Christynne, I am not your lawyer...

Wood v. Superior Court, No. D076325 (D4d1 Mar. 13, 2020)

Plaintiff, a transgender woman, lodged a FEHA complaint against her gym with the DFEH. DFEH decided to bring suit. Plaintiff intervened. In discovery, Plaintiff claimed attorney-client privilege over some of her communications with the DFEH’s lawyers. The trial court overruled the privilege. Plaintiff took a writ, which the Court of Appeal denies. 

The DFEH’s lawyers represent DFEH, not Plaintiff, a fact of which Plaintiff was apparently aware. Plaintiff might well have sought legal advice from the DFEH counsel. But that’s not enough to bring the communications within the privilege. By statute, a communication is subject to the attorney-client privilege only if it is “made in the course of an attorney-client relationship.” Evidence Code § 352. If there’s no reason to believe that an attorney client relationship existed between Plaintiff and the lawyers, there’s no privilege from the getgo.

Writ denied.

The Man Wins, the Attorney Doesn't Lose, the Client Loses ...

Settle v. State of California, No. B249236 (D2d6 July 23, 2014)

Code of Civil Procedure § 1038 requires an award of costs (including attorneys’ fees) to a government entity defendant in that wins summary judgment if the court finds that plaintiff lacked a reasonable basis to bring suit. In this case, after granting the state’s summary judgment motion, the trial court assessed about $11,500 in costs and fees against both plaintiff and her attorney, jointly and severally. Section 1038, however, is silent about whether costs can be assessed against an attorney. Given the statute’s complete absence of any reference to attorneys, and in light of the other statutory remedies available to punish attorney participation in frivolous litigation—such as sanctions under § 128.7—the court here (employing some funny metaphors) finds that § 1038 does not authorize awards against attorneys.

Reversed.

When Is an Attorney also in Pro Per?

Soni v. Wellmike Enterprise Co., No. B242288 (D2d3 Mar. 26, 2014)

A law firm that prevailed in an action to recover unpaid fees from a former client sought to recover its fees in the collection action under an attorney fee provision in its retainer agreement. The firm claimed that its fees were recoverable because the firm was a solo practice and had retained outside attorneys to litigate the fee dispute, as opposed representing itself in pro per. But there was evidence that the attorneys who litigated the collection action were actually the firm’s own associates. Since pro per parties—attorneys included—can’t recover fees for work done on their own behalf, the court denied the motion.
 
The court helpfully reviews the state of the law on the pro per attorney issue. To wit:

• Pro per litigants who happen to be licensed attorneys cannot recover fees for work done on their own behalf. Trope v. Katz, 11 Cal. 4th 274 (1995).

• Corporate litigants, however, can recover their fees for the work done by in-house counsel who are employed by the firm. PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084 (2000).

• And an attorney-litigant who is sued in his or her personal capacity can recover fees for work done by other members of his or her firm, so long as the work involves the attorney’s personal interests and not those of the firm. Gilbert v. Master Washer & Stamping Co., 87 Cal. App. 4th 212 (2001); Gorman v. Tassajara Dev. Corp., 178 Cal. App. 4th 44 (2009).

• But a law firm can’t recover fees for work done by its members on behalf of the firm. Witte v. Kaufman, 141 Cal. App. 4th 1201 (2006).

• And a law firm and its partners can’t recover fees for work done by associates of the firm, where the matter involves the interests of the firm itself. Carpenter & Zuckerman, LLP v. Cohen, 195 Cal. App. 4th 373 (2011)

The rule essentially comes down to whether the attorney is representing interests that are independent of his or her own. Here, there was substantial evidence supporting a finding that the attorneys who litigated the case were employees of the firm. The attorneys listed the firm’s address with the state bar, the captions on the papers in the collections case identified the attorneys as working for the firm, and one attorney had filed a declaration wherein he identified himself as a member of the firm. Thus, because this case entailed firm employees advocating on the firm’s behalf, it was like Carpenter or Witte. That makes the firm a pro per attorney litigant that may not recover fees for work done on its own behalf.

Affirmed.