Holder of Work Product Privilege – Lawyer or Law Firm?

On June 21, 2017, in Tucker Ellis LLP v. Superior Court (Nelson), the First District Court of Appeal held that a law firm, and not an individual lawyer, controls attorney work product.  Attorney Nelson created documents which were subject to protection under Code of Civil Procedure § 2018.030 while employed at Tucker Ellis, LLP.  After Nelson left Tucker Ellis, the firm responded to a third party subpoena, ultimately producing the documents created by Nelson without first seeking Nelson’s permission.  Nelson sued Tucker Ellis, arguing that the documents were his thoughts, impressions, and conclusions, and thus that he alone, not the law firm was the holder of the privilege.  The Court of Appeal disagreed and held that the law firm was not required to seek the attorney’s permission. 

In support of its holding, the Court reasoned that the client on behalf of whom the work was performed was a firm client, not Nelson’s directly.  Moreover, while conceding that in this instance only Nelson’s thoughts and impressions were recorded, the Court noted that often that would not be the case, and that many lawyers would collaborate on a project.  It would be unfeasible to seek permission from all former lawyers who may have rights to waive work product.  The Court also noted that its holding was particularly applicable where the client was a firm client, and thus the firm would be in the best position to determine any potential harm to the client from production.

The Court of Appeal stressed that its opinion was narrow, and limited to the facts before it.  It did, however, reject a narrower basis for the holding, that Nelson’s employment agreement, as a non-capital partner at Tucker Ellis, meant that the documents were owned by Tucker Ellis pursuant to Labor Code 2860.  Although the opinion stressed the narrow nature of the holding and forms of law firm organization vary, it is difficult to conceive of a situation in which, following the opinion, work product would be deemed owned by the lawyer, and not the law firm, even if the lawyer were a full equity partner.  Perhaps a distinguishing factor in a future case could be where the client went with the former attorney and the prior law firm merely was a custodian of files from the period in which the departed lawyer was at the prior firm. Still, the reasoning of the Court of Appeal in this case, one which is both practical and considers the interest of the client, would seem to apply.