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CA court says attorney-attorney messages can be privileged

We normally think of attorney-client privilege as a pact between an attorney, and, well, his or her client. A recent ruling from a California Court of Appeals seems to shut out the client from this equation and create an attorney-attorney privilege, even when discussing the client’s case, at least in some situations.

The ruling goes against the plaintiff in a legal malpractice claim against his former law firm. The man hired the defendants to sue the British newspaper the Daily Mail for invasion of privacy in reaction to an article the paper published about his alleged criminal activities.

According to evidence from trial, the relationship between the law firm and the client deteriorated quickly. The plaintiff emailed the attorney assigned to his case, accusing her of breaching the terms of his retaining the firm. He specifically accused the attorney of misleading him about how much litigation would cost, and of providing him with a “swinging pendulum of advice.”

The plaintiff later fired the attorney and hired another firm to handle his case. Later on, he sued the original firm for malpractice and requested that the firm hand over documents related to its former representation of him.

The firm withheld nearly 400 documents, claiming they were protected by attorney-client privilege -- even though the plaintiff himself was the client. The trial judge sided with the plaintiff, but on appeal the court overturned that ruling.

It appears that the appellate court found that communications between the plaintiff’s attorney and other lawyers from her firm are privileged, as long as they involve counseling her in connection with a potential legal malpractice suit by the plaintiff.

Decisions like this one show how tricky a legal malpractice suit can be, though victims can still receive justice.

Source: Metropolitan News-Enterprise, “Firm Sued by Client May Have Attorney-Client Privilege--C.A.,” Kenneth Ofgang, Nov. 26, 2014

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