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June 2, 2011

Clark v. Superior Court (Verisign) (2011) 196 Cal.App.4th 37

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The Fourth District affirms the trial court’s disqualification of counsel for reviewing and failing to immediately return attorney-client privileged documents.

Grant Clark, represented by Higgs, Fletcher & Mack LLP (“Higgs”), sued VeriSign, Inc. for wrongful termination.  The trial court disqualified Higgs after it found the firm had received and excessively reviewed privileged documents.  The court determined Higgs’ conduct could affect the outcome of the litigation.  The paramount concern of protecting the public trust in the administration of justice and integrity of the bar outweighed any infringement of Clark’s right to counsel of his choice.

The Court of Appeal found there was substantial evidence to support each of the trial court’s findings. The trial court could conclude the communications were privileged without reviewing them because VeriSign’s declarations established communications between an officer or employee of VeriSign with the company’s attorney or staff.

There was substantial evidence that Higgs’ review of the documents went beyond the allowed examination to determine whether the documents were privileged.  Higgs continued to review the documents after VeriSign notified the firm that it possessed privileged documents, and used some of the information in the documents to support Clark’s claims.

Inevitable questions about the source of the firm’s knowledge would undermine the public trust and confidence in the integrity of the adjudicatory process.  Moreover, there was a “genuine likelihood” Higgs’ review of the privileged materials could affect the outcome of the proceedings.  Disqualification is a prophylactic measure to prevent future prejudice to the opposing party from information the attorney should not have possessed.

Comment: This case is another example of the importance of ethical conduct when an attorney is inadvertently exposed to an opponent’s confidential information.  Disqualification is proper for attorneys who take advantage of possession of privilege documents.

 

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