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Keywords

litigationattorneydiscoveryfiduciarytrustwillfiduciary duty
attorneydiscoverytrustwillcivil procedure

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Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal.App.3d 264, 218 Cal.Rptr. 205

Facts

On November 14, 1983, Tara, a beneficiary of the Trust, filed a petition in Los Angeles Superior Court seeking instructions regarding the authority of the sole remaining successor trustee, Gordon, and also sought his removal for mismanagement. The petition alleged that Gordon's actions, including soliciting offers to sell the Trust's controlling shares in Getty Oil Company, violated the intent of the Trust. Other beneficiaries later joined in seeking Gordon's removal, alleging breaches of fiduciary duty. During discovery, the beneficiaries sought to compel the production of uncommunicated work-product from Gordon's attorneys, which they claimed was necessary to determine the propriety of Gordon's actions as trustee.

On November 14, 1983, Seth M. Hufstedler as guardian ad litem for Tara Gabriel Galaxy Gramaphone Getty (Tara), a beneficiary of the Declaration of Trust of Sarah C. Getty dated December 31, 1934 (the Trust), filed a petition in Los Angeles Superior Court. On March 12, 1984, an amended petition was filed. The petition seeks, inter alia, instructions as to whether the sole remaining successor trustee Gordon Peter Getty (Gordon), has authority to administer the trust; the petition also seeks the removal of Gordon for mismanagement of the trust corpus.

Issue

Whether an attorney's 'impressions, conclusions, opinions or legal research or theories,' generated in the process of assisting a client to act as a trustee but never communicated to the client, are privileged from discovery by trust beneficiaries who seek to remove the trustee for mismanagement.

The question to be determined in this proceeding in mandate is whether an attorney's 'impressions, conclusions, opinions or legal research or theories,' generated in the process of assisting a client to act as a trustee but never communicated to the client, are privileged from discovery by trust beneficiaries who seek to remove the trustee for mismanagement.

Rule

The attorney work-product privilege is held exclusively by the attorney, and writings reflecting an attorney's impressions, conclusions, opinions, or legal research are not discoverable under any circumstances unless the court finds that denial of discovery will unfairly prejudice the party seeking it.

The attorney work-product privilege was statutorily established in California by the 1963 amendment to section 2016 of the Code of Civil Procedure which added the following second paragraph to subdivision (b): 'The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.'

Analysis

The court analyzed the work-product privilege and determined that it is held exclusively by the attorney, even against the client. The court emphasized that the privilege serves to encourage thorough investigation and legal analysis by attorneys, and that the beneficiaries, while having a fiduciary relationship with the trustee, were litigation adversaries in this context. Therefore, the absolute nature of the privilege applied, preventing the beneficiaries from accessing the uncommunicated work-product.

The lines of cases relied upon by petitioners and the beneficiaries, respectively, represent an ostensible split in authority as to who is the sole holder of the work-product privilege or who 'owns' the work-product. However, for the reasons discussed hereafter, we conclude that the cases relied upon by petitioners correctly hold that the privilege is held exclusively by the attorney in all circumstances and that, specifically, there is no exception to this rule as between attorney and client.

Conclusion

The court issued a writ of mandate, compelling the superior court to vacate its order requiring the disclosure of the attorney's uncommunicated work-product, affirming the attorney's exclusive privilege.

Writ issued.

Who won?

Trustee's attorneys prevailed in the case because the court upheld the work-product privilege, determining that the attorneys' uncommunicated work-product was not subject to discovery by the beneficiaries.

The petitioning attorneys contend that the attorney is the exclusive holder of the work-product privilege in all circumstances and that the attorney may resist discovery efforts by even his client.

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