Attorney Who "Excessively Reviewed" Privileged Documents Misappropriated By His Client Was Properly Disqualified

[author: Anthony Oncidi]

Clark v. Superior Court, 196 Cal. App. 4th 37 (2011)

While he worked as VeriSign’s chief administrative officer, Grant Clark signed VeriSign’s nondisclosure agreement, which included a provision that he would not remove VeriSign’s confidential or privileged information and that he would return any such documents in his possession upon termination of his employment. Clark was terminated effective December 31, 2008, and in January 2009 he filed a lawsuit against VeriSign through his attorneys, Higgs, Fletcher & Mack LLP. The trial court disqualified the Higgs firm from continuing to represent Clark after Clark conceded in his deposition that he used privileged VeriSign documents as the basis for his securities fraud and breach of contract claims. The Court of Appeal denied Clark’s petition for a writ of mandate after determining that Higgs received and “excessively reviewed” privileged documents from Clark. See also Moody v. Staar Surgical Co., 195 Cal. App. 4th 1043 (2011) (employer’s attorney was properly sanctioned $1,500 for asking a question of a witness at trial after being instructed by the judge not to inquire into a particular area).