In a 2–1 decision, a California appellate court upheld a trial court’s disqualification of a law firm after one of its lawyers decided not to return an adversary’s privileged email and to use it offensively before obtaining a court order allowing him to do so. The court issued the ruling even though the lawyer received the privileged email from his client—not opposing counsel—and it facially appeared that the opposing party had waived the privilege by forwarding to a third-party. McDermott Will & Emery LLP v. Superior Court, 217 Cal. Rptr. 3d 47 (Ct. App. 2017). You may read this lengthy—but instructive—opinion here.
Client Sends Privileged Email to Third-Party
The facts are a bit convoluted, so I’ll try to simplify. Dick Hausman, the 80 year-old son-in-law of Allergan Pharmaceuticals’ founder, was the president of a holding company that managed the family’s investment portfolio. The McDermott firm represented the holding company. Mr. Hausman’s son, Rick Hausman, later became president and “a struggle for control” of the holding company ensued. Dick Hausman retained lawyer Mark Blaskey to represent him in these disagreements.