NEEB v. LAW OFFICES OF THOMAS KEEFE INC

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Court of Appeal, Fourth District, Division 3, California.

John NEEB, et al., Petitioners, v. SUPERIOR COURT of California, County of Orange, Respondent; LAW OFFICES OF THOMAS J. O'KEEFE, INC. et al., Real Parties in Interest.

No. G007646.

Decided: October 05, 1989

Low, Ball & Lynch, Thomas J. LoSavio and Kelley R. Carroll, San Francisco, for petitioners. No appearance on behalf of respondent. Bonne, Jones, Bridges, Mueller, O'Keefe & Hunt and David J. O'Keefe, Los Angeles, Jeffrey C. Moffat, La Crescenta, and J. Wayne Allen, Los Angeles, for real parties in interest.

OPINION

Petitioners claim they are entitled to discover the work product of their former attorneys to facilitate the prosecution of their legal malpractice action against them.   We conclude counsel was privileged to withhold the documents and that the trial court's determination they did not waive the privilege is supported by the facts.

Petitioners John and Drew Neeb retained real parties in interest, attorneys Thomas J. O'Keefe and John Curtain, to probate their mother's estate and filed the underlying legal malpractice action against them as a consequence of that representation.   The core of their allegations is that real parties' failure to timely prepare and file state and federal tax returns caused the estate to incur a $75,000 interest obligation on a like amount of back taxes owed.   The Neebs served their former attorneys with a request to identify and produce all documents the attorneys prepared in connection with their work in the case.1  The trial court's minute order of September 30, 1988, directed O'Keefe to further identify the documents but denied the Neebs' request they be produced.2

The Neebs then petitioned this court for relief.   They admitted there is no statutory or decisional law supporting their position on the merits.   However, they claimed they were entitled to production of O'Keefe's work product because an attorney may not “limit his liability to his client for his personal malpractice.”  (Cal. Rules of Professional Conduct, former rule 6–102.)   They also relied upon law journal articles, bar association opinions and statements in a few decisions to the effect an attorney's work product is the client's property and should be made available to the client upon request.   In short, they argued the work product doctrine was designed to protect the client's interests and not those of retained counsel.

This court invited O'Keefe and the trial court to respond to the petition but eventually denied relief without comment.   However, the California Supreme Court granted the Neebs' review petition and ordered this court to issue an alternative writ.   The writ has issued and counsel have argued the cause.   Nevertheless, the petition will again be denied for reasons suggested in O'Keefe's original opposition.

 Code of Civil Procedure section 2016 3 was repealed in 1987 and replaced with section 2018 which was “intended to be a restatement of existing law relating to protection of work product [and was] not intended to expand or reduce the extent to which work product is discoverable under existing law in any action.”  (Code Civ.Proc., § 2018, subd. (d).)  Section 2018, subdivision (b), provides as follows:  “Subject to subdivision (c), the work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.”   Subdivision (c) states:  “Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.”   The decisions have affirmed the statutory rules—ordinary work product might be discoverable under special circumstances but an attorney's opinion work product is absolutely privileged.  (See Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 815, 192 Cal.Rptr. 104;  Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 500, 165 Cal.Rptr. 748.)

The absolute nature of the privilege not to disclose opinion work product to litigants is further highlighted by the 1988 addition of subdivision (e) to section 2018.   The new provision authorizes the State Bar to discover the work product of an attorney against whom disciplinary charges are pending when it is relevant to the lawyer's breach of a duty to his or her client.   However, the discovery is still “subject to applicable client approval and to a protective order, where requested and for good cause, to ensure the confidentiality of work product except for its use by the State Bar in disciplinary investigations and its consideration under seal in State Bar Court proceedings.”   Had the Legislature considered it appropriate to do so, it could have changed existing law and authorized client discovery of attorney work product.   Although the Neebs claim the requirement of client approval is a tacit acknowledgment of a client's right to possession of his or her attorney's documents, it is far more likely the Legislature was concerned solely with protecting the client's privacy interests during the course of a confidential State Bar investigation of counsel's activities.

The Neebs argue allowing discovery would not defeat any legitimate state policy.   However, even if this court could rewrite California law, the Legislature has declared “[i]t is the policy of the state to:  (1) preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases;  and (2) to prevent attorneys from taking undue advantage of their adversary's industry and efforts.”  (Code Civ.Proc., § 2018, subd. (a).)  Allowing the discovery of absolute work product under these circumstances (or any other) would, absent waiver, defeat this policy.   Nor is this court the first to reach this conclusion:  “If filing a malicious prosecution action (or, by the same logic, a malpractice action) could automatically open an attorney's files to a prior action, then an attorney, anticipating such a future suit, would hesitate to commit his or her doubts about a case to paper.”  (Popelka, Allard, McCowan & Jones v. Superior Court, supra, 107 Cal.App.3d at p. 501, 165 Cal.Rptr. 748.)   Indeed, a contention virtually identical to the one the Neeb's advance was summarily rejected six years ago in Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 191 Cal.Rptr. 871.  (See also Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 218 Cal.Rptr. 205;  Popelka, Allard, McCowan & Jones v. Superior Court, supra, 107 Cal.App.3d 496, 165 Cal.Rptr. 748.)   We perceive no reason to reach a different result.4

The Neebs alternatively rely on legal publications and a line of cases which loosely characterize an attorney's work product as the client's personal property.  (See, e.g., Kallen v. Delug (1984) 157 Cal.App.3d 940, 203 Cal.Rptr. 879;  Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal.App.3d 999, 124 Cal.Rptr. 668;  Weiss v. Marcus (1975) 51 Cal.App.3d 590, 124 Cal.Rptr. 297.)   However, those decisions merely determined an attorney may not retain a client's case file after being discharged by the client but must, on request, forward it to the client or to successor counsel.   The decisions do not involve a client's attempt to discover a former attorney's work product.  (See Lasky, Haas, Cohler & Munter v. Superior Court, supra, 172 Cal.App.3d 264, 275–277, 218 Cal.Rptr. 205.)   Indeed, the courts in those cases had no need to distinguish between that portion of counsel's endeavors which does belong to the client (e.g., the pleadings, motions and general correspondence) and counsel's absolute work product which, though it might repose in the client's file during the course of the attorney-client relationship, nevertheless remains counsel's personal property after that relationship has ended.

 The Neebs argue O'Keefe waived any privilege he might have had.   They base their contention on a letter O'Keefe sent to the inheritance tax referee.   That letter contains a factual summary of the events leading to the filing of the state inheritance tax return and a brief explanation of two deductions the administrator had taken.   However, the trial court determined that limited disclosure was not significant and did not amount to a wholesale waiver of the privilege.  (See Evid.Code, § 912, subd. (d);  Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052, 233 Cal.Rptr. 825;  Maas v. Municipal Court (1985) 175 Cal.App.3d 601, 606, 221 Cal.Rptr. 245;  Owens v. Palos Verdes Monaco (1983) 142 Cal.App.3d 855, 869–871, 191 Cal.Rptr. 381.)   Its decision is supported by the facts of this case.

Finally, the Neebs have not shown the trial court's order denying production was on the merits.   Indeed, the trial court might have considered the Neeb's general production request premature.   If that is the case, the Neebs can renew their discovery efforts on the basis of O'Keefe's further discovery response (identification of documents) when these proceedings are concluded.

The petition is denied and the alternative writ is discharged.   Real parties shall recover their costs.

My colleagues “conclude counsel was privileged to withhold the documents․”  (Maj. opn., p. 887.)   I am not sure I agree but I concur in the result;  the petition is premature for the reasons stated in the majority opinion.

FOOTNOTES

1.   The request included documents which were not covered by the work product privilege.   Counsel apparently supplied a number of these and other nonprivileged or conditionally privileged documents.   The present dispute appears to be centered solely on counsel's refusal to produce documents arguably protected by the absolute work product privilege conferred by Code of Civil Procedure section 2018, subdivision (c).  Consequently, we need not determine whether the trial court erred by failing to conduct an in camera hearing to review the individual documents, an obligation it undoubtedly would have had if the parties had disputed the contents of those documents and the Neebs had sought only conditionally protected items.  (See, e.g., BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1261, 245 Cal.Rptr. 682.)

2.   The Neebs apparently did not receive a copy of that order;  they believed the trial court passed only upon the “further identification” portion of their motion and reserved its ruling on their request for production until O'Keefe had further identified the documents.   They caused an order to be filed on October 25, 1988, which reflected their understanding.   O'Keefe complied with the order.   However, when the Neebs failed to receive any further documents from O'Keefe, they requested the trial court clarify its order.   On November 28, 1988, they received from the trial court a copy of its September 30, 1988 minute order which stated their request to produce was denied.   Although the Neebs impliedly suggest that denial was on the merits, this court assumed the contrary was true when it first denied this petition.

3.   Subsequent statutory references are to the Code of Civil Procedure.

4.   Real parties could have asserted the absolute privilege and their own privacy interests even if they had voluntarily delivered the documents in confidence to the Neebs.  (See BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal.App.3d 1240, 1260, 245 Cal.Rptr. 682.)   Furthermore, the same rule which prohibits an attorney from limiting his or her malpractice liability also states it “shall not prevent a member of the State Bar from settling or defending a malpractice claim.”  (Cal. Rules of Professional Conduct, former rule 6–102.)

SCOVILLE, Presiding Justice.

WALLIN, J., concurs.