In City of San Diego v. Superior Court (Hoover), published December 19, 2018, the Fourth District Court of Appeal, Division 1 issued a writ vacating a trial court order disqualifying a city attorney's office from defending the city in an employment lawsuit. The real party in interest, a police detective, sued the city, her employer, alleging harassment and retaliation. While that suit was pending, the attorney representing her in that lawsuit filed another suit against the city for another client, alleging the city failed to properly investigate a sexual assault and then covered the suit up. An Internet news service referred to a police report that the service had obtained. Internal Affairs investigated to determine if and how the news service had obtained a confidential police report. IA interviewed the detective to see if she was the source of the leak. She was warned failure to answer could be treated as insubordination, punishable by termination. She admitted accessing the report. She was asked about her communications with her attorney. Her union representative objected based on attorney-client privilege. The detective started answering. The rep again objected and advised the officer not to answer. The investigators stopped asking about the communications. Later that day, one of the investigators contacted the detective and told her the city attorney's office had concluded the privilege did not preclude questions about the detective's communications with her attorney as they related to the leaked police report. She was ordered to return for a follow-up interview in eight days. The attorney learned of the interviews, and threatened to move to disqualify the city attorney if the city asked the detective about their communications. At the follow-up interview, the detective had an attorney provided by the police officers' association, and an attorney from the city attorney's office was present. The detective said she learned of the second lawsuit from her attorney's group text message, and then called him on the teslphone about a different issue. She admitted printing out the police report regarding the second case out of curiosity, and stated she then shredded it. The investigators pressed the detective for details of what information the detective's attorney provided during their phone conversation. The deputy city attorney asked whether the second case's allegations were encompassed in the detective's case. After the interview, the trial court granted the motion to disqualify the city attorney in the detective's harassment and retaliation action, on the grounds that the IA interview violated the attorney-client privilege and Rule 2-100 of the Professional Rules of Conduct, barring a lawyer from contacting a litigant known to be represented by counsel.
The appellate court agreed with the trial court that forcing the detective to divulge the contents of her conversation with her attorney violated the attorney-client privilege. While the contents of the group text were not confidential communications and were not privileged, the detective's subsequent phone conversation with her attorney was protected. The city erred by failing to apply ex parte to the court in the detective's lawsuit for a determination of whether the communications were protected by attorney-client privilege before resuming the interview and forcing the detective to speak about the attorney-client communications. The appellate court also agreed that the Rules of Professional Conduct precluded the deputy city attorney from directly questioning the detective during the interview about matters concerning her lawsuit, without her attorney present and without that attorney's consent. The deputy should have confined his participation in the meeting to advising the investigators. But the appellate court, after reviewing the sealed transcript of the interview, concluded there was no reasonable likelihood that the misconduct would give the city an unfair advantage in the detective's suit. Since attorney disqualification must be prophylactic rather than punitive, and disqualifying an entire city attorney's office should be done with caution, the disqualification order was reversed.
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