Lawzilla Update: We believe there was an amended order and the tentative order listed below was not the court’s final order.

Case Number: BC640350 Hearing Date: June 01, 2018 Dept: 4

MOVING PARTY: Plaintiff Kouroush Sartippour

RESPONDING PARTY: Defendant Douglas Adam Greer

The court considered the moving, opposition, and reply papers.

BACKGROUND

On November 10, 2016, plaintiff Kouroush Sartippour filed a complaint against Douglas Adam Greer for motor vehicle negligence based on an incident that occurred on December 12, 2014.

DISCUSSION

Plaintiff requests that the court issue the following orders:

Disqualify defendant’s attorneys of record, The Law Offices of McDowell Shaw Garcia & Mizell;

Defendant’s attorneys may not disseminate any of plaintiff’s attorney-client communications, including plaintiff’s retainer agreement, to anyone including new counsel;

Mike Kowalski shall provide an under oath accounting of all of plaintiff’s attorney-client communications in their possession within five days, including the description of the document, when it was obtained, what form, and how many copies are in their possession;

The claims adjuster assigned to this file at State Farm shall provide the same as above;

Mike Kowalski shall provide an under oath accounting of any individual or entity their office is aware of that has plaintiff’s attorney-client communications within seven days;

The claims adjuster shall do the same as above;

The Law Offices and State Farm shall destroy or delete all electronic attorney-client communications within ten days;

The Law Offices and State Farm shall return all physical attorney-client communications to plaintiff’s counsel within ten days.

Mike Kowalsi and the claims adjuster at State Farm shall provide an under oath declaration that The Law Offices and State Farm have destroyed and/or returned all of plaintiff’s attorney-client communications, including plaintiff’s retainer agreement, and no longer have any in their possession and have complied fully with the order within ten days; and

Peter Burkhard, Nancy Michalski, and Nick Shamie are ordered to cease any work on this matter. Provide an under oath accounting of all of plaintiff’s attorney-client communications in their possession within five days. Destroy or delete all electronic attorney-client communications within ten days. Return all physical copies or originals of attorney-client communications within ten days. Provide an under oath declaration that the expert has destroyed and/or returned all of plaintiff’s attorney-client communications, including plaintiff’s retainer agreement, and no longer has any in their possession and have complied fully with this order within ten days.

Pursuant to CCP §128(a)(5), one of the court’s powers is to control the conduct of its ministerial officers and of all other persons in any manner connected with a judicial proceeding before it in furtherance of justice. That power includes disqualifying an attorney. “The issue of disqualification ‘ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern, though, must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar. The recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process.’” Metro-Goldwyn Mayer v. Tracinda Corp. (1995) 36 Cal. App. 4th 1832, 1838; see also Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal. App. 4th 698, 705.

Evidence Code §952 states, “As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”

“A lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged [must (1)] refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and [(2)] immediately notify the sender that he or she possesses material that appears to be privileged.” Clark v. Superior Court (2011) 196 Cal. App. 4th 37, 48, quoting State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644, 656. Accord, Rico v. Mitsubishi Motors Corp. (2007) 42 Cal. 4th 807, 818 [extending requirement to attorney work product].

Rico also addressed the question of remedy when the attorney, having obtained privileged documents, did not comply with those obligations. Rico echoed State Fund’s caution that “’[m]ere exposure’ to an adversary’s confidences is insufficient, standing alone, to warrant an attorney’s disqualification” because “such a draconian rule . . . [could] nullify a party’s right to representation by chosen counsel any time inadvertence or devious design put an adversary’s confidences in an attorney’s mailbox.” Rico, at 819. Rico also stated, however, that “in an appropriate case, disqualification might be justified if an attorney inadvertently receives confidential materials and fails to conduct himself or herself in the manner specified above, assuming other factors compel disqualification.” Id.

Disqualification is warranted if instead of complying with the above obligations: (1) the attorney receives from his or her client documents that appear to be protected by the attorney client/work product privilege; (2) excessively reviews the documents; (3) does not immediately notify opposing counsel that they received privileged documents (or return the documents), (4) there is a genuine likelihood that the attorney’s conduct could affect the outcome of the litigation, and (5) the paramount concern of protecting the public trust in the administration of justice and integrity of the bar outweigh any infringement of the party’s right to the counsel of his or her choice. Clark, at 49-51.

Plaintiff contends that unbeknownst to plaintiff’s counsel until the eve of trial, Mike Kowalski, from the Law Offices of McDowell Shaw Garcia & Mizell, had a copy of plaintiff’s signed retainer agreement, which was inadvertently produced in response to a subpoena on Damon Soraya, plaintiff’s chiropractor. As part of defendant’s Trial Exhibit 125, defense counsel included the entirety of plaintiff’s retainer agreement, including plaintiff’s social security number. Pages 2 and 3 of the retainer agreement states, “Privileged & Confidential Attorney-Client Communication.” Plaintiff asserts that defense counsel did not follow the State Fund rules to notify plaintiff’s counsel. Instead defense counsel excessively reviewed the document, did not immediately return the document, and affirmatively employed the document to pursue their defense by adding the unredacted copy of the retainer agreement to defendant’s exhibit list and disseminating the retainer agreement to three of his expert witnesses.

Plaintiff argues that defense counsel could not unilaterally determine the privilege was waived and the privilege was not waived. Further, plaintiff did not consent to disclosure and he was never made aware that the retainer agreement was going to be inadvertently disclosed to defense counsel. See Evidence Code §912(a).

In opposition, defendant argues that plaintiff has failed to show that Exh. 125 was a confidential communication under Evidence Code §952. Rather, it was an unprivileged communication between an attorney and a doctor. Defendant contends that the communication was not protected by the attorney-client privilege because Damon Soraya, D.C. was a treating doctor and he did not examine plaintiff for the “sole purpose” of aiding plaintiff’s attorneys “in the preparation of the lawsuit.” City and County of San Francisco v. Superior Court (1951) 37 Cal. 2d 227, 230-38. Defendant argues that defense counsel properly obtained the communication when it received the subpoenaed records of Dr. Soraya. Thus, defendant asserts, when attorneys are blameless in the acquisition of information and the information is not privileged, attorneys are “free to use it.” Rico, supra, at 815-16. Defendant contends that Dr. Soraya’s records, including his communication with West Coast Trial Lawyers, are relevant regarding plaintiff’s motivation for treatment, in addition to the bias and credibility of Dr. Soraya.

Defendant further argues that it had no duty to notify plaintiff’s counsel because the documents were not “obviously privileged” or “inadvertently” disclosed to defense counsel. Further, the experts’ declarations state that Exh. 125 played no role in their opinions.

The court finds that the retainer agreement is a confidential communication. “A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 and of Section 952 of the Evidence Code.” Bus. and Prof. Code §6149. Further, it was labeled clearly as such, stating “Privileged & Confidential Attorney-Client Communication Do Not Disclose to Third Parties.” The court finds that there has been no waiver because there is no evidence of plaintiff’s intention to waive the privilege.

The court also finds that disqualification is warranted because defense counsel did not comply with the State Fund requirements. Rather, defense counsel received a document that by statute is confidential, and it stated that it was a privileged confidential attorney-client communication. Defense counsel excessively reviewed the document and failed to immediately notify plaintiff’s counsel that they received the privileged document or return the document. Further, there is a genuine likelihood that defense counsel’s conduct could affect the outcome of the litigation because defendant intends to use it at trial and added it to his exhibit list. Further, the paramount concern of protecting the public trust in the administration of justice and integrity of the bar outweigh any infringement of the party’s right to the counsel of his choice.

The motion is therefore GRANTED in part.

The court ORDERS the following:

Defendant’s attorneys of record, The Law Offices of McDowell Shaw Garcia & Mizell are disqualified;

Defendant’s attorneys shall not disseminate any of plaintiff’s attorney-client communications, including plaintiff’s retainer agreement, to anyone including new counsel;

The Law Offices and State Farm shall destroy or delete all electronic attorney-client communications within ten days;

The Law Offices and State Farm shall return all physical attorney-client communications to plaintiff’s counsel within ten days.

Mike Kowalsi and the claims adjuster at State Farm shall provide an under oath declaration that The Law Offices and State Farm have destroyed and/or returned all of plaintiff’s attorney-client communications, including plaintiff’s retainer agreement, and no longer have any in their possession and have complied fully with the order within ten days.

The court DENIES the motion as to disqualifying defendant’s experts. Disqualification is not warranted and the experts are not subject to the requirements under State Fund. They are ordered, however to return their copies of the retainer agreement to plaintiff within ten days.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 1, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court