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Palmers v. Superior Court (Shahrokh Mireskandari)

California Court of Appeals, Second District, Third Division

November 25, 2014

EDWARDS WILDMAN PALMER LLP et al., Petitioners,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent SHAHROKH MIRESKANDARI, Real Party in Interest. (###Party2###)

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

ORIGINAL PROCEEDINGS in mandate Super. Ct. No. BC517799 Terry A. Green, Judge.

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COUNSEL

McLeod, Moscarino, Witham & Flynn and John M. Moscarino for Petitioners.

No appearance for Respondent.

Parker Shumaker Mills, David B. Parker, Mark A. Graf and Jason J. Rudolph for Real Party in Interest.

OPINION

ALDRICH, J.

INTRODUCTION

The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We

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conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications. Adoption of the so-called “fiduciary” and “current client” exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege. In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962[1] do not apply to the circumstances presented here. Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner and defendant Edwards Wildman Palmer LLP (the Firm) is an international law firm with 16 offices and over 600 attorneys. Petitioner and defendant Dominique R. Shelton is a former partner in the Firm’s Los Angeles office. In March 2012 plaintiff and real party in interest Shahrokh Mireskandari retained the Firm to represent him in an invasion of privacy lawsuit against the Daily Mail, a newspaper based in the United Kingdom. Shelton was the Firm partner in charge of handling the case. On April 4, 2012, the Firm filed a complaint on Mireskandari’s behalf against the Daily Mail and other defendants in the United States District Court for the Central District of California. Approximately seven weeks later, the Firm filed a First Amended Complaint.

The relationship between Mireskandari and the Firm was short lived and, for the most part, contentious. In June 2012, Mireskandari sent Shelton two emails expressing dissatisfaction with the Firm’s billings and representation. In an email dated June 24, 2012, Mireskandari stated: “You are and have acted in complete breach of the terms of the retainer between me and your firm. [¶] Please take notice that I will hold your firm liable for any and all damages that I may incur from you[r] actions.” In a 10-page email dated June 25, 2012, Mireskandari complained, among other things, that Shelton’s estimate of the cost of the litigation had been vastly understated. He found it “impossible to understand how a budget can be so far off the mark and how any competent litigator can fail to see such a huge disparity in a... budget.” He questioned why Shelton had purportedly failed to discern that the Daily Mail was likely to file an “anti-SLAPP motion, ”[2] accused her of failing to timely advise him of this eventuality, and professed to be “deeply troubled by

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the swinging pendulum of advice that I have been given by you.” Mireskandari demanded that all communications between him and Shelton be in writing, “to avoid any misunderstandings.” He charged that the Firm’s demand he sign an additional document “before any further work [was] undertaken” was “wholly inappropriate and unethical.” Had it not been for the involvement of his own personal legal advisor, he “would have passed this matter straight to an alternat[e] attorney to deal with.” Nonetheless, Mireskandari stated he continued to rely on the Firm for legal advice: “I relied and continue [to] rely [upon] you and your firm[’s] expertise to provide me with reasonable, logical and informed advice about my matter.”

On June 25, 2012, the Daily Mail defendants filed anti-SLAPP motions in the Daily Mail case.

On August 9, 2013, Mireskandari, represented by the firm of Parker Shumaker Mills, LLP, filed the instant action for legal malpractice, breach of fiduciary duty, and breach of contract against the Firm and Shelton in Los Angeles County Superior Court.[3] The allegations in his amended complaint echoed those made in his June 2012 emails. Additionally, the amended complaint alleged that because the Firm had refused to perform additional work on the case, Mireskandari was forced to hire “on short notice” the law firm of Greenberg Glusker Fields Claman & Machtinger LLP (Greenberg Glusker) “to assist in preparing oppositions to the motions to dismiss” in the Daily Mail action.

On August 16, 2012, Greenberg Glusker substituted in as counsel for Mireskandari in the Daily Mail case. The Firm and Shelton retained outside counsel to defend them in Mireskandari’s state malpractice lawsuit.

During the period June 2012 to August 16, 2012, while the Firm was still representing Mireskandari in the Daily Mail lawsuit, Shelton consulted with Edwards Wildman Palmer attorneys, Jeffrey Swope and James A. Christman, concerning Mireskandari’s complaints about the Firm’s representation and the billing dispute.

In November 2013, Mireskandari’s attorneys in the malpractice action deposed Shelton. The notice of deposition demanded production of four categories of documents. At the deposition, Shelton invoked the attorney-client privilege and refused to answer nine questions that purportedly related

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to privileged communications with Swope. After the deposition, the Firm produced many of the requested documents[4] but invoked the attorney-client privilege in regard to “internal law firm communications between the deponent and Edwards Wildman lawyers acting in their capacity as counsel for the firm and/or documents prepared in anticipation of litigation with the plaintiff.” The Firm ...


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