Ethics update

By Sandra Boerio

Jasmine Networks Inc. v. Marvell Semiconductor Inc. (April 8, 2004) 117 Cal.App.4th 794, 12 Cal.Rptr.3d 123. 

In-house counsel for Marvell, along with two of its executives, called opposing counsel and, using a speakerphone, left a voice mail message. They did not correctly disconnect the speakerphone and continued to have a confidential communication, which was recorded by opposing counsel’s voice mail. The court held that this communication was not protected by the attorney/client privilege because the privilege holders, the Marvell executives, waived the privilege by disclosing the information themselves. This decision overturned the trial court’s granting of a preliminary injunction, in favor of Marvell, restraining the use or disclosure of the communication.

The crime fraud exception to Evidence Code §915 was also an issue in this case. The court said that a prima facie case of a crime or fraud has to be proven in order for the communication not to be considered privileged. A prima facie case of fraud is one in which the communication is reasonably related to the crime or fraud. The actual contents of the voice mail in this case were reasonably related to fraud, and Jasmine proved that there was a prima facie case to satisfy the crime/fraud exception.

Siebel v. Mittlesteadt (May 6, 2004) 118 Cal.App.4th 406, 12 Cal.Rptr.3d 906.

In this case, the defense used the attorney/client privilege as a defense against a malicious prosecution action. They claimed that they would not be able to properly defend themselves without revealing privileged information and relied on Solin v. O’Melveny & Meyers, (2001) 89 Cal.App.4th 451. In granting a summary judgment motion, the court never addressed the issue of attorney/client privilege in regard to Solin. The appellate court stated that the lower court was correct in not addressing the attorney/client issue. It would not be proper for a court to rule on such an issue when determined in the context of a summary judgment motion.

Fletcher v. Davis (June 10, 2004) 33 Cal.4th 61, 14 Cal.Rptr.3d 58.

The Supreme Court held that a charging lien, securing payment of attorney’s fees and costs against the client’s future recovery, is adverse to the client’s interests and needs to be in writing pursuant to Rule 3-300 of the California Rules of Professional Conduct. In a footnote, the court stipulated that this decision applies to a charging lien securing hourly fees, and did not apply to contingency fee situations. Here, the client orally agreed to a lien against any future recovery. The court, in reversing in part the Court of Appeal decision, held that since this agreement was not in writing, it is not enforceable.

San Francisco v. Cobra Solutions Inc. (June 10, 2004) 2004 WL 1278036, 2004 Cal.App. Lexis 882.

The entire city attorney’s office was vicariously disqualified from a matter because the city attorney was retained by the defendant while in private practice and worked on a matter substantially related to the action now being prosecuted by the city.

The First District Court of Appeal affirmed the disqualification of the city attorney’s office in holding that when the head of a public law office has a conflict of interest with previous private representation, vicarious disqualification of the entire office is required. They reasoned that it is impossible for the city attorney to “screen out all of his responsibilities for setting office policy and reviewing the performance of his attorney staff.”