In a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege. If multiple clients retain or consult with an attorney on a matter of common interest and the joint clients later sue each other, the communications between either client and the attorney made in the course of that relationship are not privileged in the suit between the clients.
In general, however, one joint client cannot waive the attorney-client privilege for another joint client. But, what about the situation where 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? No.
The case is Anten v. Superior Court. The situation falls squarely within the literal terms of Evidence Code section 958. The plain language dictates that the attorney client privilege does not apply in such a case. Public policy considerations lead to the same result.
Under section 958 “[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.” Where one joint client seeks production of communications relevant to the issue of breach by the clients’ joint lawyer’s duties arising out of the lawyer-client relationship there is no privilege.
Mr. Daymude consults with clients and accepts cases involving the attorney-client relationship, including those where the attorney-client privilege is implicated. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.