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Deponent Need Not Discuss Lawyer’s Referral of Her to a Particular Doctor, C.A. Holds
Opinion Says Inquiry Intrudes Upon Lawyer-Client Privilege; Writ Granted Vacating Order to Disclose, Pay Sanctions
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal yesterday granted a petition for a writ of mandate commanding the San Bernardino Superior Court to vacate its order that a plaintiff in a personal injury action divulge in discovery whether her attorneys directed her to a particular doctor to seek treatment.
The order by Judge Stephanie Tanada to make the disclosure runs afoul of the attorney-client privilege, Justice Frank J. Menetrez said in an unpublished opinion. Menetrez’s opinion also requires that the lower court vacate an award of a $1,819.50 sanction to the defendant, the County of San Bernardino.
That county was sued by Talisha Thompson based on injuries she incurred in a traffic accident, Driving the other car was a San Bernardino County sheriff’s deputy.
Thompson was asked in a deposition as to whether there was a referral by her attorneys to a physician. An objection was made and she did not answer.
She need not do so, Menetrez concluded.
He said that if a lawyer advised Thompson to see a specified medical provider, “because the provider would agree, for example, to treat petitioner under a lien agreement,” this would have been in the context of preparing for anticipated litigation. The justice wrote:
“Advice provided by an attorney in contemplation of threatened litigation has been found to be protected by the attorney-client privilege….The privilege has been found to cover legal advice even when no litigation is threatened….Such advice from attorney to client within the context of representation is distinguishable from other circumstances in which attorney-client privilege has been found not to apply.”
2021 Decision Cited
In the Superior Court, the county—which did not file an appellate brief—relied upon the 2021 decision by Div. Eight of this district’s Court of Appeal in Qaadir v. Figueroa, authored by Los Angeles Superior Court Judge Sam Ohta, sitting on assignment. Ohta said that whether the plaintiff’s lawyer had sent the client to a particular doctor could have relevance, explaining:
“[T]he referral evidence was relevant to the question of the reasonable value of the lien-physicians’ medical care because it may show bias or financial incentives on the part of the lien-physicians. If a lien-physician wants future referrals from a lawyer and understands that the lawyer benefits from inflating a client’s medical bills, that incentive might encourage the lien-physician to inflate its current bill to please the lawyer and win future referrals.”
He wrote that Los Angeles Superior Court Judge Daniel Murphy “never ascertained the relevance of defense counsel’s questions by either granting a side bar conference, or, permitting defense counsel at a recess to proffer its relevance” and that “[t]his was error.” However, Ohta found, the defendants had not shown that error to be prejudicial.
Menetrez said in yesterday’s opinion:
“The Qaadir case contains no discussion of the attorney-client privilege or whether it applies to an attorney referral to a medical provider.”
Supreme Court Precedent
He continued:
“In their moving papers below, real parties argued, without addressing the privilege, that the Qaadir holding requires a plaintiff to disclose whether her counsel advised her to seek a particular medical provider, because the information is relevant to the reasonableness of the physician’s lien-based billing. Such a broad reading of Qaadir cannot be squared with established California precedent….”
The justice quoted the California Supreme Court’s 2009 decision in Costco Wholesale Corp. v. Superior Court as saying that the attorney-client privilege “is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (The court in Costco was quoting the 1977 opinion by this district’s Court of Appeal in Gordon v. Superior Court.)
Menetrez declared:
“Thus, it appears petitioner has stated a prima facie claim of privilege, and real parties have not demonstrated the communication was not confidential or that the privilege does not otherwise apply.”
The case is Thompson v. Superior Court (County of San Bernardino), E085018.
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