I will be speaking to the Orange County Bar Association presenting the latest Ethics Update 2017 on September 28, with my co-panelists Rob Sall, Kevin Mohr, and Bob Kehr. The program will cover the latest cases and ethics opinion summaries on legal fees, billing, attorney client privilege, conflicts of interest and the duty of confidentiality, as well as ethics rules, and the most recent updates on avoiding legal malpractice. Get three hours of ethics credit. Please contact me if there are specific issues you would like the panel to cover that would be helpful to your practice.
This story first appeared in the OC Lawyer magazine and the Orange County Bar Association website – April 2017
by Carole J. Buckner
The Disappearing Attorney-Client Privilege
As you record your billing entries to send to clients, you probably expect that your descriptions will be covered by the attorney-client privilege. You may not be thinking at all about what will happen to the invoices containing those time entries after the case is over. You may assume that information in invoices is protected by the attorney-client privilege even after the case is over. This used to be the case under the law providing that the attorney-client privilege continued even after litigation ended. But things changed with the decision of the California Supreme Court in Los Angeles Cty. Bd. of Supervisors v. Superior Court (ACLU of Southern California), 2 Cal. 5th 282 (2016). A majority of the court has determined that an attorney’s invoices to a client are protected by the attorney-client privilege so long as litigation is ongoing, but there is no categorical privilege covering attorney invoices to clients, so that “there may come a point when [the invoices] no longer communicate anything privileged.” Id. at 298.
The decision is controversial for several reasons. First, the court has changed the law pertaining to read the rest on OC Bar website
Are communications between general counsel or claims counsel for a law firm and the lawyers in the firm protected by the attorney client privilege where a former client seeks them in discovery in a malpractice action? The answer, according to a recent California case, depends on several factors including the roles of the attorneys as claims counsel and general counsel to the firm and whether the attorneys were billing the client in the case. Assuming that the general counsel and claims counsel for the firm held those positions prior to the communications, and that they were not billing the client, it is more likely a California court will find the communications privileged. However, the court pointed out that the lawyers will still have a duty to disclose to the client the fact that they have committed malpractice. In addition, the court indicated that a third counsel who was deputized by the general counsel and claims counsel, but who then actually worked on the client’s case, had not met the burden of demonstrating the application of the attorney client privilege. The case is Edwards Wildman Palmer v. Superior Court. Further discussion here.