Court of Appeal:
Law Firm Improperly Used Privileged Memo, But Disqualification
Was Not Warranted
By a MetNews
1100 Wilshire Boulevard
A law firm,
representing a defendant in a civil action, committed an ethical breach in
attaching to a trial brief a privileged document, lawfully acquired by its
client, in which legal advice was rendered to the plaintiff, the Court of Appeal
for this district has held, but that transgression did not compel its
of Winston & Strawn, an international law firm with a local office at 333
S. Grand Ave., was sought by 1100 Wilshire Property Owners Association (POA),
plaintiff in an action against 1100 Wilshire Commercial, LLC (WC).
document in question was a memo prepared by Susan M. Spitzer of the law firm of
Bovitz & Spitzer summarizing advice from three law firms to POA concerning
the 37-story residential developments covenants, conditions, and restrictions
and voting rights. It was distributed to all board members of the POA.
members included John Mackey, who later became manager of WC, which owns lots
in the development. Mackey supplied the memo to his lawyers at Winston &
Los Angeles Superior Court Judge Louis M. Meisinger, acting as referee in the
case, struck the memo and references to it in the brief, but denied the POAs
motion to disqualify the defendants law firm.
an opinion for Div. Five, Acting Justice Kim Dunning, an Orange Superior Court
judge sitting on assignment, on Thursday affirmed in an opinion that was not
certified for publication.
pointed to the Court of Appeals 1999 decision in State Compensation
Insurance Fund v. WPS, Inc. There, the plaintiffs lawyers inadvertently
sent privileged documents to the defendants counsel.
Justice Charles Vogel of Div. Four (who is now back in law practice) wrote:
a lawyer who receives materials that obviously appear to be subject to an
attorney-client privilege or otherwise clearly appear to be confidential and
privileged and where it is reasonably apparent that the materials were
provided or made available through inadvertence, the lawyer receiving such
materials should refrain from examining the materials any more than is
essential to ascertain if the materials are privileged, and shall
immediately notify the sender that he or she possesses material that appears
to be privileged.
& Strawn obtained documents containing legal advice from attorneys retained
by its clients adversary. The law firms receipt of the documents triggered
its obligations pursuant to State Fund to notify the POA. That
obligation was not negated by the fact that Mackey legitimately received the
Spitzer memo in his capacity as a member of the Board before this litigation
went on to say:
could not take off his directors hat and provide a copy to WC for its use in
litigation against the POA. Winston & Strawn would have been denied access
to the Spitzer memo through formal discovery and could not surreptitiously
obtain it from a manager of its client who also happened to be a member of the
she said, Meisinger did not abuse his discretion in declining to disqualify the
law firm. Disclosure of a single memo did not result in irreversible
damage to the POA, Dunning observed.
referee struck those portions of WCs reply brief that referred to the POAs
attorney-client and work product privileged information and ordered Winston
& Strawn to destroy all copies of any POA privileged material, she
recited. This was a sufficient remedy.
case is 1100 Wilshire Property Owners Association v. Wilshire Commercial,
the POA were Lisa Perrochet and Eric S. Boorstin of Horvitz & Levy and
Jeffrey M. Cohon of Cohon & Pollak. Saul S. Rostamian and Diana Hughes
Leiden of Winston & Strawn acted for WC.
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