Opinion
Review Granted Jan. 4, 1990.
Previously published at 214 Cal.App.3d 779
Lewis, D'Amato, Brisbois & Bisgaard and Janice Gay Gibbons, San Diego, for petitioners.
No appearance for Respondent.
Leo S. Papas, APC and Leo S. Papas, Bruce A. Ray, Lindley, Lazar & Scales and Ron A. Stormoen, San Diego, for real parties in interest.
NARES, Associate Justice.
Petitioners (Attorneys) are attorneys who have been sued by former clients (Clients) for legal malpractice. Not surprisingly, Clients wish to examine their own files which were generated by Attorneys when Attorneys represented Clients. Attorneys have objected to producing certain writings reflecting their thoughts, impressions, legal research and theories, invoking Code of Civil Procedure section 2018, subdivision (c), which provides such writings "shall not be discoverable under any circumstances."
All statutory references are to the Code of Civil Procedure unless otherwise specified. When referring to statutory subparts we omit repeating the word "subdivision."
In light of the history surrounding California's work product rule, the express statement of its purpose in section 2018(a), and related provisions, we conclude section 2018(c) was never intended to shield attorney work product from the lawyer's own client where the client sues the lawyer for legal malpractice. We acknowledge that "not discoverable under any circumstances" is emphatic. Nevertheless, because a statute's literal language must yield where it leads to a result inconsistent with the statute's purpose, we agree with the superior court that the requested documents are discoverable.
As discussed in more detail below, we construe the so-called "absolute" work product protection in the context of section 2018(e) which requires client consent to the disclosure of work product to the State Bar in disciplinary proceedings, Business and Professions Code section 6202 which provides the work product rule does not prohibit relevant evidence in an attorney fee arbitration proceeding, and Rules of Professional Conduct rule 3-700(D) requiring the attorney whose employment has terminated to release "client papers and property" to the former client.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1989 Clients filed their second amended complaint against Attorneys for professional negligence and breach of fiduciary duty. Essentially, Clients allege they employed Attorneys to represent them in an investment and that Attorneys secretly represented an interest adverse to Clients in the same transaction. Attorneys' answer contains a general denial and several affirmative defenses.
Clients served attorneys Shearn H. Platt, Martha Lessman Katz and Rudick, Platt & Victor with a request for production of documents under section 2031. Each request seeks, among other writings:
"Any and all ... writings ... in your possession ... which relate to or concern: [p] 1. Any respect of your representation of any plaintiff ... at any time, including all files (including covers), correspondence, pleadings, inter-office notes and memoranda, telephone messages, contracts for services, engagement letters/fee agreements, research work papers, notes and memoranda, drafts, agreements, billing statements, time sheets, diaries, appointment books, computer printouts, forms, ledger cards, notes of meetings and notes of telephone conferences...."
The responding attorneys withheld 49 writings from the documents requested, including "attorney's notes," "memorand[a]" and "research," asserting the attorney work product "privilege" protected each such writing from discovery.
DISCUSSION
I
Introduction
Section 2018 does not define work product, but divides it into two separate categories. "Ordinary" work product is not discoverable "unless the court determines "Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances."
Attorneys contend section 2018(c) means what it says: Even where an attorney's thoughts are not simply the means to the end of effective legal representation, but instead are operative facts in a malpractice case, the attorney's former client cannot discover such writings in his own file. Attorneys' contention is not without force.
The literal meaning of section 2018(c) supports Attorneys. Section 2018(c) states the writings are not discoverable "under any circumstances" and an attorney malpractice case is obviously a "circumstance." Moreover, several courts, although faced with facts where someone other than a former client has sought "absolute" work product, have gratuitously stated or implied the work product rule can be asserted by an attorney even against a former client. (See, e.g., Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 453, 191 Cal.Rptr. 871; Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 501, 165 Cal.Rptr. 748; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1251, 1254, 245 Cal.Rptr. 682; Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68, 166 Cal.Rptr. 274.) Indeed, Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 192 Cal.Rptr. 104, a case from this court, on the one hand notes the attorney's former client was not a party to the appeal, but on the other suggests the attorney could "correctly" assert the work product rule against his former client's wishes. (Id. at p. 812, fn. 3, 192 Cal.Rptr. 104.)
Rumac holds the work product rule applies to a lawyer's work product whether generated in a litigation or transactional capacity. The lawyer's former client in Rumac, Eugene F. Craig, was not a party to the appeal and this court noted, "[W]e do not address the extent of an attorney's liability for correctly asserting the absolute privilege against his former client's wishes which proximately causes damages to his former client." (Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 812, fn. 3, 192 Cal.Rptr. 104.) As demonstrated by this quotation, this court did not hold the absolute work product rule could properly be invoked by a lawyer against his former client in a malpractice action. Any attempt to so read Rumac inappropriately takes it beyond its own facts and analysis. A case is not authority for a proposition that it neither analyzes nor discusses.
Following the lead of these cases, a recent opinion held an attorney sued for malpractice could withhold "opinion" work product from his former client as "privileged" under section 2018(c). (Neeb v. Superior Court (1989) 262 Cal.Rptr. 887.) As discussed in more detail below, in our view, Neeb reaches an incorrect conclusion because it fails to consider, much less reconcile, its holding in light of other statutes and rules requiring attorneys to deliver their work product to former clients.
Statutory interpretation requires much more than unhesitatingly applying a statute's literal language. The literal approach urged by Attorneys asks the wrong question. The issue is not what the words mean, but what the Legislature meant by them.
A purely literal interpretation of any part of a statute will not prevail over the purpose of the legislation. (In re Kernan (1966) 242 Cal.App.2d 488, 491, 51 Cal.Rptr. 515.) "Words will not be given their literal meaning when to do so would make the provisions of a statute apply to transactions never contemplated by the legislative body. The intent of a law prevails over the letter and the letter will, if possible, be so read as to conform to the spirit of the act. [Citation omitted.]" (LaBorde v. McKesson & Robbins, Inc. (1968) 264 Cal.App.2d 363, 370, 70 Cal.Rptr. 726.) "[C]ourts resist blind obedience to the putative 'plain meaning' of a statutory phrase where literal interpretation would defeat the Legislature's central objective." (Leslie Salt Co. v. San Francisco Bay Conservation
Applying these principles in other contexts, courts have determined such "plain" language as "spouse" does not really mean spouse in Unemployment Insurance Code section 1032 (Altaville Drug Store, Inc. v. Employment Development Department (1988) 44 Cal.3d 231, 242 Cal.Rptr. 732, 746 P.2d 871); "brought" does not really mean brought in Code of Civil Procedure section 1038 (Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 218 Cal.Rptr. 772); and "all types of vehicular riding" does not really mean all types, but only recreational vehicular riding, under Government Code section 846 (Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1027, 157 Cal.Rptr. 612; disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168.) If "spouse" does not necessarily mean spouse, and if "all" can mean less than everything, it should not be surprising that "any circumstances" may not include the situation where, as here, a former client, in prosecuting a legal malpractice action, seeks work product created by his former lawyer during the representation.
Delta Farms disapproved Gerkin to the extent it applied Government Code section 846 to a public entity. The Supreme Court in Delta Farms did not disapprove Gerkin's interpretation that the statute only applied to recreational uses.
Moreover, although Neeb v. Superior Court, supra, 262 Cal.Rptr. 887, held an attorney may assert the absolute work product rule against a former client in a malpractice case, other courts considering this issue have suggested to the contrary. Thus, although the court in Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 278, 218 Cal.Rptr. 205 states "the attorney is the sole holder of the privilege and may effectively assert it even as against a client," the court distinguishes its facts from those here--a legal malpractice case--and remarks, "[t]here are strong ethical public policy considerations for concluding that the client has an absolute right of access to all work product generated by his attorney in representing the client's interests." (Id. at p. 279, 218 Cal.Rptr. 205.) Similarly, in Roberts v. Heim (N.D.Cal.1988) 123 F.R.D. 614, the court held the attorney could not assert the absolute work product rule against a former client suing for malpractice:
"It is difficult, if not impossible, to see how providing a client with his attorney's work product, which has been created by his attorney and for his benefit and not that of the attorney, would in any way
As discussed in more detail below, we disagree with Neeb and we question the dicta in Rumac and the comments in the other cases cited above to the extent they suggest an attorney may assert section 2018(c) against his former client in a malpractice case. None of those cases examines section 2018(c) in the context of a legal malpractice action, nor do they fully examine section 2018(c) in light of its origins, context or purpose. Accordingly, in light of our Supreme Court's direction to interpret a statute "in such a way as to render it 'reasonable, fair and harmonious with (its) manifest (legislative) purposes ...' [citation omitted]" (County of San Diego v. Muniz (1978) 22 Cal.3d 29, 36, 148 Cal.Rptr. 584, 583 P.2d 109), we examine the legislative history and context of section 2018(c).
II
Legislative History
Even before California enacted its first Discovery Act in 1956, the State Bar was concerned about the extent to which an attorney's "working papers" were discoverable. In 1952 the State Bar sponsored a bill to amend the attorney-client privilege then contained in Code of Civil Procedure section 1881(2) to read: "[N]or can an attorney's working papers ... be examined without the consent of the client." (Committee Reports-Administration of Justice (1952) 27 State Bar J. 175, 191.) "Working papers" was intended to include "the attorney's own work product." (Id. at p. 192.) The State Bar's efforts were later abandoned, however, because it believed Holm v. Superior Court (1954) 42 Cal.2d 500, 267 P.2d 1025 "removed many of the problems on working papers of the attorney; and that legislation is not necessary at this time." (Committee Report-Administration of Justice (1954) 29 State Bar J. 224, 240.) In Holm, the Supreme Court held photographs transmitted to counsel to assist him in defending an action were within the attorney-client privilege.
Thus, under California law in the early 1950's, materials now considered work product were subsumed under the attorney-client privilege and were, therefore, (1) absolutely privileged against the client's adversary (no showing of good cause or necessity could compel production); but (2) were discoverable upon client consent. The attorney-client privilege is the client's, not the attorney's, and if it results in protecting the attorney "it does so only accidentally as a result of the assertion of the client's right." (Abbott v. Superior Court (1947) 78 Cal.App.2d 19, 21, 177 P.2d 317.) Accordingly, if such materials could be disclosed to adversaries upon client consent, it would make no sense to suggest the client himself could be prohibited from viewing the same writings.
In 1947 the United States Supreme Court interpreted the Federal Rules of Civil Procedure to contain a work product rule. (Hickman v. Taylor (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.) Although Hickman determined witness statements, memoranda and writings reflecting an attorney's mental impressions, opinions or legal theories were not within the attorney-client Accordingly, as California was preparing to enact a Discovery Act in 1956, state law gave absolute protection to work product based upon the attorney-client privilege, but the federal rules granted only qualified protection founded on a work product doctrine. Notwithstanding the different theoretical underpinnings and degrees of work product protection, under both federal and state law, work product was insulated from discovery by the client's adversary to further the client's interests. For example, in Hickman the court states:
"Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.... This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.... Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten." (Id. at p. 511, 67 S.Ct. at p. 393; emphasis added.)
Similarly, in Holm the California Supreme Court stated:
"The attorney-client privilege is an important element in the effectiveness with which the counselor-at-law is to advise his client and safeguard the latter's interests. Where, as here, the right to the privilege is clearly established it should not be cast aside." (Holm v. Superior Court, supra, 42 Cal.2d at p. 509, 267 P.2d 1025.)
As demonstrated by these quotations, work product protection, whether based on the attorney-client privilege or the Hickman doctrine, was intended to allow attorneys to adequately represent their clients. Work product protection was a means to that end, and not the end itself.
Apparently concerned that Hickman's lower level of protection would influence California law, in 1956 the State Bar suggested the following provision which was enacted in 1957 as section 2016(b):
"All matters which are privileged against disclosure upon the trial under the law of this State are privileged against disclosure through any discovery procedure. This article shall not be construed to change the law of this State with respect to the existence of any privilege, whether provided for by statute or judicial decision, nor shall it be construed to incorporate by reference any judicial decisions on privilege of any other jurisdiction." (Stats.1957, ch. 1904, § 3, pp. 3322-3323; see also Pruitt, Lawyers' Work Product (1962) 37 State Bar J. 228, 235.)
This statutory attempt to perpetuate the treatment of "work product" as attorney-client privileged communications (by incorporating Holm and preventing incorporating Hickman ) went awry in the early 1960's. In Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266 and Suezaki v. Superior Court (1962) 58 Cal.2d 166, 23 Cal.Rptr. 368, 373 P.2d 432, the California Supreme Court retreated from and ultimately overruled Holm, determining that photographs transmitted to an attorney were not within the attorney-client privilege. Because section 2016(b) precluded incorporating federal decisions, work product was neither protected by the attorney-client privilege nor the Hickman doctrine. In California, after Suezaki and Greyhound, work product was only "one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted." (Suezaki v. Superior Court, supra, 58 Cal.2d at p. 178, 23 Cal.Rptr. 368.)
In five years, then, work product in California had gone from an absolute privilege under the attorney-client privilege to "one factor" in determining whether discovery would be allowed. The State Bar's Committee on Administration of Justice "was unanimously of the opinion that some type of legislation was required at an early date to correct the implications in Greyhound
"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.
"....
"It is the policy of this State (i) to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to prevent an attorney from taking undue advantage of his adversary's industry or efforts." (Stats.1963, ch. 1744, § 1, pp. 3478-3479.)
Despite amendments to section 2016 in 1965, 1982 and 1984, together with complete restructuring of the Discovery Act in 1986, the provision at issue here--the absolute work product protection now contained in section 2018(c)--has not changed since 1963. Excluding cosmetic changes, the statement of legislative purpose, first enacted as section 2016(g) and now contained in section 2018(a), has not changed since its inception. Accordingly, evidence of the Legislature's purpose in enacting these provisions in 1963 is highly relevant to determining its purpose now. Because the Legislature enacted the State Bar's proposal almost verbatim, its report is a valuable interpretive aid; we can reasonably assume the Legislature adopted the statute with a purpose consistent with those expressed by the State Bar. (Sales v. Stewart (1933) 134 Cal.App. 661, 664, 26 P.2d 44; 2A Sutherland Statutory Construction § 48.11 (4th Ed.) 322, 323.)
The State Bar committee which sponsored the 1963 amendment states its purpose was "... to fulfill the general intent of the Legislature at the time of enactment in 1957, second, to protect the lawyer's normal work processes, third, in other relationships, to establish a more desirable balance between 'discovery' and the right of litigants and prospective litigants to obtain advice of experts, make investigations and do other acts, without fear of unlimited or indiscriminate disclosures to, and use by adversaries." (Committee Report-Administration of Justice (1962) 37 State Bar J. 585, 586; fn. omitted; emphasis added.)
As discussed above, the Legislature's "general intent" in 1957 was to adopt Holm and give absolute protection to an attorney's "working papers" as against a client's adversary. The sentence in the 1957 version of section 2016(g) stating: "All matters which are privileged against disclosure upon the trial under the law of this State are privileged against disclosure through any discovery procedure" was added "In the light of the foregoing history and the status of the California law in 1957, it seems clear that the purpose and intent of the legislature in enacting the last two sentences of [the 1957 version] of Section 2016(b) was (i) to evidence its hearty approval of the broad scope of the attorney-client privilege as set for in ... Holm ... (ii) to provide a positive mandate for the California courts not to permit the discovery of photographs, witnesses' statements, and the like on the authority of the dictum in Hickman v. Taylor ... permitting discovery of such materials in proper cases and upon a showing of adequate reasons justifying discovery...." (Id. at pp. 235-236; fns. omitted.)
Similarly, in light of Holm and as of 1962, the lawyer's "normal work processes" would not include shielding his opinion work product from his client; such writings were considered part of the attorney's "working papers" protected by the attorney-client privilege, a privilege solely for the client's protection and subject to the client's sole control. The State Bar's last reason for the 1963 amendment is to prevent inappropriate disclosures to "adversaries"--not the lawyer's client--for which the work product is produced.
In a report discussing the proposed amendment to the attorney-client privilege--the proposal which was abandoned after Holm made it unnecessary--the State Bar commented:
The entire context of the absolute work product protection first enacted in 1963 was to prevent inappropriate discovery by third-party adversaries. To the extent absolute protection was afforded, its theoretical foundation was the attorney-client privilege, a privilege which, of course, exists for the client's benefit and one which the client controls. The absolute protection had nothing to do with shielding attorney ideas from the attorney's own client. There is nothing in the legislative history which suggests that such an idea was even considered, much less adopted.
III
Context
In interpreting statutes, " 'the court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject.' " (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 954, 196 Cal.Rptr. 45.) Section 2018(c)'s immediate context is section 2018(a) which states:
"It is the policy of the state to: (1) preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases; and (2) to prevent attorneys from taking undue advantage of their adversary's industry and efforts."
Where, as here, the Legislature has expressly stated its purpose, certainly the absolute terms in section 2018(c) must be interpreted consistently with the policy stated in section 2018(a).
Section 2018(a) expresses not only the privacy rationale of Hickman v. Taylor, "Here, plaintiffs inquired about the law firm's interoffice memos concerning a previous action. Since these memos are writings reflecting an attorney's 'impressions, conclusions, opinions, or legal research or theories,' they are absolutely privileged from discovery. [p ] ... If filing a malicious prosecution action (or, by the same logic, a malpractice action ) could automatically open an attorney's files to a prior action, then an attorney, anticipating such a future suit, would hesitate to commit his or her doubts about a case to paper." (Id. at pp. 500-501, 165 Cal.Rptr. 748; emphasis added.).
Essentially, Attorneys' argument and the Popelka court's reasoning is the good of all clients requires an attorney be permitted to keep his thoughts, research, and legal theories secret from his own client, regardless of the hardship or injustice such a rule produces in the individual case and regardless of whether those thoughts, now reduced to writing, have become operative facts in litigation by the client against his former attorney. In the context of an attorney malpractice case, which was not the situation facing the court in Popelka, this paternalistic approach is not only transparently self-serving, but incorrect. An attorney apprehensive about the risk of a malpractice suit will, if anything, produce more copious notes and writings to protect himself rather than be "chilled" from documenting his thoughts, ideas, and research. Moreover, in 1988 the Legislature enacted section 2018(e) which provides the State Bar access to an attorney's work product in certain disciplinary proceedings relevant to issues of the lawyer's breach of duty. Business and Professions Code section 6202 provides the work product rule does not prohibit relevant evidence in an attorney fee arbitration. If attorneys' writing habits are going to be chilled by the threat their clients will gain access to private thoughts, that effect has already occurred by virtue of section 2018(e) and Business and Professions Code section 6202. Any increased disincentive for an attorney to reduce his thoughts, opinions or research to writing by our holding is, therefore, either nonexistent or, at best, marginal and does not support interpreting section 2018(c) to preclude Clients access to their own files in this malpractice action.
Section 2018(e) provides:
The privacy guaranteed by section 2018(a) is not an end in itself. Other than a literal interpretation of its terms, nothing in section 2018 or its legislative history supports an assertion it is intended to afford an attorney's thoughts a degree of privacy from the lawyer's own former client which is not only unavailable to other professionals, but which can be used by the lawyer to thwart the client's remedy for legal malpractice. To the contrary, the absolute privacy afforded the attorney's thoughts, research and opinions is intended to insure an attorney's impressions cannot be used, under "any circumstances" against his own client: "In every instance in which an attorney is consulted ... he must be free to give his candid ... opinion, and equally free to record it and his mental impressions and conclusions. No other rule is compatible with the interests of justice.... So the attorney may not properly perform, and the client may not seek his due, if candid professional opinions prepared for a client in one case may be used against the client in subsequent litigation...." (Duplan Corp. v. Moulinage et Retorderie de Chavanoz (4th Cir.1974) 509 F.2d 730, 736.)
Because this statement is based upon the United States Supreme Court's opinion in Hickman, and because the California Supreme Court in People v. Collie (1981) 30 Cal.3d 43, 60, footnote 13, 177 Cal.Rptr. 458, 634 P.2d 534, has endorsed the Hickman privacy rationale, this federal case is authoritative in these circumstances.
Work product protection is given "to assure that an attorney is not inhibited in his representation of his client by the fear that his files will be open to scrutiny upon demand of an opposing party. Counsel should be allowed to ... commit his opinions and thought processes to writing free of the concern that, at some later date, an opposing party may be entitled to secure any relevant work product documents merely on request and use them against his client." (In re Murphy (8th Cir.1977) 560 F.2d 326, 334; emphasis added.)
"The most commonly recognized danger in ordering discovery of work product is that the attorney will be inhibited by the possibility that the strategies and ideas he develops to present his client's case could be put in the hands of the opposing party to the detriment of his client." (People v. Collie (1981) 30 Cal.3d 43, 60, fn. 13, 177 Cal.Rptr. 458, 634 P.2d 534; emphasis added.)
Accordingly, the privacy rationale supporting the absolute work product protection is not subverted by interpreting section 2018(c) to provide Clients access to their own files. Attorney's impressions, conclusions, and other such work product is not sought by a third party to use against Attorneys' Clients.
Section 2018(c) must be interpreted not only consistently with section 2018(a), but also with other related legislation. Above we noted the exception to the work product rule applicable in State Bar proceedings under section 2018(e). Additionally, the work product rule is implicated in Business and Professions Code section 6202 and RULES OF PROFESSIONAL CONDUCT RULE 3-700(D) . Because section 2018(c) should be construed in harmony with these other provisions, we now consider their relationship to the issue presented here.
All rule references are to the Rules of Professional Conduct unless otherwise specified.
Under section 2018(e), as previously mentioned, the State Bar may discover even opinion work product where relevant to issues involving an attorney's breach of duty. Significantly, however, section 2018(e) permits such discovery only upon client consent:
"The State Bar may discover the work product of an attorney against whom disciplinary charges are pending when it is relevant to issues of breach of duty by the lawyer, subject to applicable client approval...." (§ 2018(e); emphasis added.)
However, as originally introduced in Senate Bill No. 1498 (1987), this section did not require client consent:
"(e) The State Bar may discover work product when it is relevant to issues of breach of duty by a lawyer against whom disciplinary proceedings are pending." (Sen. Bill No. 1498 (1987-1988 Reg. Sess.) § 13.)
The State Bar's Committee on the Administration of Justice opposed this version of the bill "on the grounds that the work product protection belongs to the client, not the State Bar. This does not mean that the State Bar cannot obtain work product material. Rather, it would require the State Bar to first obtain the consent of the client." (Committee on Administration of Justice, State Bar, Memorandum, (Nov. 2, 1987); emphasis added.) Following this report, the bill was amended to require client consent. We draw three conclusions from section 2018(e) and its legislative history. First, we may presume the Legislature's amending Senate Bill No. 1498 consistently with the State Bar's objection reflects its agreement the work product protection exists for the client's benefit and is ultimately subject to the client's control. (See Belli v. Roberts Brothers Furs (1966) 240 Cal.App.2d 284, 288-289, 49 Cal.Rptr. 625; Sales v. Stewart, supra, 134 Cal.App. at p. 664, 26 P.2d 44.) Second, if the Legislature believes the attorney's work product ultimately "belongs" to the client and requires client consent before such work product is accessible to the State Bar, in a proceeding involving section 2018(e), the client must be entitled to examine that work product. Third, permitting a client to inspect his attorney's work product in a disciplinary proceeding involving the lawyer's breach of duty, but not in a civil suit involving similar issues is irrational. Accordingly, interpreting section 2018(c) to provide Clients access to Attorneys' opinion work product is consistent with, and compelled by, section 2018(e).
Neeb v. Superior Court (1989) --- Cal.App.3d ----, 262 Cal.Rptr. 887, attempts to fortify its holding by stating the requirement of client consent in section 2018(e) exists because "the Legislature was concerned solely with protecting the client's privacy interests during the course of a confidential State Bar investigation of counsel's activities." (Id., at p. ----, 262 Cal.Rptr. at 888.) However, as demonstrated in the text above, Neeb is wrong. The Legislature added the requirement of client consent because of its understanding that work product "belongs" to the client. Neeb does not cite or discuss this legislative history, and as a result has reached an erroneous conclusion.
We reject Attorneys' assertion that the Legislature's failure to specifically enact an attorney malpractice exception to section 2018(c) in 1988 compels a contrary conclusion. Attorneys' argument rests on the principle the Legislature's failure to alter a statute when the subject is before it indicates an intention the law remain unchanged. (Kirby v. Alcoholic Bev. etc. Appeals Bd. (1975) 47 Cal.App.3d 874, 877, 121 Cal.Rptr. 572.) There is nothing wrong with the rule Attorneys cite; however, their premise--that the subject was before the Legislature in 1988--is incorrect. The amendment to section 2018 which added section 2018(e) was part of a comprehensive State Bar disciplinary bill which made various changes in the law relating to the State Bar, including revising the standards and procedures for imposing involuntary inactive enrollment of an attorney, increasing the membership of the examining committee, providing for fingerprinting of certain State Bar members, and making approximately 22 other changes relating to State Bar matters. The general subject of the work product rule and civil discovery was not, therefore, before the Legislature in Senate Bill No. 1498 and the Legislature's failure to enact a specific malpractice exception cannot be construed to indicate its opposition to such a result.
Business and Professions Code section 6202 also involves work product, providing the work product rule does not prohibit relevant evidence in an attorney fee arbitration proceeding:
Before the Legislature enacted the Discovery Act of 1986, the work product rule was contained in section 2016. Business and Professions Code section 6202 was most recently amended in 1984, which explains its reference to section 2016 instead of 2018. Apparently this statute was forgotten when the work product rule was restated in section 2018 and we construe its reference to section 2016 to now mean 2018.
"The provisions of [the attorney-client privilege] ... shall not prohibit the disclosure of any relevant communication, nor shall the provisions of Section 2016 of the Code of Civil Procedure be construed to prohibit the disclosure of any relevant work product of the attorney in connection with: (1) an arbitration hearing pursuant to this article; (2) a trial after arbitration...." (Bus. and Prof. Code, § 6202.)
Attorneys contend this statute reveals the Legislature's awareness that absent a statutory exception, an attorney's absolute work product is inaccessible to his own client. We disagree. The statute similarly addresses both the attorney-client privilege and the work product rule. It is, therefore,
Last, section 2018(c) must be viewed in light of an attorney's ethical obligation to deliver the client's file to either the client or another attorney upon being discharged. A client who discharges his lawyer, but does not sue, should not receive more documents than one who discharges his lawyer, but additionally sues him for malpractice.
Rule 3-700(D) provides:
"A member whose employment has terminated shall:
"....
"(1) [P]romptly release to the client, at the request of the client, all the client papers and property. 'Client papers and property' includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not...."
Rule 3-700(D)'s accompanying "Discussion," citing Academy of California Optometrists, Inc. v. Superior Court (1975) 51 Cal.App.3d 999, 124 Cal.Rptr. 668 and Weiss v. Marcus (1975) 51 Cal.App.3d 590, 124 Cal.Rptr. 297, states the rule is intended to codify "existing case law." In Weiss v. Marcus, supra, 51 Cal.App.3d 590, 124 Cal.Rptr. 297, the court held the " 'work product' " of the discharged attorney "belongs to the client, whether or not the attorney has been paid for his services." (Id. at p. 599, 124 Cal.Rptr. 297.) Academy of California Optometrists, Inc. v. Superior Court, supra, 51 Cal.App.3d 999, 124 Cal.Rptr. 668 involved a dispute between a discharged attorney and the former client where the attorney was attempting to assert a lien on the client's file. The court itemized the file to include "extensive notes, papers, memoranda, and communications collected during five years of representation," but the court did not refer to section 2016 (former § 2016). Academy of California Optometrists, Inc. held the lawyer's ethical obligations required he "forthwith deliver" to his former client "all files, documents, and papers in his possession relating to the action." (Id. at pp. 1004, 1006, 124 Cal.Rptr. 668.)
Rule 1-100(C) states the Discussion is "intended to provide guidance for interpreting the rules and practicing in compliance with them."
Citing Weiss and Academy of California Optometrists, Inc., in Kallen v. Delug (1984) 157 Cal.App.3d 940, 203 Cal.Rptr. 879, the court states:
"It is a breach of ... duty ... to retain a client's case files after discharge, in that an attorney's work product belongs absolutely to the client...." (Id. at p. 950, 203 Cal.Rptr. 879.)
John F. Matull & Associates, Inc. v. Cloutier (1987) 194 Cal.App.3d 1049, 240 Cal.Rptr. 211 has more recently reaffirmed Kallen, stating, "The law is clear that 'an attorney's work product belongs absolutely to the client.' " (Id. at p. 1056, 240 Cal.Rptr. 211.)
Despite the broad language contained in these cases, none examine the relationship between the attorney's ethical obligations and section 2018(c). Moreover, Attorneys correctly note the categories of writings which typically contain "absolute" work product, such as memoranda and notes, are conspicuously absent from the list of "client papers and property" contained in rule 3-700(D). Although the rule's accompanying Discussion states it is intended to codify Academy of California Optometrists, Inc. and Weiss, to the extent those cases are construed as requiring the client's entire file be made available, rule 3-700(D) itself does not support such an interpretation. Instead, under rule 3-700(D), the critical inquiry is whether a specific document contained in the file is "reasonably necessary to the client's representation." If so, it must be delivered to the client, whether it is specifically among the types of writings listed in rule 3-700(D)(1), or falls within some other category.
One local bar association has attempted to do so, concluding that the absolute portion of the work product rule permits an attorney whose services are terminated to withhold such writings from the client because "such papers ... are the 'property' of the attorney, rather than the client." (Ethics Opn. SD 1984-3 at p. 2.) We disagree with this nonbinding opinion because it relies on the dicta in Rumac and Popelka line of cases which, as discussed in the text above, we question. Ethics Opinion SD 1984-3 also fails to reconcile its result with the broad language in Academy of California Optometrists, Inc. and also inappropriately relies on a title theory, stating the attorney's opinions, thoughts, research and impressions "are the 'property' " of the attorney, rather than the client." (Ibid.) For purposes of limiting discovery, long ago courts rejected the concept that an attorney has a property interest in the fruits of his work:
By way of example, a legal research memorandum would be "reasonably necessary to the client's representation" and the discharged attorney would, therefore, be required to deliver it to the client, despite the absence of the word "memoranda" in
Lawyers are not technicians. Lawyers negotiate, advocate, counsel, investigate, draft documents, research and perform countless other activities requiring a variety of intellectual skills. An attorney's impressions, conclusions, opinions, legal research and legal theories prepared in the client's underlying case are the heart of the client's representation and are, therefore, manifestly "reasonably necessary to the client's representation." Accordingly, whether such thoughts are expressed in correspondence, pleadings, and exhibits (items specifically listed in rule 3-700(D)(1)) or in other types of writings, such as memoranda, the lawyer's ethical duties under rule 3-700(D) require him to deliver such writings to the client upon discharge.
A client suing for legal malpractice must typically prove not only negligence, but causation: Non-negligent management of the underlying case would have resulted in a favorable outcome. (Campbell v. Magana (1960) 184 Cal.App.2d 751, 754, 8 Cal.Rptr. 32.) In this context, where issues of breach of the lawyer's duty and probable success in the underlying case are involved, the lawyer's impressions, conclusions, opinions, legal research and theories which would have been "reasonably necessary to the client's representation" had he simply been discharged, will now be "relevant to the subject matter" (§ 2017) of the malpractice case and, therefore, within the scope of permissible discovery, now that the lawyer has been sued.
Section 2017 provides in part:
Unless providing impediments to a client's attempt to successfully prosecute a malpractice case against his former lawyer has become a state policy, it makes no sense to suggest a lawyer who is merely discharged must deliver writings reflecting his opinions and thoughts about the former representation, but not one who is sued. Accordingly, because section 2018(c) must be construed sensibly and harmoniously with an attorney's ethical obligations, we conclude section 2018(c) cannot be asserted where, as here, a former client, in prosecuting a legal malpractice action, seeks work product created by his former lawyer during the representation.
We hold section 2018(c) is not a bar to the discovery sought here. Existing law provides other limitations on discovery, which are unaffected by our holding, including section 2031(e) which authorizes protective orders "for good cause shown." For example, where an attorney challenges the relevancy of a requested work product document, an in camera proceeding may be appropriate to determine whether a protective order should be issued.
IV
DISPOSITION
Because we hold the writings sought by Clients are not protected from discovery under section 2018(c), we do not reach the other issue presented, whether Attorneys' reviewing such materials in preparation for their respective depositions waived the protection.
Petition denied.
WIENER, Acting P.J., and TODD, J., concur.
"In reality 'words do not have single, fixed, and immutable meanings established by some authority in nature or supernature, ... instead, they have only such meanings as are given to them from time to time when they are spoken, written, heard, or read by persons endeavoring to participate in the communication process.' [Citation omitted.] In short, whether the words of a statute are clear is a more complicated question than is often supposed by the party who, in reliance upon an asserted 'plain meaning,' objects to judicial interpretation. Such an objection can never really be sustained for, regardless whether the proposition be judicially acknowledged, it requires interpretation even to agree with the meaning claimed by the objecting party.
"......................
"Thus, 'in analyzing the legislative usage of certain words, " 'the objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration....' " ' [Citation omitted.]"
In determining whether the work product rule applies to a client seeking documents created by his attorney during the course of the representation, Roberts found only one federal case on point--Spivey v. Zant (5th Cir.1982) 683 F.2d 881--holding work product pertains to materials prepared by an attorney when the materials are sought by an adversary of the attorney's client and did not, therefore, prohibit a client from gaining access to his own file. Then, looking to California law, Roberts concluded it was the same: "[A]n attorney cannot assert the work-product privilege against his own client...." (Roberts v. Heim, supra, 123 F.R.D. at p. 635, fn. 10.)
"Notwithstanding the scope of discovery hereinabove set forth, it is the policy of this state (i) to preserve the rights of parties and their attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to so limit discovery that one party or his attorney may not take undue advantage of this [sic] adversary's industry or efforts. Accordingly, the following 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:
"(1) The work product of an attorney ... [p] (2) ... Provided always that any writing that reflects an attorney's mental impressions, conclusions, opinions or legal theories shall not be discoverable under any circumstances." (Committee Reports-Administration of Justice (1962) 37 State Bar J. 585, 586-587.)
"It has long been the rule in England that reports prepared for the attorney are privileged, as of course is the attorney's own work product.... The purpose of the [1952] amendment proposed is to adopt the substance of the English rule. [p] It will be observed that the proposed amendment deletes wording that literally makes the privilege that of the attorney, rather than that of the client ...." (Committee Reports-Administration of Justice (1952) 27 State Bar J. 175, 192; emphasis added.)
"The State Bar may discover the work product of an attorney against whom disciplinary charges are pending when it is relevant to issues of breach of duty by the lawyer, subject to applicable client approval and to a protective order, where requested and for good cause, to ensure the confidentiality of work product except for its use by the State Bar in disciplinary investigations and its consideration under seal in State Bar Court proceedings. For purposes of this section, whenever a client has initiated a complaint against an attorney, the requisite client approval shall be deemed to have been granted."
"The express inclusion of 'a legal opinion' in the last clause will preclude a possible construction of this section that would leave the attorney's uncommunicated legal opinion--which includes his impressions and conclusions--unprotected by the privilege. Such a construction would virtually destroy the privilege." (Law Revision Commission Comment to 1967 amendment to Evid.Code, § 952.)
Under section 2018(c), an attorney's uncommunicated legal opinion is also within the so-called "absolute" work product rule.
Now assume the lawyer is sued for malpractice. If the uncommunicated opinion is favorable to the lawyer's case, the "breach of duty" exception to the attorney-client privilege contained in Evidence Code section 958 permits him to disclose the opinion. Moreover, under the literal interpretation of section 2018(c) urged by Attorneys here, the lawyer's sole control over section 2018(c) materials allows the lawyer to likewise waive that protection. In these circumstances, the evidence is discoverable.
However, if the uncommunicated opinion is harmful to the lawyer's case, under Attorneys' theory of the work product rule, section 2018(c) precludes discovery, although Evidence Code section 958 does not.
Thus, if the evidence is beneficial to the lawyer who is sued for malpractice, the evidence is discoverable, but if harmful, it is not. In our view, not only would such an arbitrary rule be unfair, but public perceptions regarding it would poorly serve the broader interests of the legal profession.
Because such a result is so irrational, it compels a conclusion it could not have been intended by the Legislature.
Accordingly, we reject Attorneys' contention that the Legislature's failure to enact an exception to section 2018(c) analogous to that created in Evidence Code section 958 indicates an intention to provide no such exception.
The Rules of Professional Conduct became effective in May 1989. The Discussion accompanying rule 3-700 states it is intended to codify Academy of California Optometrists, Inc. v. Superior Court, (1975) 51 Cal.App.3d 999, 124 Cal.Rptr. 668 and Weiss v. Marcus (1975) 51 Cal.App.3d 590, 124 Cal.Rptr. 297.
Significantly, the Discussion does not cite as the basis for its rule any of the cases which, in dicta, state the attorney may assert the absolute work product rule against a former client, such as Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 191 Cal.Rptr. 871, Popelka, Allard et al. v. Superior Court (1980) 107 Cal.App.3d 496, 165 Cal.Rptr. 748, Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 166 Cal.Rptr. 274 or Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 192 Cal.Rptr. 104.
If rule 3-700(D) was intended to permit a lawyer to withhold his absolute work product on the ground that section 2018(c) already gave the lawyer that right, certainly its Discussion would have cited such cases along with Weiss v. Marcus. Because it did not, we would reject the suggestion that rule 3-700(D)(1)'s failure to list memoranda or notes among the list of writings which must be delivered to the client is based on an unstated assumption that such items are not discoverable under section 2018(c).
"The liberal scope of discovery ... displaces any concept of proprietary or quasi-proprietary interest which, under the prior practice, a party to a suit may have claimed in the fruits of his investigation." (Hickman v. Taylor (1945) 4 F.R.D. 479, 482.)
"(a) Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence."