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California
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Attorney Work Product Holder of Privilege-Code of Civil Procedure 2016
(Lasky, Haas, Cohler & Munter v. Superior Court)
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Attorney Work Product Holder of Privilege-Code of Civil Procedure 2016
(Lasky, Haas, Cohler & Munter v. Superior Court)

Holder of the Attorney of the Work Product Privilege 2016 of the Code of Civil Procedure
The Attorney Is the Exclusive Holder of the Work Product Privilege-2016 of the Code of Civil Procedure

[1b] Section 2016* is silent as to who is the holder of the privilege. However, cases have construed the language of the statutory privilege in light of its statutorily expressed purposes to provide that the attorney generating the work product is the exclusive holder of the privilege. (Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810 [192 Cal.Rptr. 104] [hg. den.]; Fellows v. Superior Court, supra, 108 Cal.App.3d 55, 64, [hg. den.]; Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 101 [146 Cal.Rptr. 171] [hg. den.]; American Mut. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 594 [113 Cal.Rptr. 561] [hg. den.]; Kerns Const. Co. v. Superior Court (1968) 266 Cal.App.2d 405, 411 [72 Cal.Rptr. 74]; accord: 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) Attorney's Work-Product [172 Cal.App.3d 272] Privilege, § 41.2, p. 1480.) fn. 2 These cases directly analyze the issue in the context of third party adversaries attempting to obtain discovery of the attorney's work product.

Lohman v. Superior Court, supra, 81 Cal.App.3d 90, involved discovery efforts by defendants (the former conservator for the plaintiff and the attorney who had represented the conservator) to depose the plaintiff's former attorney. They sought to discover the opinions former counsel had formed as to (1) the culpability of the conservator and his counsel for their official acts that allegedly injured plaintiff as the conservatee and (2) the effect of a Probate Code statute upon plaintiff's rights. Lohman holds that the work product privilege is held exclusively by the attorney and criticizes the earlier opinion in Mack v. Superior Court (1968) 259 Cal.App.2d 7 [66 Cal.Rptr. 280], to the extent its language suggests that the work product privilege is intended for the benefit of, and may be asserted by, the client as well as the attorney. (Id, at p. 101.) fn. 3

The most definitive analysis of the issue of the holder of the privilege is set forth in Fellows v. Superior Court, supra, 108 Cal.App.3d at pages 63-65. There a defendant insurance carrier in a "bad faith action" by its insured sought to compel discovery of the attorney work product generated by the plaintiff insured's former counsel in the prior, foundational uninsured motorist action between the insured and the carrier. The insured plaintiff had taken actual possession of the former attorney's litigation file on the prior action and issues arose in the bad faith action potentially subjecting the work product of the attorney to discovery. Writ review was granted of [172 Cal.App.3d 273] a discovery order compelling disclosure to the carrier of the work product to which the insured asserted the work product privilege. The Fellows court held after careful analysis of prior cases on the issue, within and without California, that the work product privilege is held exclusively by the attorney who generated the product. The privilege survives the termination of litigation during which it was developed. A client in possession of such product may assert the privilege in a later action on behalf of the attorney in his absence. Further, the former attorney's transmittal of the case file, containing privileged work product does not constitute a waiver by the holder because the disclosure is not to disinterested parties or third parties but, rather, is limited to the client "whose interest in nondisclosure is supported by the policy reasons which underline the creation of the privilege. (Code Civ. Proc., § 2016, subd. (g).)" (Id, at p. 66.)

The line of cases relied upon by petitioners culminates with Rumac, Inc. v. Bottomley, supra, 143 Cal.App.3d 810. Rumac involved a civil defendant's effort to compel the attorney who represented him in the prior business transaction from which the action arose to disclose in discovery the attorney's "absolute" work product developed on defendant's behalf during the transaction. The attorney moved for a protective order, asserting the work product privilege. Both the defendant and the plaintiff opposed the attorney's motion. The motion was granted as to documents representing the attorney's "impressions, conclusions, opinions, legal research and theories." (Id, at p. 813.) Only the plaintiff sought appellate review of the discovery issue after judgment. The Rumac court held that the privilege had been validly asserted by the attorney. Rumac commented that because the client was not a party to the appeal, that court need not address the separate issue of "the extent of an attorney's liability for correctly asserting the absolute privilege against his former client's wishes which proximately causes damages to his former client." (Id, at p. 812, fn. 3, italics added.)

Rumac pointed out in its analysis of whether the work product privilege should apply equally to attorney's legal services generated in a prior business transaction and in prior litigation, that "[i]n light of the legislative effort devoted to the statute, it is reasonable to believe that had the Legislature intended to limit the privilege to litigation only it would have said so." (Id, at p. 815.)

The consideration of apparent legislative intent is perhaps even more appropriate in the present case. The Legislature expressly enacted an exception to the attorney-client privilege where the subject confidential attorney-client communication is sought in actions arising from a claim of breach of duty between client and attorney. (Evid. Code, § 958; Schlumberger Ltd. [172 Cal.App.3d 274] v. Superior Court, supra, 115 Cal.App.3d at p. 392.) However, the Legislature did not create a similar exception to the work product privilege with regard to such actions between the client and the attorney. Yet, the discovery and use of the attorney's uncommunicated work product would be at least as material to determination of an attorney-client dispute (particularly legal malpractice) as would discovery and use of confidential communications. This absence of a parallel exception, together with the absolute language of the work-product privilege in section 2016, subdivision (b), supports the construction that "absolute" work product is "not subject to discovery under any circumstances." fn. 4

The beneficiaries contend that Rumac is distinguishable because there the plaintiff client who opposed his former attorney's assertion of the privilege was not a party to the appellate review of the discovery order. This argument is not persuasive. Rumac unequivocally held that the attorney was the holder of the privilege and affirmed the trial court's ruling which barred discovery by the client or his adversary. As quoted above, the comment of the Rumac court at page 812, footnote 3, of 143 Cal.App.3d, confirms its intended holding that the attorney effectively asserted the privilege against the former client. Had Rumac determined that the protective order was not lawfully granted, it would have been compelled to vacate it. Had it reached its holding on this issue only because the client was not a party to the appeal, it would have so explained and would not have commented as it did in footnote.

In accord with Rumac, supra, is Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436 [191 Cal.Rptr. 871] [petn. hg. den.]. There it was indicated that the trial court erred in possibly rejecting the application of the work product privilege asserted by an attorney sued for malpractice by his former client. The trial court ordered production by [172 Cal.App.3d 275] defendant of all work product generated while he was attorney of record for the former client in prior litigation. But because the trial court appeared to base its order only upon its resolution of the attorney-client privilege, the appellate court directed the trial court to reconsider the attorney's motion for protective order in a manner consistent with the views expressed in its opinion, stating: "We are aware of no precedent allowing even the former client of an attorney access to writings that reflect the attorney's 'impressions, conclusions, opinions, or legal research or theories.'" (Id, at p. 453.) fn. 5

The line of cases relied upon by the beneficiaries for the contrary conclusion (Kallen v. Delug (1984) 157 Cal.App.3d 940, 950 [203 Cal.Rptr. 879]; Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599 [124 Cal.Rptr. 297]; Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal.App.3d 999, 1004-1005 [124 Cal.Rptr. 668]) do not address an assertion of the work product privilege in the discovery context. Rather, they concern the ethical duty of a discharged or withdrawing attorney to provide the former client with the litigation case file upon request so that new counsel could prepare the case for trial against the client's adversaries.

These cases do not analyze the question of the validity of the privilege as between attorney and client, nor do the facts of these cases require determination of whether the attorney is precluded from asserting the privilege when persons other than the client seek to obtain discovery indirectly by forcing the client to obtain the work product from his attorney.

Weiss v. Marcus, supra, 51 Cal.App.3d at page 599, held that a client who discharges his litigation counsel and retains new counsel to consummate the pending litigation "remains the owner" of the attorney's "work product" irrespective of whether the attorney has been paid for his services.

The circumstances giving rise to this holding were that an attorney who represented a client in litigation under a contingency fee and lien was discharged by the client. He was not paid the fee he thought due him when new counsel settled the litigation after performing substantial additional work. He sued the new attorneys under a theory, inter alia, of unjust enrichment from use of the work product generated by him prior to his discharge. (Id, at p. 596.) [172 Cal.App.3d 276]

The Weiss court held that a demurrer to the "unjust enrichment" cause of action was correctly sustained because "[t]he 'work product' of an attorney belongs to the client, whether or not the attorney has been paid for his services. (See Opinions of the Com. on Legal Ethics of the L.A. County Bar Assn., Opn. No. 330, Nov. 30, 1972.)" Weiss did not separately identify the various types of materials contained in the transferred litigation file. [3] No reference was made to privileged work product material and no analysis was attained concerning the conflict between the ethical duty to produce and the language of the work product privilege. fn. 6

The bar association opinion upon which Weiss relied exclusively concerned the ethical duty of discharged counsel to comply with the discharging client's demand for the case file irrespective of the payment for the legal services represented by that work product. The opinion quotes from prior opinion No. 197 which states "We are of the opinion, however, that an attorney should not govern his actions in this particular solely by what he may legally be compelled to do, but should, as a matter of professional ethics and good taste, allow his former client or succeeding counsel to inspect and make copies of the file ...." (Id, at p. 118.) Opinion No. 330 does state the bar committee's opinion that "'work product' for which the client may be billed, belongs to the client." (Ibid) But no analysis or authority is given in support of this view.

Kallen v. Delug, supra, 157 Cal.App.3d 940, involved an attorney discharged in the course of litigation by his client. The attorney exacted a new written fee splitting agreement from the client's new attorney of record by refusing to turn over the case files until such agreement was executed. The discharged attorney sued the new attorney after the latter recovered judgment for the client and refused to honor the fee splitting agreement as void for lack of legal consideration on public policy grounds. On appeal, the Kallen court held that it is a breach of the attorney's duty imposed by rule 2-111(A)(2) of the California Rules of Professional Conduct for a discharged attorney to "... withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including ... delivering to the client all papers and property to which the client is entitled,..." (Italics added.) For this reason public policy precludes the discharged attorney from claiming as legal consideration for a split fee agreement with new counsel the transmittal of case files that the [172 Cal.App.3d 277] discharged attorney is under an ethical duty to provide. Citing Weiss, supra, 51 Cal.App.3d at page 599, the Kallen court declared the "attorney's work product belongs absolutely to the client whether or not the attorney had been paid for his services." (Kallen v. Delug, supra, 157 Cal.App.3d at p. 950.)

The Kallen court in no manner mentioned or attempted any analysis to vitiate the potential significance of the work product privilege in this context.

The third case relied upon by the beneficiaries is Academy of California Optometrists, Inc. v. Superior Court, supra, 51 Cal.App.3d at pages 1004-1005, which, like Weiss, supra, 51 Cal.App.3d 590, and Kallen, supra, 157 Cal.App.3d 940, involved a dispute between a discharged attorney of record and the former client as to the enforceability of the attorney's lien for payment of his fees, which lien was obtained in exchange for allowing the client access to the litigation file to pursue the action to consummation. That court also referred to work product in the generic, nonprivilege sense, although it recited that the file included pleadings, documents, "extensive notes, papers, memoranda, and communications collected during five years of representation." (Id, 51 Cal.App.3d at p. 1004.) No reference was made to the issue of work product privilege. The court based its holding of unenforceability of the lien upon a duty to provide the case file under rule 2-111(A)(2) of the California Rules of Professional Conduct. (Id, at p. 1005.)

So the Weiss, Kallen, and Academy analyses all rest upon the ethical duty of the discharged attorney to protect the interest of his former client by providing case files necessary to the client's continued litigation of his action. None of these cases mentions the issue of the attorney work product privilege as between discharged attorney and the client; none addresses the circumstance where disclosure of portions of the case file would ultimately be to the client's third party adversaries for a purpose adverse to the client's interests. Both rule 2-111(A)(2) relied upon in Kallen, supra, 157 Cal.App.3d 940, and Academy, supra, 51 Cal.App.3d 999, and "Opinion No. 330" relied upon in Weiss, supra, 51 Cal.App.3d 590, contemplate precluding an attorney from withholding files to the detriment of the former client. To the extent that Weiss and Kallen state that the case file "belongs to the client" in the absolute sense of legal title, these holdings would not necessarily be wholly supported by the ethical authority upon which they rely. The opinions only conclude that the attorney has an ethical duty to produce the case file when to refuse to do so would prejudice the former client. [172 Cal.App.3d 278]

[1c] Because Rumac, supra, 143 Cal.App.3d 810, Fellows, supra, 108 Cal.App.3d 55, and the earlier cases which they follow, analyze and hold upon the specific issue of the work product privilege in the context of efforts by third parties and former clients to discover "absolute" work product, we conclude that this line of cases correctly settles that the attorney is the sole holder of the privilege and may effectively assert it even as against a client.

Our conclusion is partly supported by the necessary acknowledgment that the additional factor of any third party adversary of the client seeking the work product alters the alignment of conflicting interest that exist solely between attorney and client in the Weiss line of cases. This additional factor also adds new considerations as to service of the purposes of the privilege. Although the trust beneficiaries in the underlying case have a fiduciary relationship with the trustee and although they were not opponents of the trustee when the subject work product was generated, they are presently litigation adversaries of the trustee client and thus, in this particular context, are more like than unlike the wholly adverse third party strangers involved in Fellows, supra, 108 Cal.App.3d 55 Lohman, supra, 81 Cal.App.3d 90, and American Mut. Ins. Co., supra, 38 Cal.App.3d 579. Further, there is a critical distinction between situations where the attorney's unethical withholding of work product would clearly prejudice the interests of his former client and situations where withholding would apparently serve the interests of his present client. As will later be discussed, while the beneficiaries are owed a duty of care by the trustee and the trustee's counsel, this duty, and the consequent potential civil liability, does not render the beneficiaries joint clients of the trustee's attorneys.

The beneficiaries contend that the absolute privilege is inapplicable vis- -vis attorney and client because Rumac and the line of cases preceding it all involved situations where the attorney asserted the privilege as against third parties who had interests adverse to that of the client as of the time the work product was generated. They argue that because they had a fiduciary relationship with the trustee when the subject work product was generated, and still have such legal relationship, the purpose of the privilege does not apply.

The fallacy in the beneficiaries argument is the premise that the privilege attaches only with regard to who is the client's adversary at the time the work product is generated. This is inconsistent with the express purpose of the privilege. [4] The ultimate purpose of the privilege is to promote and facilitate full factual investigation and legal research and analysis by attorneys in representation of their clients. (Schlumberger v. Superior Court, [172 Cal.App.3d 279] supra, 115 Cal.App.3d at pp. 393-394; Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 501 [165 Cal.Rptr. 748];Hickman v. Taylor (1947) 329 U.S. 495, 511 [91 L.Ed. 451, 462-463, 67 S.Ct. 385].) The protection afforded by the "absolute" privilege attaches and the purpose thereof is fully served at the time the attorney generates the written work product in representation of his client. In contrast, the "conditional" aspect of the privilege expressly provides for its application depending upon circumstances and considerations developing after generation of the product.

Thus, under the privilege the attorney for the trustee was encouraged to investigate and analyze fully his client's alternatives, even though some of these alternatives be arguably adverse to the beneficiaries, knowing that the process of full research and candid analysis is absolutely protected against compelled disclosure for use against his client. Unless the beneficiaries are also clients of the attorney in the sense contemplated by the section 2016, subdivision (b) privilege, the principal purpose of the privilege is here served only by upholding its absolute character.

[1d] There are strong ethical public policy considerations for concluding that the client has an absolute right of access to all work product generated by his attorney in representing the client's interests. In the absence, however, of any statutory exception parallel to that created by Evidence Code section 958 relative to the attorney-client privilege, we are compelled by the absolute language of section 2016, subdivision (b), and the express statement of purpose in subdivision (h), to conclude that the attorney is the intended exclusive holder of the work product privilege and that it may be asserted even against his client in the context of litigation where adversaries of the client seek discovery for use against the client.

We reemphasize the narrowness of this holding and repeat that we do not consider the far stronger public policy considerations involved in discovery where the client seeks his former attorney's work product to prepare his own case against that attorney.

[5] A court must construe a statute reasonably, endeavoring to ascertain the legislative intent. If the construction does not result in patently absurd results, we may not construe a statute contrary to its plain language and ostensible intent merely because we disagree with the wisdom thereof. (In re Estate of Carter (1935) 9 Cal.App.2d 714, 718 [50 P.2d 1057].)

If the Legislature did not intend the result reached here, it is up to the Legislature to appropriately amend the statute to provide an exception to its absolute language. [172 Cal.App.3d 280]

Ed. Note: Work product of an attorney. The Opinion refers to Code of Civil Procedure Section "2016"
The work product doctrine actually appears in Code of Civil Procedure Section 2018.

Lasky, Haas, Cohler & Munter v. Superior Court (Getty) (1985) 172 Cal.App.3d 264 , 218 Cal.Rptr. 205
Lasky, Haas, Cohler & Munter v. Superior Court (Getty) (1985) 172 Cal.App.3d 264 , 218 Cal.Rptr. 205

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