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.

About Carole J. Buckner

Carole J. Buckner is a Partner and General Counsel with Procopio in San Diego, California. She is an AV Peer Review Rated sole practitioner admitted to the California State Bar in 1984. She holds a BA from the University of California at Berkeley (1980) and a JD from the University of California, Hastings College of the Law in San Francisco (1984). She is available for consulting and legal advice in the field of legal ethics and issues involving professional responsibility, and the law of lawyering.