Summarizing, explaining and commenting on legal developments impacting California Lawyers and Judges
The Second District, on remand from the California Supreme Court, holds a government entity need not disclose any invoices in pending litigation under the Public Records Act. Disclosures in closed matters required under the act are limited to fee totals, if a trial court concludes it would not reveal litigation strategy. A trial court cannot review redacted portions of attorney invoices to rule on the government entity’s claim the information in the invoice is privileged.
The ACLU requested the invoices of law firms defending the County in police brutality cases under the Public Records Act (PRA). The County agreed to produce invoices for three cases no longer pending, redacting attorney-client privileged and work product information. It refused to produce invoices for pending cases based on attorney-client privilege and work product under PRA exemptions.
The case made its way to the California Supreme Court, which reasoned the PRA should increase freedom of information. The attorney-client privilege is to safeguard the confidential relationship between client and attorney. The Supreme Court concluded the privilege turned on the content and purpose of the communications, not their form. Only communications seeking or delivering the attorney’s legal advice or representation are privileged, because E.C. § 952 suggests a nexus between the communication and the attorney’s professional role. The Evidence Code references to “consultation” between attorney and client, underscores the privilege does not apply to every single communication transmitted confidentially between lawyer and client. The “heartland” of the privilege protects communications that bear some relationship to the attorney’s provision of legal consultation. … Read full Post
The Second District holds facts supporting a legal malpractice claim are insufficient to support a breach of fiduciary duty claim. Breach of fiduciary duty requires an additional showing the attorney breached a duty of confidence or loyalty.
Broadway Victoria, LLC, was a commercial real estate company owned by Anita Lorber. She also owned a textile manufacturing business, Lorber Industries of California, Inc. Lorber Industries leased a parcel of industrial land from Elixir Industries. The lease gave Lorber Industries a right to first refusal if a third party offered to buy the property during the lease term. Elixir sold the property without extending Lorber Industries its right of first refusal.
When Lorber Industries reorganized under Chapter 11, it asked the bankruptcy court to authorize it to assume the lease as debtor-in-possession, and to assign it to the highest bidder. Broadway Victoria submitted the highest bid, and the bankruptcy court authorized Lorber Industries to assume the lease and assign it to Broadway Victoria. … Read full Post
The Fourth District holds an inadvertent disclosure of an attorney-client communication to a third party is not a knowing waiver. An attorney who improperly uses inadvertently disclosed attorney-client communications can be disqualified.
McDermott, Will & Emery LLP (McDermott) attorney Jonathan Lurie provided estate planning services for Marilyn and Dick Hausman. Dick managed Marilyn’s assets through MHI. McDermott also represented MHI on corporate, employment, and other miscellaneous matters. Dick and Marilyn’s son Rick and William Cox were officers of MHI. After Marilyn’s death Dick and Rick struggled for control over MHI.
Dick received an email from his attorney Mark Blaskey with his thoughts, impressions, and advice. Dick inadvertently forwarded Blaskey’s email to Ninetta Herbert, the wife of Gavin Herbert, Dick’s brother-in-law attempting to act as an intermediary to resolve the dispute. Ninetta forwarded the email to Gavin. … Read full Post
The Second District holds there is no privilege when attorney-client communications are disclosed to a public relations consultant who was neither necessary for the communications between the attorney and client, nor necessary to further the interests of the client.
Nicholas Behunin, represented by Leonard Steiner and Steiner & Libo, sued Charles and Michael Schwab over a business dispute. Steiner hired Levick Strategic Communications to create a social media campaign, including a website, to pressure the Schwabs to settle.
The Schwabs sued Behunin and Steiner asserting the website falsely associated them with the infamous Indonesian dictator Suharto and his family. The Schwabs served discovery seeking communications among Behunin, Steiner, and Levick. Behunin and Steiner objected based on the attorney-client privilege, asserting Steiner engaged Levick to create and execute legal strategies and tactics relating to Behunin’s litigation. The trial court ruled the documents the Schwabs sought from Levick and Steiner were not protected by the attorney-client privilege. … Read full Post
Yale v. Browne 2017 WL 947608 (Cal. Ct. App. February 9, 2017, as modified March 10, 2017)
The Second District holds under certain circumstances it may be proper to apply the concept of “comparative fault” in legal malpractice actions. While precedent had previously recognized that the concept of “contributory” negligence may apply in legal malpractice cases, this is the first opinion to approve the use of a “comparative” negligence defense in a legal malpractice action.
Valerie Yale sued her attorney, Robert Browne, II, for legal malpractice in connection with his preparation of family trust documents. Yale alleged Browne failed to accomplish her explicit goal of keeping her assets separate from marital property owned with her former husband.
Yale testified she had lost half of everything in a previous divorce, and when she married again she insisted on a prenuptial agreement to preserve her separate property. Years later Yale engaged Browne to update her trust. Although Yale read a paragraph declaring the trust included both separate and community property, she did not raise any concerns with Browne. … Read full Post
The Third District holds a client’s receipt of a motion to withdraw stating the attorney is no longer providing legal services terminates the attorney-client relationship for statute of limitations analysis.
Stanley Flake and others were represented by Neumiller & Beardslee (Neumiller) in unsuccessful real estate litigation. Neumiller moved to withdraw after trial based on successor counsel’s assumption of litigation duties. The unopposed motion was granted and Neumiller served the order on Flake.
One day short of the anniversary of the withdrawal order, Flake sued Neumiller for legal malpractice. Neumiller successfully argued on summary judgment the statute of limitations began to run on receipt of the motion to withdraw, when Flake understood that Neumiller no longer represented his interests. This was several weeks prior to the court’s order, rendering the malpractice suit, filed more than a year after receipt of the motion, untimely. … Read full Post
The Supreme Court holds the presence of correctional officers to protect an attorney representing a violent criminal defendant does not deprive the accused of the effective assistance of counsel by violating the confidentiality of attorney client communications.
Inmate Anthony Delgado was serving a life sentence under California’s Three Strikes law when he murdered two inmates as retribution for what he perceived as unfair punishment for his prior crimes. He vowed to kill again until he committed three crimes worthy of life imprisonment. He also repeatedly engaged in violent altercations with correctional officers and other inmates.
The trial court ordered two correctional officers, bound by the attorney-client privilege, present during Delgado’s meetings with his attorney. The attorney agreed to this measure. Delgado never objected to the procedure in the trial court. … Read full Post
The First District holds a press release about a malicious prosecution action is privileged under C.C. §47(d), a fair and true report of an official proceeding, but not under C.C. § 47(b), the litigation privilege.
While a student at Harvard Mark Zukerberg answered an ad posted by Paul Ceglia to provide website development services. He signed a “Work for Hire” contract, received only partial payment, and later found Facebook. Years later Ceglia sued Facebook claiming the contract Zukerberg signed entitled Ceglia to 84% of Facebook’s shares.
Ceglia’s attorney Paul Argentieri recruited DLA Piper LLP (DLA Piper), Lippes Mathias Wexler Friedman LLP (Lippes), and Kasowitz Benson Torres & Friedman LLP (Kasowitz), to co-counsel with him in a lawsuit against Zuckerberg and Facebook. Kasowitz hired an expert who determined the Work For Hire contract had been altered, informed Argentieri, and withdrew from the case. Argentieri and the other law firms filed an amended pleading. After Kasowitz notified DLA Piper and Lippes of its findings, they too abandoned the case, although Argentieri remained. Eventually Ceglia’s fraud was uncovered and his case was dismissed. … Read full Post
The Second District holds statements to the media about the allegations in a complaint are privileged under C.C. §47(d), a fair and true report of an official proceeding.
Michael Drobot owned and operated Healthsmart Pacific Inc. which owned and operated Pacific Hospital, specializing in spinal surgeries. Drobot pled guilty to bribing a state senator for his support of regulations allowing workers to “pass through” the cost of hardware used in the spine surgeries to workers’ compensation insurance carriers. Drobot also admitted to paying kickbacks, which included cash, meals, and services, to doctors, chiropractors, marketers, and others for spinal surgery referrals.
A former patient, Mary Cavalieri, sued Drobot and Healthsmart, alleging they engaged in a bribery scheme, accusing them of using hardware from a “sham” distributor, and of paying kickbacks, including supplying prostitutes, for referrals. The complaint alleged surgeons used counterfeit, non-FDA approved, knock-off medical hardware produced by a local machine shop. … Read full Post
The Supreme Court, in a four to three decision, holds whether an attorney client communication is privileged depends on whether the communication bears some relationship to the attorney’s legal services. Invoices, transmitted to allow an attorney to collect a fee, may contain unprivileged information subject to disclosure under the Public Records Act, which requires government agencies to disclose non-privileged portions of public documents.
Under the Public Records Act (PRA), the ACLU of Southern California demanded the Los Angeles County Board of Supervisors and the Office of the Los Angeles County Counsel produce invoices from law firms who billed for services in nine lawsuits alleging excessive force against jail inmates. The County agreed to produce invoices related to three lawsuits no longer pending, redacting attorney-client privileged and work product information. The County refused to provide invoices for six pending lawsuits as exempt under the act.
The trial court granted the ACLU’s petition to compel disclosure, finding the County failed to show the invoices were attorney-client privileged communications. However, the court allowed the County to redact entries reflecting attorney legal opinions or advice, or attorney mental impressions or theories. The County filed a writ of mandate that made its way to the Supreme Court. … Read full Post