Daily Blast January 30, 2015

The Court of Appeal, Second Appellate District, Division One (LA) issued an opinion in Anten v. Superior Court (Jan. 30, 2015, B258437) __ Cal.App.4th ___, addressing the following issue: “[when] joint clients do not sue each other but one of them sues their former attorney, can the nonsuing client prevent the parties to the lawsuit from discovering or introducing otherwise privileged attorney-client communications made in the course of the joint representation?” (Slip opn., p. 2.) The court held that “[in] a lawsuit between the attorney and one or more of the attorney’s joint clients, based on an alleged breach of a duty arising from the attorney-client relationship, relevant communications between the attorney and any of the joint clients, made in the course of the attorney-joint-client relationship, are not privileged.” (Id. at p. 3.)

Lewis Anten (“Anten”) and Arnold and Lillian Rubin (“the Rubins”) jointly retained a law firm to represent them on a matter of common interest. (Slip opn., p. 2.) Anten subsequently filed a malpractice action against the lawyers. In response to discovery propounded by Anten, the lawyers objected that Anten’s discovery sought communications between the lawyers and the Rubins that were protected by the attorney-client privilege, which the Rubins expressly declined to waive. (Ibid.) Anten moved to compel further responses. The trial court denied the motion on the basis of the attorney-client privilege. (Ibid.) Anten petitioned for writ relief. (Id. at p. 3.)

The Court of Appeal granted Anten’s petition for writ of mandate. (Slip opn., p. 7.) The court explained that under Evidence Code section 958, the communications at issue are not privileged in Anten’s lawsuit. (Id. at p. 4.) “Section 958 provides that ‘[t]here is no privilege under this article [i.e., 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.’” (Ibid. quoting Evid. Code., § 958.) Further, because Anten and the Rubins were joint clients, the Rubins’ communications with the lawyers were not confidential as to Anten. (Slip opn., p. 6.) Thus, the court concluded that section 958 prohibits the Rubins, and the lawyers on behalf of the Rubins, from invoking the attorney-client privilege in Anten’s lawsuit against the lawyers with respect to relevant attorney-client communications made in the course of the joint representation. (Id. at p. 7.)