City of San Diego v. Superior Court, No. D073961 (D4d1 Dec. 19, 2018)
Plaintiff is a detective, bringing some employment-related litigation with city’s police Department. Plaintiff’s lawyer also represents someone claiming that the Department fouled up a child sex assault investigation. As part of the leak investigation, Department's internal affairs interviewed Plaintiff, suspecting that she might be the leaker. The IAB folks ask about Plaintiff's conversations with her lawyer. Over her objections, they tell her―on insinuated threat of discipline―that she needs to answer. And she does. Some of these interviews were attended by a Deputy City Attorney. Plaintiff was repped in the interviews by a union lawyer, but her employment litigator was not present.
Plaintiff then moves to DQ the City Attorney’s office in the employment case, for invading her privilege. It not particularly debatable that City improperly violated Plaintiff’s attorney-client privilege. Moreover, because Deputy City Attorney participated in questioning Plaintiff about matters related to litigation when Plaintiff's lawyer wasn’t there, the Deputy violated Rule of Professional Conduct 2-100, which prohibits an attorney from communicating with a represented party.
That all said, a transcript of the interview was filed with the Court in camera. Whatever was elicited had nothing whatsoever to do with Plaintiff's employment case. Because DQ is premised on an opponent’s obtaining an unfair advantage, getting privileged, but irrelevant, info shouldn’t merit disqualifying the City Attorney's office. If there’s no prejudice to the ligation, whether the City Attorney should be subject to some sanction for violating the rules is not the Court’s role. That’s for the State Bar.
Affirmed.
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