ROTHSCHILD, P. J. —
In a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 786 [99 Cal.Rptr.3d 464] (Dietz); Evid. Code, § 958.)
The present appeal raises the following issue, which lies at the intersection of those rules: When joint clients do not sue each other but one of them sues their former attorney, can the nonsuing client prevent the parties to the lawsuit from discovering or introducing otherwise privileged attorney-client communications made in the course of the joint representation? We answer that question in the negative.
Lewis Anten and Arnold and Lillian Rubin jointly retained Marvin Gelfand and Allan Kirios of the law firm Weintraub Tobin Chediak Coleman Grodin (Weintraub) to advise and represent them on a matter of common interest.
Anten and the Rubins jointly retained the Weintraub lawyers to advise them concerning incorrect tax advice given by their former lawyers (hereafter tax lawyers) and to represent them in the tax audit arising from that advice. The Weintraub lawyers advised Anten and the Rubins that the tax lawyers' error barred the favorable tax treatment they had sought for the sale of their business, and the Weintraub lawyers further advised that the error could not be cured. On the basis of Weintraub's advice, Anten and the Rubins settled with the Internal Revenue Service, paying over $1 million.
The Weintraub lawyers further advised Anten and the Rubins that the tax lawyers had committed malpractice and recommended that Anten and the Rubins sue them. At that time, Anten did not want to sue "but rather sought to pursue resolution by means of settlement." Weintraub subsequently "fired [Anten] as a client" and represented the Rubins in filing suit against the tax lawyers. Anten later filed the instant suit against both the tax lawyers and Weintraub.
In October 2013, Anten moved to compel Weintraub to produce further responses to certain form interrogatories and requests for production of documents. Weintraub opposed the motion on the ground that it could not provide further responses without violating the attorney-client privilege, which the Rubins had expressly declined to waive. On December 12, 2013, the court ordered Weintraub to produce "further responses in the form of documents for which work product privilege is asserted" but ordered that the documents be produced "only to Anten and Rubin." The court granted no other relief. The court's minute order does not address the claim of attorney-client privilege, and the record before us does not contain a transcript of the hearing.
Anten again moved to compel further responses. On June 30, 2014, the court sustained Weintraub's objection based on the Rubins' assertion of the attorney-client privilege. Largely on that basis, the court denied Anten's motion in its entirety.
Anten petitioned this court for a writ of mandate, seeking to overturn the trial court's discovery ruling of June 30, 2014. We issued an order to show cause.
Discovery rulings are reviewed for abuse of discretion. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [101 Cal.Rptr.3d 758, 219 P.3d 736].)
Anten argues that the trial court abused its discretion by sustaining Weintraub's objection based on the Rubins' assertion of the attorney-client privilege and by denying Anten's motion to compel on that basis. We agree. Under section 958, the communications at issue are not privileged in Anten's lawsuit.
Section 958 provides that "[t]here is no privilege under this article [(i.e., no attorney-client privilege)] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship." The rationale for the exception is that "`[i]t would be unjust to permit a client ... to accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge ....' [Citation.]" (Solin v. O'Melveny & Myers (2001) 89 Cal.App.4th 451, 463-464 [107 Cal.Rptr.2d 456]; see Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746 [143 Cal.Rptr. 119] (Glade).) For example, it would be "fundamentally unfair for a client to sue a law firm for the advice obtained and then to seek to forbid the attorney who gave that advice from reciting verbatim, as nearly as memory permits, the words spoken by his accuser during the consultation." (Solin, supra, 89 Cal.App.4th at p. 463.) Similarly, a written fee contract between an attorney and a client is itself a privileged communication (Dietz, supra, 177 Cal.App.4th at p. 786), but it would be unfair to allow the client to invoke the privilege in order to exclude the contract in an action by the attorney for unpaid fees.
The present case falls squarely within the literal terms of section 958. Anten seeks production of communications relevant to issues of breach by Weintraub of duties arising out of the lawyer-client relationship. Thus, under the plain language of section 958, the attorney-client privilege does not apply to those communications. Moreover, although we recognize that, for reasons of public policy, a literalistic application of the statute is not always appropriate (see Schlumberger, supra, 115 Cal.App.3d at pp. 392-393; Glade, supra, 76 Cal.App.3d at pp. 746-747), here both the plain language of the statute and policy considerations lead to the same result.
Second, considerations of fundamental fairness that are similar to those underlying section 958 as a whole weigh strongly in favor of applying the statute in this context. For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney's suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client's suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial — indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client.
The petition is granted. Let a peremptory writ of mandate issue directing the superior court to vacate its order of June 30, 2014, denying Anten's motion to compel further responses, and enter a new order granting the motion. Petitioner shall recover his costs of this writ proceeding.
Johnson, J., and Miller, J.,