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Court of Appeal:
Eve-of-Trial Disqualification of Lawyer, Experts Was Proper
By a MetNews Staff Writer
The Third District Court of Appeal yesterday affirmed an order made one court day before a jury trial was scheduled to commence disqualifying the plaintiff’s lawyer, as well as his three expert witnesses, based on their intent to introduce evidence of an email sent by a lawyer for the defendant which had been marked “confidential” but which was asserted to be evidence relevant to the allegations of wrongdoing.
Suing the California Department of Transportation (“CalTrans”) is Christian L. Johnson. He claims he “was sexually battered and racially harassed” by a CalTrans employee.
The email in question was sent on Jan. 10, 2022, by Paul Ramon Brown, an attorney for Caltrans, to Johnson’s supervisor, Nicholas Duncan. The content of the email is not part of the record but it was allegedly of a defamatory nature.
Duncan sent a photograph of the email to Johnson, who forwarded it to his attorney, John A. Shepardson, a former president of the Santa Clara County Trial Lawyers Association. CalTrans insisted the email was covered by the attorney-client privilege and demanded that no use be made; Shepardson insisted it had caused emotional harm to his client, and supplied a copy to three persons, including Johnson’s clinical psychologist, Bennett Williamson, whom he intended to call as expert witnesses.
Lawyer’s Explanation
In one email to a lawyer for CalTrans, sent Jan. 12, 2022, Shepardson said:
“Because the email has damaged and triggered Christian emotionally, naturally he provided the email to Dr. Williamson so that he could fairly evaluate Christian’s psychological condition. To withhold the damaging document may have resulted in seriously flawed results and even a finding that Christian was engaging in lying or misleading conduct.”
Williamson said in a declaration that “[i]t would be difficult, and perhaps impossible, to give testimony about [Johnson’s] psychological harm...without consideration of the damaging email.”
On Jan, 3, 2023, San Joaquin Superior Court Judge Barbara A. Kronlund held that the email was a protected attorney-client communication and issued a protective order barring its use at trial. Shepardson resisted complying, and on Gronlund Aug. 24, 2023, the judge vacated the trial date and banished Shepardson and the experts from the case.
Contentions on Appeal
Shepardson protested in the appellant’s opening brief that his client is unduly prejudiced, arguing:
“Christian’s attorney nows [sic] the case inside and out. He attended all the depositions, the mediation, and settlement conference. He has the unique knowledge, expertise and skill to prevail against CalTrans in the Stockton Courthouse.”
He maintained:
“[E]xtreme prejudice was established when three retained experts were barred one day before the court trial after 4.5 years of litigation….Denial of experts gutted Christian’s case.”
The lawyer argued that the email did not constitute a protected communication because it contains no legal advice.
Feinberg’s Opinion
In an opinion by Justice Aimee Feinberg, the Third District upheld the order, saying:
“[T]he record supports the trial court’s conclusion that Shepardson breached his ethical obligations by using and disseminating the Brown email. We further conclude that the trial court acted well within its discretion in determining that this conduct, and the resulting risk of harm to Caltrans and the integrity of the proceedings, warranted disqualification.”
Feinberg quoted the 1997 Court of Appeal decision by this district’s Div. Four in State Farm Fire & Casualty Co. v. Superior Court as saying:
“When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders or other judicial intervention as may be justified.”
That view, she noted, was embraced by the California Supreme Court in its 2007 decision in Rico v. Mitsubishi Motors Corp.
Prejudice to Plaintiff
Acknowledging that Johnson is harmed by Kronlund’s ruling, she said:
“Disqualification of a party’s chosen counsel may impose hardships on the party, who must then seek new counsel in an already pending case. But a party’s choice of counsel may be outweighed by a court’s overarching duty to preserve the integrity of the judicial process, through both compliance with ethical rales and the maintenance of public confidence in the proceedings.”
The justice continued:
“In this case, Shepardson’s failure to comply with his ethical duties through his continued use of confidential material created a substantial risk of undue prejudice and risked undermining the integrity of the proceedings. We therefore have little difficulty in concluding the trial court did not abuse its discretion when it disqualified him.”
Rejecting Shepardson’s contention that the email is not covered by the attorney-client privilege, Feinberg pointed out that Brown is a lawyer for Cal Trans, he sent the email seeking information for use in defending against Johnson’s claim, and he marked the email confidential. This, she said, made out a prima facie case for confidentiality, and Kronlund’s factual finding that the purpose of the communication was legitimate, with no ulterior purpose, requires the conclusion that Johnson did not satisfy his burden of showing a lack of privilege.
The case is Johnson v. Department of Transportation, C099319.
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