The Privilege Is All Mine: California Appellate Court Finds Law Firm Holds Attorney Work Product Privilege Applicable to Documents Created by Formerly Employed Attorney

In Tucker Ellis LLP v. Superior Court (A148956 – Filed 6/21/2017), the First Appellate District held that (1) the holder of the attorney work product privilege is the employer law firm rather than the former employee attorney who created the privileged documents while a firm employee, and (2) as a result, the firm did not owe a duty to obtain the former attorney’s permission before disclosing the subject documents to third parties.

In Tucker Ellis LLP, the attorney, while still employed by Tucker Ellis, exchanged a series of e-mails with a consultant retained by the firm to assist in asbestos litigation for a client. The firm also entered into an agreement with the consultant to summarize scientific studies on the causes of mesothelioma in a published review article. After the attorney departed the firm, Tucker Ellis was served with a subpoena in connection with a matter pending in Kentucky for the production of communications with the consultant regarding the article. In response, Tucker Ellis, in relevant part, produced the work product e-mails authored by the former attorney. The e-mails eventually ended up on the Internet and reached over 50 asbestos plaintiffs’ attorneys, resulting in the attorney’s termination from his new firm. After Tucker Ellis ignored the attorney’s “claw-back” letter, he filed suit against the firm for negligence, among other causes of action. The trial court granted the former attorney’s motion for summary adjudication on the issue of duty, reasoning that the firm owed the attorney a legal duty to prevent the disclosure of the work product. Tucker Ellis filed a petition for a writ of mandate with the Court of Appeal challenging the trial court’s decision on the duty issue.

The First Appellate District first explained that while it agreed with Tucker Ellis that the firm owned the subject work product based upon Labor Code § 2860, the underlying employment agreement and policies in effect during the attorney’s employment, ownership was not dispositive of the issue of who is the holder of the privilege under Code of Civil Procedure § 2018.030. To resolve the “ambiguity” in Section 2018.030 as to whether “attorney” refers to the attorney employee who created the work product or the law firm employer, the court turned to the statute’s purpose and to applicable public policy. It explained, “the primary purpose of the privilege is to encourage attorneys to honestly and objectively evaluate cases by eliminating fear of compelled disclosure of the results of their efforts to those outside the attorney-client relationship.” The court reasoned that because the firm retained the consultant to assist in litigation for a client and that the subject e-mails were created while the attorney was an employee, Tucker Ellis was the “attorney” entitled to invoke the privilege. As for policy considerations, the court considered the common situation where numerous attorneys contribute to the work product for a particular case or client and the difficulties that would result in having to obtain their individual permission for disclosure, and in resolving conflicts when one or more of those attorneys do not agree. It also recognized the benefit of enabling the law firm to invoke the privilege where the work product was created for a then-current firm client. As such, it held that the firm was the holder of the privilege and did not owe a legal duty to secure the attorney’s permission before disclosing the documents to others.

Tucker Ellis LLP begs the question of why the law firm produced the work product in the first place; however, given the various conceivable scenarios involving these issues, the First Appellate District wisely emphasized the narrowness of its holding rather than setting forth a bright-line rule. For example, where the work product was created by a now-former equity partner and/or on behalf of a now-former client, other considerations come into play, and perhaps a different outcome would be necessary. Ultimately, however, the court’s limited, policy-oriented result will likely have broad application, as it places the law firm’s client’s interests at the forefront.

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June 27, 2017