Business Law

Business Law Annual Review 2016

Business Litigation: Year in Review

Dean Kirby

Dean Kirby is a member of firm of Kirby & McGuinn, A P.C., a seven-lawyer boutique firm with offices in San Diego. He represents lenders, creditors and fiduciaries, in bankruptcy, foreclosure and commercial collection matters.

The Business Litigation Committee is the newest committee of the Business Law Section. In addition to its work in presenting continuing legal education programs, monitoring and, if appropriate, taking positions on pending legislation, or making its own legislative proposals, the Committee regularly sends email advising of current developments. Updates in 2015 concerned both litigation practice and changes in substantive law that affect business litigation. To be included in our constituency list to receive these updates, please contact Ellen Fenichel at, or Lisa Jacobs at

Privilege. We reported on two important decisions in the area of attorney client privilege. In Anten v. Superior Court, 233 Cal. App. 4th 1254 (2d Dist. 2015), the court held that when joint clients do not sue each other but one of them sues their former attorney, the non-suing client cannot prevent the parties to the lawsuit from discovering or introducing otherwise privileged attorney-client communications made in the course ofthe joint representation. The court emphasized that while communications between one joint client and the attorney are privileged as to third parties, they are not privileged as to the other joint client. It is often not clear to jointly represented clients that their communications with their lawyer cannot be kept secret from the other client(s). That issue should be dealt with in retainer agreements or otherwise at the outset of the engagement to avoid problems down the line.

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