An Attorney’s Communications to Another Attorney Regarding A Legal Opinion of an Ongoing Case is Protected by the Attorney-Client Privilege

Keith A. Liker, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Published:  10.01.2011

The California Court of Appeal, Second District, has ruled recently that the attorney-client privilege extends to and protects an attorney’s communication of his or her legal opinion of an ongoing case which is shared with other members of the attorney’s own firm.

In Fireman’s Fund Ins. Co. v. Superior Court of Los Angeles County (Front Gate Plaza, LLC) (decided June 28, 2011; 2011 DJDAR 9647), the court was required to examine and rule upon the issue of whether the attorney-client privilege was limited only to communications between an attorney and his or her client, or whether it was broad enough to include communications relating to a client’s matter or interests among and between multiple counsel also representing the client.  The court ruled that the attorney-client privilege is not limited only to communications existing directly between a client and his or her attorney, but also extends to all attorneys employed by the client.  

In Fireman’s Fund, the insurance company’s insured sued the insurer for, among other things, bad faith in the handling of certain shopping mall property damage claims as the result of wind and rain storms.  During the litigation, the insurer’s counsel was contacted by the director of accounting of the insured, who claimed to be a whistleblower having possession of evidence which demonstrated that the insured’s insurance claims were fraudulent.  The whistleblower provided counsel for the insurer with over 5,000 pages of documents.  Counsel for the insurer, acting on the information from the whistleblower, then demanded that the insured produce copies of the documents which had been received from the whistleblower.  The insurer filed a cross-complaint against its insured, asserting that the insured’s claim was fraudulent.  The insurer’s motion for leave to file the cross-complaint was supported by a declaration from the whistleblower, which had been drafted by counsel for the insurer.

Thereafter, the parties became embroiled in protracted discovery disputes regarding the whistleblower and the issue of the fraudulent insurance claims.  A referee was appointed by the court to hear, determine and make recommendations as to all discovery and evidentiary issues regarding the use of the whistleblower’s documents.  The discovery dispute also entailed the deposition of one of the attorneys for the insurer who had been in contact with the whistleblower.  During this deposition, the insured’s counsel asked certain questions to which the insurer’s counsel objected on the grounds of attorney-client privilege and work product doctrine.  The insured moved to compel answers to specific questions objected to by the deposed attorney as being privileged.  The trial court granted the motion to compel, finding that the privilege was inapplicable to communications between the attorney and other attorneys and staff of her firm, because those attorney communications were not between counsel and the client.  The trial court also found the objection on the grounds of work product to be inapplicable because the attorney’s thoughts and mental impressions had not been reduced to writing.

The Court of Appeal issued a writ of mandate directing the trial court to vacate its order granting the motion to compel.  In ruling that the attorney-client privilege applied to communications between the attorney and other members of her firm who represented the insurer, the court held that under Evidence Code section 952, a “confidential communication” remains confidential when it is disclosed “to no third persons other than those who are present to further the interests 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.”  The court also looked to Evidence Code section 954, which emphasizes that the relationship between an attorney and client exists between the client and all attorneys employed by the law firm retained by the client.

The second issue addressed by the court was to clarify that the absolute attorney work product protection also extends to an attorney’s opinions, conclusions and mental impressions which have not been reduced to writing.  The court noted that it would be “patently absurd to provide a greater protection for written opinion work product than unwritten opinion work product.”

This decision is significant because it clearly sets forth that the attorney-client privilege extends to an attorney’s communications with other members of his or her firm, even if the communication is not directly between the attorney and the client.  This decision is also important because it clarifies that the attorney work product doctrine also extends to an attorney’s unwritten opinions.