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Attorney-Client Privilege

The following summaries are of recent published decisions of the California appellate courts, the Ninth Circuit, and the United States Supreme Court. The summaries are presented without regard to whether Severson & Werson represented a party in the case.

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Byers v. Superior Court (2024) 101 Cal.App.5th 1003

A plaintiff insured waives the attorney-client privilege as to fee agreements, time sheets and the like by suing the insurer for bad faith and claiming Brandt fees as damages.   A trial court may, but is not required to, bifurcate trial, leaving Brandt fees for a separate phase after the jury has determined liability for bad faith and allowing discovery of… Read More

Sundholm v. Hollywood Foreign Press Assn. (2024) 99 Cal. App. 5th 1330

An attorney for plaintiff was found to have reviewed two of defendant's arguably attorney-client privileged documents without stopping and notifying the defendant when he realized the documents might be privileged.  However, the trial court abused its discretion in disqualifying the plaintiff's law firm as a result.  The trial court failed to say how the two documents could be used to… Read More

Ross v. Seyfarth Shaw LLP (2023) 96 Cal.App.5th 722

Seyfarth was hired to investigate a professor's claim that she was discriminated against by Cal. State University Fullerton.  It performed the investigation and submitted a report to the university administration concluding there was no merit to the professor's claims. After unsuccessfully suing a host of other defendants, the professor sued Seyfarth, claiming the report and investigation were biased, etc.  Seyfarth… Read More

In re Grand Jury, 23 F.4th 1088 (U.S. 9th Cir. 2022)

In the 9th Circuit, courts apply the "primary purpose" test to determine whether an attorney-client communication for the dual purpose of tax or business advice and legal advice is attorney-client privileged.  This decision affirms the district court's use of that test rather than the "because of" test used for work product protection (from the totality of the circumstances was the… Read More

Getz v. Superior Court, No. C091337, 2021 Cal. App. LEXIS 1035 (Ct. App. Nov. 17, 2021)

Plaintiff's record request under the California Public Records Act (Gov. Code 6250 et seq.) should have been granted.  It sought all emails between county employees and four specified internet domains over a six year period regardless of subject matter.  The County was able to sort its email records and list 42,000 responsive emails.  The County claimed, however, it would be… Read More

In re Grand Jury, Nos. 21-55085, 21-55145, 2021 U.S. App. LEXIS 27420 (9th Cir. Sep. 13, 2021)

When a lawyer's advice is sought for both business purposes (such as tax compliance) and legal advice (advice on tax law), whether the communications are attorney-client privileged or not is tested by the "primary purpose" test--was the primary purpose of the communication legal or business advice?  (The court expressly declines to decide whether legal advice being "a" rather than "the"… Read More

Carroll v Commission on Teacher Credentialing (2020)

Once the attorney-client privilege has been established, the trial judge or counsel for any party may not comment on the fact that a party or witness has exercised the privilege.  (Evid. Code 913(a).)  Moreover, the trier of fact may not draw any inference from a witness’s invocation of a privilege.  The court must so instruct the jury upon request.  (Ibid.)… Read More