Palmer v. Superior Court of L. A. Cnty.
| Decision Date | 25 November 2014 |
| Docket Number | No. B255182,B255182 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Edwards Wildman PALMER et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Shahrokh Mireskandari, Real Party in Interest. |
OPINION TEXT STARTS HERE
ORIGINAL PROCEEDINGS in mandate. Terry A. Green, Judge. Petition granted in part and denied in part. (Super. Ct. No. BC517799)
McLeod, Moscarino, Witham & Flynn and John M. Moscarino, Los Angeles, for Petitioners.
No appearance for Respondent.
Parker Shumaker Mills, David B. Parker, Mark A. Graf, Los Angeles, and Jason J. Rudolph, Santa Monica, for Real Party in Interest.
The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications. Adoption of the so-called “fiduciary” and “current client” exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege. In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 9621 do not apply to the circumstances presented here. Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.
Petitioner and defendant Edwards Wildman Palmer LLP (the Firm) is an internationallaw firm with 16 offices and over 600 attorneys. Petitioner and defendant Dominique R. Shelton is a former partner in the Firm's Los Angeles office. In March 2012 plaintiff and real party in interest Shahrokh Mireskandari retained the Firm to represent him in an invasion of privacy lawsuit against the Daily Mail, a newspaper based in the United Kingdom. Shelton was the Firm partner in charge of handling the case. On April 4, 2012, the Firm filed a complaint on Mireskandari's behalf against the Daily Mail and other defendants in the United States District Court for the Central District of California. Approximately seven weeks later, the Firm filed a First Amended Complaint.
The relationship between Mireskandari and the Firm was short lived and, for the most part, contentious. In June 2012, Mireskandari sent Shelton two emails expressing dissatisfaction with the Firm's billings and representation. In an email dated June 24, 2012, Mireskandari stated: In a 10–page email dated June 25, 2012, Mireskandari complained, among other things, that Shelton's estimate of the cost of the litigation had been vastly understated. He found it “impossible to understand how a budget can be so far off the mark and how any competent litigator can fail to see such a huge disparity in a ... budget.” He questioned why Shelton had purportedly failed to discern that the Daily Mail was likely to file an “anti-SLAPP motion,” 2 accused her of failing to timely advise him of this eventuality, and professed to be “deeply troubled by the swinging pendulum of advice that I have been given by you.” Mireskandari demanded that all communications between him and Shelton be in writing, “to avoid any misunderstandings.” He charged that the Firm's demand he sign an additional document “before any further work [was] undertaken” was “wholly inappropriate and unethical.” Had it not been for the involvement of his own personal legal advisor, he “would have passed this matter straight to an alternat[e] attorney to deal with.” Nonetheless, Mireskandari stated he continued to rely on the Firm for legal advice: “I relied and continue [to] rely [upon] you and your firm['s] expertise to provide me with reasonable, logical and informed advice about my matter.”
On June 25, 2012, the Daily Mail defendants filed anti-SLAPP motions in the Daily Mail case.
On August 9, 2013, Mireskandari, represented by the firm of Parker Shumaker Mills, LLP, filed the instant action for legal malpractice, breach of fiduciary duty, and breach of contract against the Firm and Shelton in Los Angeles County Superior Court.3 The allegations in his amended complaint echoed those made in his June 2012 emails. Additionally, the amended complaint alleged that because the Firm had refused to perform additional work on the case, Mireskandari was forced to hire “on short notice” the law firm of Greenberg Glusker Fields Claman & Machtinger LLP (Greenberg Glusker) “to assist in preparing oppositions to the motions to dismiss” in the Daily Mail action.
On August 16, 2012, Greenberg Glusker substituted in as counsel for Mireskandari in the Daily Mail case. The Firm and Shelton retained outside counsel to defend them in Mireskandari's state malpractice lawsuit.
During the period June 2012 to August 16, 2012, while the Firm was still representing Mireskandari in the Daily Mail lawsuit, Shelton consulted with Edwards Wildman Palmer attorneys, Jeffrey Swope and James A. Christman, concerning Mireskandari's complaints about the Firm's representation and the billing dispute.
In November 2013, Mireskandari's attorneys in the malpractice action deposed Shelton. The notice of deposition demanded production of four categories of documents. At the deposition, Shelton invoked the attorney-client privilege and refused to answer nine questions that purportedly related to privileged communications with Swope. After the deposition, the Firm produced many of the requested documents 4 but invoked the attorney-client privilege in regard to “internal law firm communications between the deponent and Edwards Wildman lawyers acting in their capacity as counsel for the firm and/or documents prepared in anticipation of litigation with the plaintiff.” The Firm produced a privilege log listing 387 documents it had withheld as protected by the attorney-client privilege.
Mireskandari moved to compel Shelton to answer the deposition questions and produce the documents withheld on privilege grounds. Relying primarily on Thelen Reid & Priest LLP v. Marland (N.D.Cal. Feb. 21, 2007) 2007 WL 578989, 2007 U.S. Dist. Lexis 17482 (Thelen ), and In reSonicBlue, Inc. (Bankr.N.D.Cal. Jan. 18, 2008) 2008 WL 170562, 2008 Bankr.Lexis 181 (SonicBlue ), Mireskandari argued that the attorney-client privilege is inapplicable when “ ‘a law firm is attorney to both an outside client and to itself.’ ” He urged that the attorney-client privilege does not attach to intrafirm communications made during, and concerning, matters related to representation of a current client.
The Firm and Shelton opposed the motion. In support they submitted the declarations of Swope and Christman. According to their declarations, Swope, a partner in the Boston office, was the Firm's general counsel; Christman, a partner in the Chicago office, was the Firm's “Claims Counsel.” Swope and Christman shared responsibility “on claims handling and loss prevention issues.” Shelton had sought Christman's advice in connection with the Mireskandari case in June 2012, after Mireskandari expressed dissatisfaction with the quality of the Firm's representation and billing. Swope had “numerous communications” with Shelton “in [his] capacity as General Counsel to the firm and for the purpose of advising Ms. Shelton regarding her responses to Mr. Mireskandari'scomplaints and the handling and management of the client relationship.” Christman gave Shelton “advice in [his] official capacity as Claims Counsel for Edwards Wildman” and worked with Swope “with respect to legal issues relating to the Mireskandari representation in June of 2012.”
Also, Swope and Christman declared that while acting in their “capacities as counsel to the firm responsible for claims handling and loss prevention,” they assigned Chicago partner Mark Durbin to the case to supervise “the preparation of pleadings that Mr. Mireskandari wanted the firm to file on his behalf, notwithstanding his existing disputes and assertions against the firm.” Swope and Christman “deputized” Durbin “to advise Ms. Shelton regarding her responses to Mr. Mireskandari's complaints and on the management of the Mireskandari client relationship.” They averred that Durbin's “communications with Ms. Shelton advising her regarding her responses to Mr. Mireskandari's complaints and on management of the client relationship with Mr. Mireskandari were as our deputy with claims handling and loss prevention responsibility and acting as legal counsel to the firm.” The Firm did not bill Mireskandari for any of Swope's, Christman's, or Durbin's time.
In light of the foregoing, the Firm and Shelton argued that the attorney-client privilege applied to communications between Shelton and lawyers acting as counsel for the Firm. In the Firm's view, in light of Mireskandari's “[h]ostile and accusatory correspondence” in June 2012, Shelton was entitled to seek the advice of lawyers within her own firm—a common practice in the legal community—and assert the privilege as to those communications. Relying primarily on Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 91 Cal.Rptr.2d 716, 990 P.2d 591 (Wells Fargo ), they argued that the federal cases cited by Mireskandari did not accurately reflect California law. They additionally pointed to cases from the supreme courts of Massachusetts and Georgia that had rejected the rationales of SonicBlue and Thelen. (RFF Family...
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...v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)—Ch. 5-C, §2.2.2(1) Edwards Wildman Palmer LLP v. Superior Court, 231 Cal. App. 4th 1214, 180 Cal. Rptr. 3d 620 (2d Dist. 2014)— Ch. 4-C, §4.2.1(3)(a) Eisendrath v. Superior Court, 109 Cal. App. 4th 351, 134 Cal. Rptr. 2d 716......
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