You Waived What‽

Anten v. Superior Court, No. B258437 (D2d1, as modified Feb. 10, 2015)

This is a short writ ruling on a privilege issue. It is largely based on common sense. But it has the potential to be significant when it comes to joint representations.

The question: Attorney represents Clients ## 1 and 2, who have a common interest in the same matter. After the representation ends, Client #1 sues attorney for malpractice, but Client #2 does not. In the malpractice lawsuit, can client #2 invoke the attorney-client privilege and preclude the discovery and evidentiary use of joint attorney-client communications?

The court says no. The situation falls within the literal wording of Evidence Code § 958, which says that “[t]here is no [attorney-client] privilege . . . as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” The fact that there’s a second co-client who alleges no breach does not bode otherwise, whether as a matter of statutory interpretation, or as a matter of policy. Otherwise, the non-disputing client could confound the attorney’s malpractice defense by invoking a privilege that was otherwise waived by the disputing client. That would not be fair.

Writ granted.