If You Receive Information Which Could Be Opposing Parties’ Attorney-Client Communication, Stop Reading

In 2018, the California Supreme Court approved Rule 4.4 of the California Rules of Professional Conduct providing: 

Where it is reasonably apparent to a lawyer who receives a writing relating to a lawyer’s representation of a client that the writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall:

(a) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and

(b) promptly notify the sender.

Over a decade before that, the Supreme Court codified this rule based on State Comp. Ins. Fund v. WPS (1999) 70 Cal.App.4th 644-the “State Fund rule”- describing the rule as “an objective standard” that asks “whether reasonably competent counsel, knowing the circumstances of the litigation, would have concluded the materials were privileged, how much review was reasonably necessary to draw that conclusion, and when counsel’s examination should have ended.” (Johnson v. Department of Transportation (2025) 109 Cal.App.5th 917, 330 Cal.Rptr.3d 811, 834 (“Johnson”) quoting Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 818.) 

As an appellate court confirmed recently, failure to comply with this rule continues to result in significant consequences for litigants including disqualification of their counsel and experts after 5 years of litigation. (Johnson, supra, at *824.)  In Johnson, Christian L. Johnson sued his employer, California Department of Transportation (Caltrans), asserting labor claims and while the suit was pending, Brown, an attorney for Caltrans, sent an email to Nicolas Duncan, who was Johnson’s supervisor at the time and not a named party in the litigation. The email was marked confidential and attorney-client privileged. For unknown reasons, Duncan took a photograph of the email and sent it to Johnson, who gave it to his attorney, Shepardson.

The next day, Shepardson emailed Caltrans’ counsel, Christopher Sims, and informed him of Shepardson’s possession of the email. Shepardson asserted that there had been an intentional disclosure that waived any privilege. Several hours later, Sims responded in an email stating that Brown’s email was privileged, demanding that Shepardson maintain confidentiality. Shepardson responded by requesting authority supporting Sims’ position and was provided with authority including Rule 4.4.  

The disqualified counsel argued, like counsel in decades of prior decisions, that the email he received was not privileged in the first instance, was excepted under the crime-fraud exception, and/or any privilege had been waived. Like prior decisions, the appellate court upheld the trial court’s disqualification of Johnson’s attorney and the three expert witnesses who had all received the privileged email.  

In other words, Plaintiff must find new counsel and new experts to continue the litigation following 5 years of litigation and 35 depositions. And all this expense and inconvenience arises because his counsel did not stop reading the communication between the opposing counsel and a Caltrans manager, but instead gave it to his experts after Caltrans counsel expressly advised it was privileged.   

This could have been easily avoided. Over two decades, California courts have made clear that counsel cannot make the determination that an opposing party/counsel’s communication is or is not privileged. Again, this was codified in the Rules of Professional Conduct governing the State’s Attorneys seven years ago. As the recent decision confirms, the client’s best interests are not served by zealously litigating an opposing parties’ communication with its attorney. Rather, refraining from reviewing the document in compliance with Rule 4.4 is the only way to serve the client’s best interest.