Ethics Spotlight: Privileged Information Sent Intentionally

May 2024

By Rachelle Cohen 

California Rules of Professional Conduct Rule 4.4, which was added to the most recent rules effective November 1, 2018, provides:

“Where it is reasonably* apparent to a lawyer who receives a writing* relating to a lawyer’s representation of a client that the writing* was inadvertently sent or produced, and the lawyer knows* or reasonably should know* that the writing* is privileged or subject to the work product doctrine, the lawyer shall: (a) refrain from examining the writing* any more than is necessary to determine that it is privileged or subject to the work product doctrine, and (b) promptly notify the sender.”[1] 

This rule is substantially similar to the holding in State Comp. Ins. Fund v. WPS (1999) 70 Cal. App. 4^th 644 (“State Fund”) (holding that a lawyer should refrain from examining materials that clearly appear to be confidential and privileged and were provided or made available through inadvertence) and is part of the line of appellate opinions on which Rule 4.4 was based. See Executive Summary of New Rule of Professional Conduct 4.4, available at https://www.calbar.ca.gov/Portals/0/documents/rules/Rule_4.4-Exec_Summary-Redline.pdf.

Rule 4.4 only addresses inadvertently transmitted information from someone other than a lawyer’s client; however, the court in Clark v. Superior Court, (2011) 196 Cal. App. 4th 37, applied the State Farm holding to a client’s intentional transmission to his lawyer of his employer’s lawyer-client communications that he had improperly taken upon termination of employment. See also Cal. State Bar Formal Opn. 2013-188 (addressing a lawyer’s duties with respect to receipt of intentionally transmitted privileged materials).

The recent opinion in Sundholm v. Hollywood Foreign Press Assn., 2024 Cal. App. LEXIS 130, 2024 WL 805616 (February 27, 2024) leaves open the question of whether the State Fund and Clark holdings apply to otherwise privileged information the client properly received.

In Sundholm, the Court of Appeal reversed the trial court’s ruling disqualifying the lawyer for Sundholm, a former member of the Hollywood Foreign Press Association (HFPA), in Sundholm’s lawsuit against the HFPA. 

The lawyer for Sundholm, David Quinto, had attached to the complaint a draft version of HFPA’s bylaws that included in the upper right corner the notation “Privileged & Confidential Attorney-Client Communication” and was accompanied by a note from HFPA’s counsel that HFPA argued was legal advice. The members of HFPA, including Sundholm, had been sent this version of the bylaws prior to a vote for approval. The trial court granted HFPA’s motion to strike that version of the bylaws from the record. HFPA then moved to disqualify Quinto and his law firm, arguing that he had reviewed a document marked as “Privileged and Confidential,” which violated his duties under State Fund. 

In his opposition to the motion to disqualify, Sundholm argued in part that HFPA waived the privilege by sending the draft bylaws to its members and the media. Quinto had admitted to having another privileged document in his possession, although he argued that was unrelated to the current dispute. The trial court took issue with the fact that Quinto had not responded to a subpoena to produce privileged documents or a privilege log and ultimately granted HFPA’s motion to disqualify. Following case law that requires a showing of prejudice to the movant to support disqualification, the Court of Appeal declared that there was no evidence Quinto possessed privileged information that would prejudice HFPA in the current matter, and reversed the trial court’s order disqualifying Quinto. 

The Court of Appeal, however, specifically refrained from considering whether Quinto had violated his duties under the State Fund case, but did note that State Fund and other cases applying the State Fund rule involved situations where an attorney received privileged or confidential documents as a result of inadvertence or impropriety. By contrast, HFPA had, prior to the litigation, shared the draft bylaws with Sundholm in his role as an HFPA member.

The Los Angeles County Bar Association Op. 531 (July 24, 2019) highlights that decisions on how to comply with Rule 4.4 are not always simple. Specifically, it noted the holding in Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal. App. 4^th 996, which held that a lawyer was not at fault for identifying a witness using information from a privileged memorandum that had been inadvertently produced and provided by a third party, and in fact, the attorney may have had a professional obligation to use the information for the benefit of the client. 

In Sundholm, the bylaws at issue were provided by HFPA to Sundholm as an HFPA member. There was no inadvertent disclosure or impropriety in obtaining the bylaws. On its face, Rule 4.4 would not apply to the facts in Sundholm, and it does not seem that State Fund or its progeny should apply, but the Sundholm court leaves this as an open issue. 

Rachelle Cohen is a partner at Valensi Rose, PLC in Los Angeles. She is the Vice Chair of the California Lawyers Association Ethics Committee and a former Chair of the LACBA Professional Responsibility and Ethics Committee. The views expressed in this article are her own. 

[1] Terms marked with an asterisk are defined in rule 1.0.1. For example, under rule 1.0.1(n), “writing … has the meaning stated in Evidence Code section 250,” which in turn broadly defines “writing” as meaning “handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”