(Based on The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2016-195.)
One of the most important duties of an attorney is to preserve the secrets of his client, and “[n]o rule in the ethics of the legal profession is better established nor more rigorously enforced than this one.” (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 572.)
Preserving the confidentiality of client information contributes to the trust that is the hallmark of the client-lawyer relationship. (In re Jordan (1974) 12 Cal.3d 575, 580.) Attorney-client privilege is necessary 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.” (Mitchell v. Super. Ct. (1984) 37 Cal.3d 591, 599.)
The duty of an attorney is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code, § 6068(e)(1).) The attorney-client privilege is a statutorily created evidentiary rule that protects from disclosure a “confidential communication” between a lawyer and his or her client. (Evid. Code, § 954; Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451, 456-57.)
“Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship.” (Costco v. Super. Ct. (2009) 47 Cal.4th 725, 732.)
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. 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.” (Id. at p. 733.)
For purposes of the attorney-client privilege, “confidential communication” is defined as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence.” (Evid. Code, § 952; In re Jordan (1972) 7 Cal.3d 930, 939-40.) The principle of client-lawyer confidentiality applies to information relating to the representation, whatever its source, and encompasses matters communicated in confidence by the client, and therefore protected by the attorney-client privilege, matters protected by the work product doctrine, and matters protected under the ethical standards of confidentiality, all as established in law, rule and policy. (In the Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 189.) In other words, information protected by the ethical duty of confidentiality is broader than what is protected as attorney-client privilege under the Evidence Code. (Id. at p. 189.)
“[A]n attorney is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any matter in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” (Wutchumna, supra, 216 Cal. at pp. 573-74; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 822-23.)
When an attorney’s representation of a current client may conflict with the interests of a former client, the duty to maintain client confidences is jeopardized. (M’Guinness v. Johnson (2015) 243 Cal.App.4th 602, 613.) Where an attorney’s representation of a former client is substantially related to the attorney’s representation of a current client, a presumption arises that the attorney has obtained confidential information from the former client. (Fiduciary Trust Internat. of California v. Super. Ct. (2013) 218 Cal.App.4th 465, 480.)
“To rebut the presumption, the challenged attorney has the burden of showing that the practical effect of formal screening has been achieved. The showing must satisfy the trial court that the employee has not had and will not have any involvement with the litigation, or any communication with attorneys or coemployees concerning the litigation, that would support a reasonable inference that the information has been used or disclosed. If the challenged attorney fails to make this showing, then the court may disqualify the attorney and law firm.” (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596.)
“A former client may seek to disqualify a former attorney from representing an adverse party by showing the former attorney actually possesses confidential information adverse to the former client.” (Costello v. Buckley (2016) 245 Cal.App.4th 748, 754.) “There is no strict requirement of precise relationship between the factual and legal issues of the two cases.” (Id.)
“[T]he purpose of a disqualification must be prophylactic; an attorney may not be disqualified purely as a punitive or disciplinary measure.” (Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 844.)
“A trial court’s authority to disqualify an attorney derives from the power inherent in every court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (In re Charlisse C. (2008) 45 Cal.4th 145, 159.)
Amended Tentative Ruling on Motion to Disqualify Counsel for Cross-Defendants Kim v. SK Cuisine, Case No. 2018-53297 July 26, 2019, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture. This case arises out of the parties' efforts to open and operate a sushi restaurant, Full Moon, in the Gaslamp Quarter of San Diego. The venture evidently suffered from extensive construction delays and cost o...
..is named as a cross-defendant. ROA 15, paragraph 6. At the March 22 CMC, defense counsel stated he had calendared a motion to disqualify Mauriello for May 17, 2019. The court continued the CMC to the same date. ROA 19-20. On May 17, defense counsel stated the motion to disqualify had been moved by him to July 26. The CMC was continued again. ROA 29-30. The motion to disqualify was thereafter file...
Jul 24, 2019
San Diego County, CA
HEARING ON MOTION FOR PROTECTIVE ORDER & RETURN OF DOCUMENTS FILED BY WILLIAM CLARK COLVIS * TENTATIVE RULING: * Plaintiff’s motion for a protective order, and the return of privileged documents, is denied. This motion is part of a much larger litigation battle over a change of management in a family- owned business, following the death of the family’s matriarch and the business’s majority own...
..occurred between Downey Brand attorneys and Colvis’s work e-mail address at GE. In 2018 GE and its counsel became aware of these e-mails and examined them. Colvis contends that he was consulting Downey Brand in his personal capacity; that the e-mails were therefore attorney-client privileged documents; and that GE and its attorneys should be required to turn them over. Defendant raises a question...
Feb 22, 2019
Contra Costa County, CA
Plaintiffs Eastlake Profession Center Owners Association and Pathfinder Otay Holdings, LLC's Motion to Compel Return of Privilege Documents is denied. The court finds that Plaintiffs waived the privilege when the documents were transmitted to its construction manager, Meissner Jacquet. Evidence Code § 912(a) provides that "the right of any person to claim a privilege provided by Evidence Code § 9...
..o further the interests of the client." Evidence Code §952 "permits sharing of privileged information when it furthers the attorney-client relationship; not simply when two or more parties might have overlapping interests." (Mckesson HBOC, Inc. v Superior Court (2004) 115 Cal.App.4th 1229, 1237.) Here, the documents at issue were provided to a third party and thus, the privilege is waived and the...
Feb 27, 2020
San Diego County, CA
HOPE HERNANDEZ, Plaintiff, v. COUNTY OF LOS ANGELES, et al., Defendants. Case No.: BC562261 Hearing Date: January 11, 2017 [TENTATIVE] ORDER RE: MOTION FOR A PROTECTIVE ORDER TO MAINTAIN THE CONFIDENTIALITY OF COUNTY OF LOS ANGELES’S NON-EMPLOYEE INJURY REPORT BACKGROUND This action arises out of a slip and fall accident which occurred at Harbor UCLA Medical Center, a property owned by Defenda...
..loyees. (The Court recognizes that the report was not submitted as evidence, but Plaintiff concedes that Defendant’s description of the report is accurate.) On October 6, 2016, Defendant became aware that Plaintiff was in possession of the report when Plaintiff produced the report during the deposition of Dr. Pedigo. Plaintiff states that Plaintiff was able to procure the report from the County Ha...
Jan 11, 2017
Los Angeles County, CA
maria sandoval, Plaintiff, vs. wal-mart stores, inc., Defendant. Case No.: 18STCV03999 Hearing Date: March 6, 2020 [TENTATIVE] order RE: MOTION to disqualify counsel Background Plaintiff Maria Sandoval (“Plaintiff’) filed this action against Defendant Walmart, Inc. (“Defendant”) after Defendant’s employee struck her with a pallet jack in Defendant’s store. Defendant moves to disqualify Plain...
..C. (2008) 45 Cal.4th 145, 159, internal quotations and citations omitted.) Per Business and Professions Code section 6068, subdivision (e), an attorney has an obligation to maintain client confidences. (Bus. & Prof. Code, § 6068, subd. (e).) When an attorney’s representation of a current client may conflict with the interests of a former client, the duty to maintain client confidences is jeopardi...
Mar 06, 2020
Personal Injury/ Tort
Los Angeles County, CA
Demurrer and Motion to Strike Defendant's Demurrer is overruled. As to the third cause of action for intentional tort, the complaint specifically states, 'during the course of th[e] collision, Defendant Timmons experienced Road Rage and collided with the Plaintiffs' vehicle numerous times, eventually forcing them off the road.' It further alleges, 'Timmons then approached the Plaintiffs' vehic...
..tiff's concession that the box was erroneously checked. Defendant's Motion to Strike the third cause of action is denied for the same reasons noted above. Defendant's Motion to Strike the punitive damages allegations and the exemplary damage attachment are denied. Plaintiff has clearly set forth facts that constitute malice, specifically a conscious disregard of the rights or safety of others, a...
Aug 07, 2019
Nevada County, CA
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Butte County, CA
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Butte County, CA
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