Attorney-Client Privilege Applies to Invoices in Pending Matters

  The California Supreme Court in L.A. County Bd. Supervisors v. Super. Ct. (ACLU of SoCal) holds that the attorney-client privilege applies to everything in an attorney’s invoice, including the amount of aggregate fees, when a legal matter remains pending and active “even if the information happens to be transmitted in a document that is not itself categorically privileged.” Continue reading

Elder Abuse: Absolute Immunity for Mandated Reporters

  Welfare and Institutions Code section 15634 in the Elder Abuse and Dependent Adult Civil Protection Act provides mandated reporters absolute immunity from false arrest claims that stem from the duty to report suspected financial abuse of an elder, including the act of signing a citizen’s arrest form. The case is Santos v. Kisco Senior Living.

Judgment Debtors: The Qualified Tax Return Privilege

  There is no federal or state constitutional right to maintain the privacy of tax returns. However, California courts have interpreted state taxation statutes as creating a statutory privilege against the disclosure of tax returns. The purpose is to encourage voluntary filing of tax reporting of income and thus to facilitate tax collection.

  The privilege is not absolute. It will not be upheld in three situations: when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved. This last exception is narrow and applies only “when warranted by a legislatively declared public policy.” Continue reading

Attorney-Client Privilege: Joint Client Exception

  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. Continue reading

Bright Line Extortion Exception to Anti-SLAPP Statute

iStock_000004954568XSmall  The Second Appellate District adopts a bright line exception to the anti-SLAPP statute pursuant to the Supreme Court opinion in Flatley v. Muro: The statute does not apply to any litigation communications which constitute criminal extortion as a matter of law. Continue reading

Litigation Privilege Exception: Statement Concerning Third Party in Dissolution Proceedings

  Civil Code sections 47-48 codify the litigation privilege in California. It provides attorneys, parties, witnesses, and other participants immunity from liability for making alleged defamatory statements so long as they relate to legislative, judicial, or other official proceedings. The purpose of the privilege is to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.

  The privilege is not absolute, however, and contains several exceptions. One such exception concerns statements made in any pleading or declaration filed in a marital dissolution or separation proceeding which concerns a person against whom no affirmative relief is sought, i.e., a third party. Such statements are not privileged unless the pleading or declaration is: 1) verified; 2) made without malice; 3) made by one having reasonable and probable cause to belief its truth; and 4) material and relevant to the issues presented in the action.

  The recently published opinion in Holland v. Jones affirms that the exception to the litigation privilege provided in Civil Code section 47(b)(1) to statements made in a marital dissolution proceeding applies only to statements made against a third party, and not under the circumstances where the statements are made against a party to the proceedings and against whom affirmative relief is sought.

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CA Supremes Clarify Work Product Protection of Witness Statements

   Witness statements obtained through an attorney-directed interview are entitled to at least qualified work product protection. Coito v. Superior Court. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. If the party resisting discovery alleges that a witness statement, or portion thereof, is absolutely protected because it reflects an attorney’s impressions, conclusions, opinions, or legal research or theories, that party must make a preliminary or foundational showing in support of its claim. The trial court should then make an in camera inspection to determine whether absolute work product protection applies to some or all of the material. Continue reading