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Common Interest Doctrine Utilized as Basis for Disqualification of Law Firm
Insurance Law Update
Court of Appeal of the State of California – Second Appellate District
In Meza v. H. Muehlstein & Co., 176 Cal.App.4th 969 (Aug. 18, 2009), a California appellate court held that defense counsel communications constitute protected attorney work product if the communications pertain to the common interests of different defendants under the common interest doctrine.
In Meza, an attorney who had been a member of the joint defense group was hired by the plaintiff’s counsel after the case was dismissed but while it was on appeal. Prior to changing firms, this attorney participated in joint defense communications, and exchanged information and documents with defense counsel to advance defendants’ common interests. Upon learning of the attorney’s hiring by plaintiff’s counsel, the defendants moved to disqualify the plaintiff’s law firm on the grounds that the attorney was privy to information that was protected by the attorney work product privilege. The plaintiff argued that defense counsel had waived the attorney work product privilege because defense counsel represented defendants with adverse interests in the litigation.
The trial court disagreed and granted the motion. The Court of Appeal affirmed and stated that the common interest doctrine protects defense counsel’s communications when: (1) the disclosure relates to a common interest of the attorneys' respective clients; (2) the disclosing attorney has a reasonable expectation that the other attorneys will preserve confidentiality; and (3) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted. An additional factor, though not dispositive of the issue on appeal, was that the expectation that defense counsel could share work product related to issues of common interest without waiving the privilege was set forth in the case management order governing the case.
In arriving at its holding, the court noted that there was no evidence that the attorney disclosed any work product to his new employer. Nonetheless, the court found that the mere appearance of impropriety was sufficient to impute knowledge to the entire firm, thereby resulting in its disqualification.
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