made during or after the
representation. But Mireskandari cites no authority applying section 958 in this fashion,
and we are aware of none.
Mireskandari urges that section 958 should apply because all the attorneys
participating in the communications were the Firm’s, and therefore his, lawyers; all the
Firm’s lawyers owed him fiduciary duties of disclosure; and all the lawyers were his
agents. (See Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 445 [“by retaining
a single attorney, a client establishes an attorney-client relationship with any attorney
who is a partner of or is employed by the retained attorney”].) But the communications
sought here are not between Mireskandari and attorneys in the firm; they are between the
attorneys themselves. Accordingly, section 958 does not apply. (Travelers, supra, 143
Cal.App.4th at pp. 445-446.)
b. Section 962
Mireskandari also contends that the “joint client” exception embodied in section
962 defeats the attorney-client privilege. That section provides: “Where two or more
clients have retained or consulted a lawyer upon a matter of common interest, none of
them, nor the successor in interest of any of them, may claim a privilege under this article
26
as to a communication made in the course of that relationship when such communication
is offered in a civil proceeding between one of such clients (or his successor in interest)
and another of such clients (or his successor in interest).” (See Rockwell Internat. Corp.
v. Superior Court (1994) 26 Cal.App.4th 1255, 1267.) “Case law has established that
joint clients are two or more persons who have retained one attorney on a matter of
common interest to all of them, such as where the attorney represents both an insurer and
its insureds. [Citation.] ‘In such a situation, the attorney has two clients whose primary,
overlapping and common interest is the speedy and successful resolution of the claim and
litigation.’ ” (Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 223;
see also Glacier Gen. Assurance Co. v. Superior Court (1979) 95 Cal.App.3d 836, 842.)
Here, Shelton and Mireskandari were not joint clients for purposes of section 962.
Shelton and Mireskandari did not retain the Firm “upon a matter of common interest.”
Mireskandari retained the Firm and Shelton to represent him in the Daily Mail case;
Shelton consulted with in-house counsel not as a party to that action, but to obtain advice
on how best to address Mireskandari’s complaints about billing and his threats to hold the
firm responsible for any damages he suffered. Mireskandari and Shelton were not co-
parties; they did not employ the same attorney to oppose claims of an adversary or pursue
a claim as joint plaintiffs; they were not represented by the same attorney in a business
transaction. (See Roush v. Seagate Technology, LLC, supra, 150 Cal.App.4th at p. 225.)
Mireskandari has cited no case finding persons were joint clients under circumstances
analogous to those presented here, and we are aware of none. Section 962’s joint client
exception therefore does not apply.
27
DISPOSITION
The petition is granted in part and denied in part. The trial court is directed to
vacate its order compelling discovery insofar as it relates to communications between
Shelton and Swope or Christman. The matter is remanded to the trial court for further
proceedings consistent with this opinion. Each party shall bear its own costs.
CERTIFIED FOR PARTIAL PUBLICATION
ALDRICH, J.
We concur:
KLEIN, P. J.
KITCHING, J.
28