Ethics Opinon 2004-1

I. QUESTION
An attorney and the attorney’s former client have been named as defendants in a malicious prosecution action. The former client is asserting a defense based on advice of counsel and is requesting disclosure of attorney’s work-product, including discovery of writings reflecting the attorney's impressions, conclusions, opinions, or legal research or theories that the client anticipates will be helpful to its defense. Attorney seeks to assert the work-product protection (Cal. Code Civ. Proc. §2018; Fed. R. Civ. Proc, rule 26.; Rest. 3rd Law Governing Lawyers§§ 87-92) against the former client.
Is an attorney ethically compelled to waive the work-product protection if the attorney’s interests differ from the former client’s interests?

II. SUMMARY
Despite the “absolute” protection described by Cal. Code Civ. Proc. Section 2018(b) and the California case law providing that the attorney is the exclusive holder of the privilege, the attorney is subject to a fundamental duty of loyalty to the former client. Because the attorney stands in a fiduciary relationship with the client, the attorney has an ethical duty to put the client’s interests ahead of her or his own and must waive the work-product protection at the request of the client in these circumstances as to material relevant to the former client’s defense.

While California case law has held that the attorney is the “holder” of the work-product protection, the privilege exists to effectuate the end of the attorney’s representation, ultimately to protect the interests of the client. Even the “absolute” protection provided by Section 2018(b) exists within the boundaries of the attorney’s duty of loyalty to the client. For example, an attorney has a duty to return to the client “all items reasonably necessary to the representation,” including work product materials where the client needs the documents or information to continue his prosecution or defense after the attorney withdraws or is terminated (Cal. R. Prof. Conduct 3-700(D)(2).) Similarly, there is no work-product protection where the client has made a claim of legal malpractice or breach of fiduciary duty against the attorney (Cal. Code Civ. Proc. § 2018(f)(2).) That an attorney’s duty of loyalty supercedes an attorney’s “right” to claim the privilege is consistent with evolving national standards of attorney ethics reflected in Restatement 3rd of the Law Governing Lawyers, sections 87-92 and long standing Federal practice.
While the attorney is ethically required to waive the work-product protection as to material the attorney knows is relevant without question to the former client’s defense, this does not mean that the attorney must waive the work-product protection with respect to material that the attorney believes in good faith is not relevant to the former client’s defense. Good faith disputes over the relevance of such material can be resolved by in-camera inspection by the court in the course of discovery (cf. Cal. Evid. Code §915(b).)

III. AUTHORITIES CITED
Cases
Anderson v. Eaton (1930) 211 Cal. 113
BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240
Fellows v. Superior Court (1980) 108 Cal.App.3d 55
Flatt v. Superior Court (Daniel) (1994) 9 Cal.4th 275
Hickman v. Taylor (1947) 329 U.S. 495
Green v. Stewart (1930) 106 Cal.App. 518, 531
Jeffry v. Pounds (1977) 67 Cal.App.3d 6
Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264
Fellows v. Superior Court (1980) 108 Cal.App.3d 55
Hickman v. Taylor (1947) 329 U.S. 495
Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264
Lysick v. Walcom (1968) 258 Cal.App.2d 136, 147
Martin v. Valley National Bank of Arizona (SD NY 1991) 140 F.R.D. 291

Roberts v. Heim (N.D.Cal. 1988) 123 F.R.D. 614
Santa Clara County Counsel Attys. Associationn v. Woodside (1994) 7 Cal.4th 525 Spivey v. Zant (5th Cir. 1982) 683 F.2d 881
Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110
Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564
Yorn v. Superior Court (Hesemeyer) (1979) 90 Cal.App.3d 669
Opinions
State Bar Formal Op. No. 1992-127
San Diego County Bar Association Formal Op. No. 1997-1
Statutes
California Code of Civil Procedure section 2018
California Business & Professions Code section 6068(e)
California Evidence Code section 915(b)
Rules
Rule 26, Federal Rules of Civil Procedure, Title 18

Rules of Professional Conduct
Rule 3-700(D)(2), Rules of Professional Conduct of the State Bar of California
Rule 3-500, Rules of Professional Conduct of the State Bar of California
American Bar Association, Model Rule 1.7, comment (1)

Other Authorities
Restatement 3rd of the Law Governing Lawyers, sections 87-92

IV. ANALYSIS
The Duty of Loyalty

The hypothetical involves a conflict between the interest of the lawyer and the interest of the former client in the context of attorney work-product. The law of attorney work product is of limited guidance in resolving a conflict that touches on most fundamental quality of the attorney-client relationship: the absolute and complete fidelity owed by the attorney to his or her client ( Jeffry v. Pounds (1977) 67 Cal.App.3d 6, 10-11 Flatt v. Superior Court (Daniel) (1994) 9 Cal.4th 275, 289; Yorn v. Superior Court (Hesemeyer) (1979) 90 Cal.App.3d 669, 675; Rest. 3rd, Law Governing Lawyers §16, comment f ; ABA Model Rule 1.7, comment (1).)
The primary purpose of the duty of loyalty is to encourage public confidence in the integrity of the legal profession. The scope of the duty of loyalty goes beyond the requirements of the Rules of Professional Conduct: "It is an attorney's duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter's free and intelligent consent . . . By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client's interests." (Santa Clara County Counsel Attys. Ass'n v. Woodside (1994) 7 Cal.4th 525, 548 (emphasis added); Anderson v. Eaton (1930) 211 Cal. 113, 116; cf. Bus. & Prof. Code § 6068(e).)
The fiduciary duty of loyalty continues after termination of the attorney-client relationship such that a lawyer may not act in a manner that will injure the former client in matters involving the prior representation. For example, the lawyer cannot subsequently use information gained from the prior representation to the former client's disadvantage without the former client's informed consent. Yorn v. Sup.Ct. (Hesemeyer), supra, 90 Cal.App.3d at 675; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 571.)

The Duty to Communicate

During the attorney-client relationship, an attorney has a duty to communicate with the client. This duty is reflected in Cal. R. Prof. Conduct 3-500 and Ca. Bus. & Prof. Code Section 6068(m), both requiring an attorney to keep the client reasonably informed about "significant developments." This duty continues after termination of the attorney-client relationship, at least to the extent of the continuing duty of loyalty and Cal. R. Prof. Conduct 3-700(D)(1) requires the attorney to supply the client and any successor counsel with all information ". . . reasonably necessary to the client's representation . ." (Cal. R. Prof. Conduct of Prof. Conduct 3-700(D)(1); State Bar Formal Op. 1992-127; San Diego County Bar Association Formal Op. 1997-1, discussed further, infra.) The Discussion following Cal. R. Prof. Conduct 3-500 expressly excludes the work-product doctrine from the ambit of the rule, which is "not intended to create, augment, diminish, or eliminate any application of the work product rule." (Cal. R. Prof. Conduct 3-500, Discussion.) "The obligation of the member to provide work product to the client shall be governed by relevant statutory and decisional law." (Id.) The "relevant statutory" law governing disclosures to the client includes both Ca. Code Civ. Proc. section 2018 and Ca. Bus.& Prof. Code section 6068(m). The former generally protects work product from disclosure, but the latter requires disclosure to the client of all "significant developments." There is very little California decisional law defining "significant developments." In a conflict of interests context, an attorney must disclose "all facts and circumstances which. . . are necessary to enable [the] client to make free and intelligent decisions regarding the subject matter of the representation." (Lysick v. Walcom (1968) 258 Cal.App.2d 136, 147.) Though this duty is rooted in the common law, it would seem to apply with equal logic to the duty to communicate "significant developments" set forth in section 6068(m). If section 2018 is used to justify non-disclosure of material evidence by an attorney to the client, such application would conflict with the mandate in section 6068(m) that requires disclosure of all "significant developments" by that same attorney to that same client. Any information known to the lawyer that would be material to the advice-of-counsel defense would have been equally material to the client's ability to make free and intelligent decisions about pursuing the underlying case. Therefore, the statutory duty to communicate would require disclosure by the attorney of such material evidence to the client during the time the attorney-client relationship exists. Assuming such material information had not been disclosed during the representation, the lawyer's breach of this statutory duty should not enable him or her to thereafter avoid disclosure.

Notably, work-product protection is not available where the client has made an affirmative claim that the attorney breached a duty owed the client. (Cal. Code Civ. Proc. §2018(f).) Accordingly, if the client has sued for malpractice and/or filed a cross-complaint alleging a breach of duty by the attorney to the client, then section 2018 makes it clear there is no work-product protection.
It is not, however, clear that merely asserting the advice-of-counsel defense gives rise to "an action between an attorney and his or her client or former client." The defense is not necessarily inconsistent with the attorney's claim that probable cause did exist. See Green v. Stewart (1930) 106 Cal.App. 518, 531.) Advice-of-counsel can be regarded as an alternative means for the often less legally sophisticated client to establish probable cause. It can be asserted in the same case where the attorney-defendant is seeking to establish that probable cause did exist. On the other hand, the defense is closely akin to a legal malpractice claim. In both instances, the client may waive the attorney-client privilege by asserting the claim (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) In both instances, the client is asserting that he or she reasonably relied on the attorney for advice. In both instances, the advice given by and the information known to the attorney is usually material to the client's position.
Although section 2018(f) may not apply to all advice-of-counsel defense cases, its purpose appears to be to eliminate work-product protection in those cases where it is the former client, as opposed to a third party, who needs the information. That purpose is consistent with the attorney-to-client communication of significant developments mandated by section 6068(m). If the information is material enough to warrant resistance by the attorney to its disclosure in the malicious prosecution case, it was most likely significant enough to warrant disclosure to the client during the representation.


The Fundamental Purposes of Work-product protection

While California case law has held that the attorney is the “holder” of the attorney work-product protection (Lasky, Haas, Cohler & Munter v. Superior Court (Getty) 172 Cal.App.3d 264, 274; Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68 ) the privilege itself does not exist in a vacuum. It ultimately exists to effectuate the interests of the client in encouraging the client’s attorney to “ prepare” the case thoroughly, and to investigate “not only the favorable but the unfavorable aspects” of that matter by protecting the attorney’s efforts against usurpation by opposing counsel or parties (Code Civ. Proc. §2018(a).)
Despite the purported “absolute” work product privilege created by section 2018(c) for writings containing “an attorney's impressions, conclusions, opinions, or legal research or theories,” the attorney owes the client a duty to provide such writings on termination of employment where they are “reasonably necessary” for the client’s representation (Cal. R. Prof. Conduct 3-700(D)(1); State Bar Formal Op. 1992-127; San Diego County Bar Association Formal Op. 1997-1.)
State Bar Formal Op. 1992-127 addressed the application of rule 3-700(D)(1) in the criminal law context. The opinion found that “the attorney’s impressions, conclusions, opinions, legal research, and legal theories prepared in the client’s underlying case ordinarily are reasonably necessary to the client’s representation” citing Spivey v. Zant (5th Cir. 1982) 683 F.2d 881, which held that the work-product protection is designed to prevent a client’’s adversary from obtaining materials prepared by the attorney on behalf of the client and did not prohibit the client from gaining access to his own file. In Roberts v. Heim (N.D.Cal. 1988) 123 F.R.D. 614, the court found that the reasoning in Spivey applied under California law with regard to the work-product protection.
Although rule 3-700(D)(1) only discusses “papers and property,” State Bar Formal Op. 1992-127 goes farther in addressing the “absolute” work-product protection and finds that “the original attorney is obliged to assist her former client by providing him or her with all materials generated as a result of representation. Where the need arises for successor counsel to learn matters that have not been reduced to writing, the original attorney should provide this information to the client and successor counsel...”

Martin v. Valley National Bank of Arizona (SD NY 1991) 140 F.R.D. 291, involved a situation similar to the hypothetical here. In Martin, the U.S. Department of Labor commenced an action under the ERISA, alleging that Valley National Bank had violated its fiduciary obligations as trustee of an employee stock ownership plan (“ESOP”). The Department requested documents from attorneys for both the ESOP and the Bank. The ESOP’s attorneys objected based on the work-product protection, even though ESOP itself had instructed the attorneys to produce the documents to the Department. The Court rejected the attorney’s assertion of the privilege:
The case law invoked by the law firm stands for the unexceptionable proposition that the work product rule rests on a “complex (sic) of interrelated interests” of both client and counsel, “[ranging] from the clients' interests in obtaining good legal advice . . . to the interests of attorneys in their own intellectual product.”[Citation omitted] For this reason, a number of courts have held that the attorney may invoke the work product rule in his own right even if the client cannot assert it or has not directed counsel to assert it. [Citations omitted] The crucial distinction between these cases and the present one is that none involved an invocation of the rule against the client or against the client's stated wishes and interests. Indeed, the decisions cited [by the attorneys] make very clear that their observation about the authority of the attorney to invoke work product protection is limited to situations in which the interests of counsel and client do not conflict in this respect. [Citations omitted]

Martin, at 321-322 (emphasis added.)
Martin involved the application of rule 26, Federal Rules of Civil Procedure not California’s section 2018. Rule 26 codifies the United States Supreme Court holding in Hickman v. Taylor (1947) 329 U.S. 495. The federal rule differs substantially from the California rule. Rule 26(b)(3) states “... the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney ... concerning the litigation.” “The federal provision leaves room for argument that the immunity conferred on ‘‘hard-core’’ work product is not absolute, and federal cases so hold. Under Rule 26... a party can obtain ‘‘opinion’’ work product upon a showing of ‘‘extraordinary justification.’’ BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1250. Under the Federal rule, the protection conferred on “opinion” work product is not absolute.

The Restatement 3rd of the Law Governing Lawyers, sections 87-92 is in accord with the Federal rule. Like the California statute, section 87 of the Restatement distinguishes between “ordinary” and “opinion” work product, defining the latter as opinions or mental impressions of a lawyer. However, thereafter the Restatement differs considerably. Section 90(1) states that “work product immunity may be invoked by or for the person on whose behalf the work product was prepared.” Section 89 provides that opinion work product is immune from discovery or other compelled disclosure unless “immunity is waived, or an exception applies, or extraordinary circumstances justify disclosure.” Sections 91 through 93 govern exceptions to work-product protection, including opinion work product. In contrast to California, section 91 provides that the client or the client’s attorney may waive the work-product protection. Most significantly, section 92(1) specifically addresses our hypothetical. It states that “work product immunity is waived for any relevant material if the client asserts as a material issue in a proceeding that...the client acted on the advice of a lawyer or that the advice was otherwise relevant to the legal significance of the client’s conduct...”

Conclusion
“ Absolute” work-product protection must be interpreted in the context of the attorney’s overarching duty of loyalty to the client, a duty that continues after the representation. The Federal law and the Restatement reflect the appropriate deference to the proposition that an attorney’s absolute duty of loyalty to his or her client by subordinating the attorney’s interest in work-product to the client’s needs. Older California case law interpreting “absolute” work-product protection as solely for the benefit of the attorney does not sufficiently consider the contrary and superceding duties owed by the attorney to the client.
This conclusion does not mean, however, that there are no fact situations where the attorney can ethically assert work-product protection to resist a client’s demand for the production of attorney work-product not reasonably necessary to the client’s representations, such as those situations where the interests of the attorney and the client do not conflict.