Malpractice Action by One Client Destroys Attorney-Client Privilege of Jointly Represented Client
LACBA Update, June 2015

By Gayle Eskridge, Principal, Eskridge Law, and member, LACBA Professional Responsibility and Ethics Committee. She can be reached at geskridge@eskridgelaw.net. The opinions expressed are her own.

In a case that addressed the often-vexing situation of the attorney-client privilege as it applies to jointly represented clients, the California Second District Court of Appeal ruled earlier this year that: “In a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege.” [Anten v. Superior Court (Weintraub) (2015) 233 Cal.App.4th 1254, 1256.] For attorneys who find themselves in litigation with one former joint client, this case provides long overdue guidance.

In this case of first impression, Lewis Anten and two other clients (Arnold and Lillian Rubin) retained a law firm to advise and represent them in a matter of common interest. Subsequently, Anten sued the lawyers for malpractice. In response to discovery, the lawyers objected that Anten’s discovery sought communications between the lawyers and the Rubins that were protected by the attorney-client privilege, which the Rubins expressly declined to waive. Anten moved to compel further responses, and the superior court (Hon. Elizabeth White) denied the motion on the basis of the attorney-client privilege objection. Anten petitioned for writ relief, which the court of appeal granted. [Id. at 1256-57.]

In ruling to allow the discovery, the court of appeal began with a general discussion of Evidence Code Section 958, which 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 attorney-client relationship.” The rationale for this exception is, of course, that it would be unjust to permit clients to accuse their attorneys of a breach of duty and to invoke the privilege to prevent the attorneys from producing evidence in defense of the charges. [Id. at 1258, citing Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451, 463, and also referencing Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746.]

Previous case law has clarified Evidence Code Section 958, holding that the exception is limited to communications between the lawyer charging or charged with a breach of duty, on the one hand, and the client charging or charged with a breach of duty, on the other. For example, in Schlumberger Limited v. Superior Court, the court held that a legal malpractice defendant cannot invoke the exception to permit discovery of communications between the plaintiff and the attorney representing the plaintiff in the malpractice action. [Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 386, 392-93.] Likewise, a legal malpractice plaintiff cannot invoke the exception to permit discovery of communications between the defendant attorney “and other clients of his not privy to the relationship between” the defendant and the plaintiff. [Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746-47.] Prior to Anten, however, there was no case law addressing the scenario in which one joint client charged the attorney with a breach of duty but the other joint clients did not. (“Case law has established that joint clients are two or more persons who have retained an attorney on a matter of common interest to all of them….” [Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 223].)

The court of appeal held that the facts in Anten fell “squarely within the literal terms of section 958” and went on to state:

Anten seeks production of communications relevant to issues of breach by [the lawyers] of duties arising out of the lawyer-client relationship. Thus, under the plain language of section 958, the attorney-client privilege does not apply to those communications.

The court explained that because Anten and the Rubins were joint clients, the Rubins’ communications with the lawyers were not confidential as to Anten. “[C]ommunications made by parties united in a common interest to their joint or common counsel, while privileged against strangers, are not privileged as between such parties nor as between their counsel and any of them, when later they assume adverse positions.” [Anten v. Superior Court (Weintraub) (2015) 233 Cal.App.4th 1254, 1259, citing Croce v. Superior Court (1937) 21 Cal.App.2d 18, 20, and also referencing Clyne v. Brock (1947) 82 Cal.App.2d 958, 965, Morris v. Moran (1960) 179 Cal.App.2d 463, 469, and Petty v. Superior Court (1953) 116 Cal.App.2d 20, 29-30.]

The court of appeal also stated that considerations of fundamental fairness “weigh strongly in favor” of applying Evidence Code Section 958 in this situation to preclude collusion between joint clients. The court explained as follows:

For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney’s suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client’s suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial—indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client. [Anten v. Superior Court (Weintraub) 233 Cal.App.4th at 1260.]

This case is good news for attorneys who are in the unfortunate position of having to sue one (but not the other) joint client to collect their fees, as well as for attorneys who are in the even more unfortunate position of having been sued by one (but not the other) joint client.

LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at msd@lacba.org