Law Firm, Not Lawyer-Employee, Holds Work Product Privilege

By Joan C. Rogers

A law firm didn’t need to get consent from a former attorney employee before disclosing to others materials he created while he was employed there, the California Court of Appeal, First District, held June 21 ( Tucker Ellis LLP v. Superior Court ex rel. Nelson , 2017 BL 212785, Cal. Ct. App., 1st Dist., No. A148956, 6/21/17 ).

The court held that the law firm—not the former employee—was the holder of the attorney work product privilege. This necessarily means the firm had no legal duty to obtain his permission before producing the material, Justice Martin J. Jenkins said.

The case addresses an issue of increasing concern in an era where lawyers frequently change firms. Public policy favors viewing the firm, not the individual attorney, as the holder of the work product privilege, the court found.

The ruling goes against Evan C. Nelson, a California attorney who defended companies in product liability cases during his four years of employment at Tucker Ellis LLP.

Nelson and his former firm have been wrangling for years over its potential liability for releasing a series of emails that he exchanged with scientific consultants at the Gradient Corp. about medical research articles on causes of mesothelioma.

After Nelson left Tucker Ellis, it produced the emails in response to a third-party subpoena, and they became available on the internet and got into the hands of asbestos plaintiffs’ attorneys.

Nelson sued his former employer, saying its disclosure of his attorney work product got him fired from his new law firm and ruined his prospects for finding employment in his field.

Firm Holds Privilege

The court agreed with Tucker Ellis that it owned the disputed documents under California labor law, Nelson’s employment agreement, and the firm’s employment policies.

However, the court said the ownership of the material doesn’t answer the “narrow question of law” presented here—that is, who holds the attorney work product privilege set out in Cal. Civ. Proc. Code §2018.030, as between an employer law firm and a former attorney employee who created documents in the scope of his employment.

The court concluded that under the circumstances here, the “attorney” entitled to invoke the attorney work product privilege was the firm, not its former attorney employee. Tucker Ellis, not Nelson, retained Gradient to assist in litigation for a client of the firm, and the documents in question were created while Nelson was acting as a Tucker Ellis employee, it noted.

This holding avoids intrusion into a law firm’s duty to zealously represent its clients with undivided loyalty, the court said.

Burdensome to Get Consent

The court said a contrary holding would have anomalous results, especially when law firm documents reflect the work product of multiple current and former attorneys who may be practicing in multiple jurisdictions.

It would be burdensome and complicated for a law firm to get permission from these lawyers and to resolve disagreements about whether certain material constitutes work product or who created it, the court said.

Also, to the extent this task would involve former lawyers who created work product for current firm clients, it’s better for the firm itself to speak with one voice about the assertion of the privilege because it has current knowledge of ongoing attorney-client relationships and continuing litigation, the court said.

Justices William R. McGuiness and Stuart R. Pollak were the other panel members.

Greenberg Traurig LLP represented Tucker Ellis. Keller, Sloan, Roman & Holland LLP represented Nelson.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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