Clark v. Superior Court: Disqualification of Attorney Warranted Due to Excessive Review of Inadvertently-Received Privileged Documents


In a published opinion, the California Court of Appeal (Fourth Appellate, Division One) denied a petition to vacate an order disqualifying plaintiff’s chosen law firm. The trial court had disqualified counsel for the receipt and excessive review of the opposing party’s privileged material. The case is Clark v. Superior Court (2011) 196 Cal.App.4th 37.

Counsel was found to have violated its obligations under Rico v. Mitsubishi Motors Corp (2007) 42 Cal.4th 807 and State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, which require a lawyer to refrain from examining materials any more than is essential to ascertain if the documents are privileged, and immediately notify the sender that he or she possesses material that appears to be privileged.

Plaintiff asserted that an in camera review of the documents was a prerequisite to determining whether the materials were in fact privileged. In doing so, plaintiff claimed that the determination of privilege turns on the “dominant purpose” of each communication. Contrary to plaintiff’s contention, the trial court held that the relevant inquiry is not the content of the communication but is instead the relationship of the communicators.

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