Nelson v. Tucker Ellis, DCA1/3
Attorney Nelson litigates asbestos cases for the defense, formerly for the law firm of Tucker Ellis LLP. While working for Tucker Ellis, Nelson exchanged emails with scientists at Gradient Corporation. The subject of the email concerned research articles on whether things other than asbestos (like tobacco) cause mesothelioma. Ultimately, Tucker Ellis may have retained Gradient, and Gradient apparently published an article on this subject. After leaving Tucker Ellis, a law firm prosecuting an asbestos case back east subpoenaed Tucker Ellis. The scope of the subpoena included whether Tucker Ellis paid Gradient for research articles and also sought emails between Nelson and Gradient. For reasons that are not clear (and are hard to fathom) Tucker Ellis produced the emails. Those emails didn’t look good for Nelson and, according to some, may have had the flavor of a defense firm trying to procure (to put it nicely) research to help defend asbestos cases. Once produced, the emails were published on the internet together with harsh commentary about the appearance of trying to “rent a white coat.” Nelson claims he was fired from his new firm because of those emails and that his reputation has been damaged so he can’t work in this area anymore. He sued Tucker Ellis claiming that it violated the work-product privilege by disclosing the emails. In granting summary adjudication on the issue of duty, the trial court agreed with Evans’s claim that he controlled the work product privilege. Tucker filed a writ. Held: Reversed.
California’s civil work product privilege is codified in section 2018.030. Subdivision (a) provides absolute protection to any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” Such a writing “is not discoverable under any circumstances.” Thus, the attorney work product privilege recognizes what is termed an ‘absolute’ privilege as to writings containing the attorney’s impressions, opinions, legal research and theories and recognizes a ‘qualified’ privilege as to all written materials and oral information not reflecting the attorney’s legal thoughts.
The statute does not explicitly say that the individual employee attorney, versus the employer law firm, controls the privilege.
But the work product privilege is meant also to protect the attorney in giving his/her opinions and protect that person from ridicule. In Hickman v. Taylor (1947) 329 U.S. 495, the U.S. Supreme Court said the following: “In performing his various duties, … it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” The California Supreme Court has cited that language approvingly. Coito v. Superior Court (2012) 54 Cal.4th 480, 490
In finding that the law firm controlled the privilege and not the attorney, the court pointed to the case of People ex rel. Lockyer v. Superior Court in support . But that was a criminal case where the attorney prosecutor himself was being investigated for criminal conduct and his documents had been seized pursuant to a warrant. (Presumably issues related to the crime/fraud exception applied.)
Here, the court rested its conclusion in part on its belief that its holding would result in a more workable rule – it gave the example of cases were a memorandum was written by more than one attorney and noted it would be harder to secure permission from multiple attorneys to disclose the work product. However, the rule is a matter of strong public policy and should not be diluted, let alone for administrative convenience. Moreover, nothing in the statute suggests that a law firm can override the privilege of the attorney to his/her work product.
This is not a good case for the many thousands of associates who are writing memos for their clients while working for law firms. As the U.S. Supreme Court said: It is the attorney who must “sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” We can’t weaken the privilege for all attorneys just because of what some attorneys do. Protecting the individual attorney is also right and fair: The attorney bears all the professional and ethical duties of an attorney representing the client. How can that attorney fulfill those duties if he/she knows that the “firm” might disclose this information and embarrass the attorney at some later point?!
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