Court of Appeal Affirms Attorney-Client and Work Product Privileges; Strong Ruling Protects Discussions Between Co-Counsel and Affirms That An Attorney’s Thoughts & Impressions of a Client’s Case Are Absolutely Privileged

In Fireman’s Fund Insurance Company v. Superior Court, the California Court of Appeal for the Second Appellate District issued a strong opinion affirming the attorney-client and work-product privileges.

In brief, the court ruled that the attorney-client privilege does not merely cover communications from an attorney directly to the client, but also conversations between attorneys who may be representing the client.

The underlying dispute arose in an insurance case when a policyholder contended he had the right to depose a former Fireman’s Fund attorney about discussions the lawyer had with another attorney in the firm that was representing the insurance company. The court said there could be no inquiry into these conversations and noted that “the fundamental purpose of the attorney-client privilege is the preservation of the confidential relationship between attorney and client, and the primary harm in the discovery of privileged material is the disruption of that relationship.”

The court further observed that the state’s Evidence Code “emphasizes that the relationship between attorney and client exists between the client and all attorneys employed by the retained law corporation” and that “it is an everyday reality that attorneys, working together and practicing law in a professional association, share each other’s, and their clients’, confidential information.”    The court specifically pointed out that attorney client privilege covers both documents and verbal conversations.

The work product issue is a bit different.  There, the court noted that an attorney’s thoughts, impressions, strategies are absolutely privileged. They cannot be discovered under any circumstances.  And while certain writings containing such work product might, in certain circumstances be discoverable in a given case, federal and state case law, bolstered by the Evidence Code, “are in agreement that unwritten opinion work product is absolutely privileged . . . both lines of cases are of assistance in interpreting the California privilege, and both support the conclusion that unwritten opinion work product is absolutely privileged.”

A copy of this ruling is attached for your convenience.

We regularly advise clients on important legal questions such as those involved in the Fireman’s Fund case. Feel free to contact us if you need assistance in this area.