Filed 2/10/15; unmodified opn. attached 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

LEWIS ANTEN, 

 Petitioner, 

 v. 

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY, 

 Respondent; 

WEINTRAUB TOBIN CHEDIAK 

COLEMAN GRODIN LAW 

CORPORATION, 

 Real Party in Interest. 

 B258437 

 (Los Angeles County 

 Super. Ct. No. BC496527) 

THE COURT: 

It is ordered that the opinion filed herein on January 30, 2015, be modified in the 

following manner: 

On page 8, the Disposition is deleted and replaced with the following paragraph: 

The petition is granted. Let a peremptory writ of mandate issue directing the 

superior court to vacate its order of June 30, 2014, denying Anten’s motion to compel 

further responses, and enter a new order granting the motion. Petitioner shall recover his 

costs of this writ proceeding. 
This modification constitutes a change in the judgment. 

CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J. JOHNSON , J. MILLER, J.

 



 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution. 
Filed 1/30/15; unmodified opn. 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

LEWIS ANTEN, 

 Petitioner, 

 v. 

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY, 

 Respondent; 

WEINTRAUB TOBIN CHEDIAK 

COLEMAN GRODIN, LAW 

CORPORATION, 

 Real Party in Interest. 

 B258437 

 (Los Angeles County 

 Super. Ct. No. BC496527) 

 ORIGINAL PROCEEDINGS; petition for writ of mandate. Elizabeth Allen 

White, Judge. Petition granted. 

Parker Mills, David B. Parker, and William K. Mills for Petitioner. 

 No appearance for Respondent. 

 Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, 

Joel E. Boxer, Mark T. Drooks, and David H. Chao for Real Party in Interest. 

_______________________________________________ 
2

 In a lawsuit between an attorney and a client based on an alleged breach of a 

duty arising from the attorney-client relationship, attorney-client communications 

relevant to the breach are not protected by the attorney-client privilege. (Dietz v. 

Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 786 (Dietz); Evid. Code, § 958.)1

 

Also, if multiple clients retain or consult with an attorney on a matter of common interest 

and the joint clients later sue each other, then the communications between either client 

and the attorney made in the course of that relationship are not privileged in the suit 

between the clients. (Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1294 (Zador); 

§ 962.) But in general, one joint client cannot waive the attorney-client privilege 

for another joint client. (American Mut. Liab. Ins. Co. v. Superior Court (1974) 

38 Cal.App.3d 579, 595.) 

 The present appeal raises the following issue, which lies at the intersection of 

those rules: When joint clients do not sue each other but one of them sues their former 

attorney, can the nonsuing client prevent the parties to the lawsuit from discovering or 

introducing otherwise privileged attorney-client communications made in the course of 

the joint representation? We answer that question in the negative. 

 Lewis Anten and Arnold and Lillian Rubin jointly retained Marvin Gelfand and 

Allan Kirios of the law firm Weintraub Tobin Chediak Coleman Grodin (Weintraub) to 

advise and represent them on a matter of common interest.2 This writ proceeding arises 

from Anten’s malpractice action against those lawyers concerning that representation. In 

response to discovery propounded by Anten, the lawyers objected that Anten’s discovery 

sought communications between the lawyers and the Rubins that were protected by the 

attorney-client privilege, which the Rubins expressly declined to waive. Anten moved to 

 1

 All subsequent statutory references are to the Evidence Code. 

2

 When Gelfand and Kirios were originally retained, they were with the firm 

Weissmann Wolff Bergman Coleman Grodin & Evall LLP, Weintraub’s predecessor. 

Because any distinction between Weintraub and its predecessor is irrelevant to our 

analysis, for simplicity we refer to both as Weintraub. 
3

compel further responses, and the superior court denied the motion on the basis of the 

attorney-client privilege objection. 

 Anten petitioned for writ relief, and we grant the petition. In a lawsuit between 

the attorney and one or more of the attorney’s joint clients, based on an alleged breach of 

a duty arising from the attorney-client relationship, relevant communications between the 

attorney and any of the joint clients, made in the course of the attorney-joint-client 

relationship, are not privileged. 

BACKGROUND3

 Anten and the Rubins jointly retained the Weintraub lawyers to advise them 

concerning incorrect tax advice given by their former lawyers (hereafter tax lawyers) 

and to represent them in the tax audit arising from that advice. The Weintraub lawyers 

advised Anten and the Rubins that the tax lawyers’ error barred the favorable tax 

treatment they had sought for the sale of their business, and the Weintraub lawyers 

further advised that the error could not be cured. On the basis of Weintraub’s advice, 

Anten and the Rubins settled with the Internal Revenue Service, paying over $1,000,000. 

 The Weintraub lawyers further advised Anten and the Rubins that the tax lawyers 

had committed malpractice and recommended that Anten and the Rubins sue them. At 

that time, Anten did not want to sue “but rather sought to pursue resolution by means of 

settlement.” Weintraub subsequently “fired [Anten] as a client” and represented the 

Rubins in filing suit against the tax lawyers. Anten later filed the instant suit against both 

the tax lawyers and Weintraub. 

 In October 2013, Anten moved to compel Weintraub to produce further 

responses to certain form interrogatories and requests for production of documents. 

Weintraub opposed the motion on the ground that it could not provide further responses 

 3

 Our summary of the factual background is drawn from the pleadings and other 

documents included in the exhibits to the petition. Nothing in this opinion should be 

construed as a resolution of a disputed issue of fact or as a determination that certain facts 

are undisputed. 
4

without violating the attorney-client privilege, which the Rubins had expressly declined 

to waive. On December 12, 2013, the court ordered Weintraub to produce “further 

responses in the form of documents for which work product privilege is asserted” but 

ordered that the documents be produced “only to Anten and Rubin.” The court granted 

no other relief. The court’s minute order does not address the claim of attorney-client 

privilege, and the record before us does not contain a transcript of the hearing. 

 In late December 2013, Anten served additional discovery on Weintraub. 

Weintraub objected on multiple grounds including the Rubins’ assertion of the 

attorney-client privilege. 

 Anten again moved to compel further responses. On June 30, 2014, the court 

sustained Weintaub’s objection based on the Rubins’ assertion of the attorney-client 

privilege. Largely on that basis, the court denied Anten’s motion in its entirety. 

 Anten petitioned this court for a writ of mandate, seeking to overturn the trial 

court’s discovery ruling of June 30, 2014. We issued an order to show cause. 

DISCUSSION 

 Discovery rulings are reviewed for abuse of discretion. (Costco Wholesale Corp. 

v. Superior Court (2009) 47 Cal.4th 725, 733.) 

 Anten argues that the trial court abused its discretion by sustaining Weintraub’s 

objection based on the Rubins’ assertion of the attorney-client privilege and by 

denying Anten’s motion to compel on that basis. We agree. Under section 958, the 

communications at issue are not privileged in Anten’s lawsuit. 

 Section 958 provides that “[t]here is no privilege under this article [i.e., no 

attorney-client privilege] as to a communication relevant to an issue of breach, by the 

lawyer or by the client, of a duty arising out of the lawyer-client relationship.” The 

rationale for the exception is that “‘[i]t would be unjust to permit a client . . . to accuse 

his attorney of a breach of duty and to invoke the privilege to prevent the attorney from 

bringing forth evidence in defense of the charge . . . .’ [Citation.]” (Solin v. O’Melveny 

& Myers (2001) 89 Cal.App.4th 451, 463-464; see also Glade v. Superior Court (1978) 

76 Cal.App.3d 738, 746 (Glade).) For example, it would be “fundamentally unfair for a 
5

client to sue a law firm for the advice obtained and then to seek to forbid the attorney 

who gave that advice from reciting verbatim, as nearly as memory permits, the words 

spoken by his accuser during the consultation.” (Solin, supra, 89 Cal.App.4th at p. 463.) 

Similarly, a written fee contract between an attorney and a client is itself a privileged 

communication (Dietz, supra, 177 Cal.App.4th at p. 786), but it would be unfair to allow 

the client to invoke the privilege in order to exclude the contract in an action by the 

attorney for unpaid fees. 

 The wording of section 958 is broad, but case law has clarified that the exception 

is limited to communications between the lawyer charging or charged with a breach 

of duty, on the one hand, and the client charging or charged with a breach of duty, 

on the other. (See Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 

386, 392-393 (Schlumberger); Glade, supra, 76 Cal.App.3d at pp. 746-747.) Thus, a 

legal malpractice defendant cannot invoke the exception in order to permit discovery 

of communications between the plaintiff and the attorney who represents the plaintiff 

in the malpractice action. (Schlumberger, supra, 115 Cal.App.3d at pp. 392-393.) 

Likewise, a legal malpractice plaintiff cannot invoke the exception in order to permit 

discovery of communications between the defendant attorney “and other clients of his 

not privy to the relationship between” the defendant and the plaintiff. (Glade, supra, 

76 Cal.App.3d at pp. 746-747.) But there is no case law addressing the scenario 

presented in the instant case, in which one joint client charges the attorney with a breach 

of duty, but other joint clients do not. 

 The present case falls squarely within the literal terms of section 958. Anten seeks 

production of communications relevant to issues of breach by Weintraub of duties arising 

out of the lawyer-client relationship. Thus, under the plain language of section 958, the 

attorney-client privilege does not apply to those communications. Moreover, although 

we recognize that, for reasons of public policy, a literalistic application of the statute is 

not always appropriate (see Schlumberger, supra, 115 Cal.App.3d at pp. 392-393; Glade, 

supra, 76 Cal.App.3d at pp. 746-747), here both the plain language of the statute and 

policy considerations lead to the same result. 
6

 First, because Anten and the Rubins were joint clients of Weintraub, the Rubins’ 

communications with Weintraub were not confidential as to Anten.4

 “[I]n a joint 

client situation, confidences are necessarily disclosed.” (Zador, supra, 31 Cal.App.4th 

1285, 1294.) Consequently, “communications made by parties united in a common 

interest to their joint or common counsel, while privileged against strangers, are not 

privileged as between such parties nor as between their counsel and any of them, when 

later they assume adverse positions.” (Croce v. Superior Court (1937) 21 Cal.App.2d 

18, 20 (Croce); see also Clyne v. Brock (1947) 82 Cal.App.2d 958, 965; Morris v. 

Moran (1960) 179 Cal.App.2d 463, 469; Petty v. Superior Court (1953) 116 Cal.App.2d 

20, 29-30.)5

 Weintraub’s joint representation of Anten and the Rubins, with their 

knowledge and consent and on a matter of common interest, thus distinguishes this 

case from Glade, which declined to apply section 958 to communications between 

the defendant attorney and other, unrelated clients. (See Glade, supra, 76 Cal.App.3d 

at pp. 746-747.) In Glade, the communications at issue were privileged as to the very 

plaintiffs who were seeking their disclosure. Here, in contrast, the communications at 

issue are not confidential as to Anten.6

 4

 “Case law has established that joint clients are two or more persons who have 

retained one attorney on a matter of common interest to all of them . . . .” (Roush v. 

Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 223.) At present, no party denies 

that Anten and the Rubins were joint clients of Weintraub, having jointly retained the 

Weintraub attorneys on a matter of common interest. 

5

Croce, supra, was primarily about attorney disqualification, and subsequent case 

law has questioned Croce’s holding on that issue. (See Fiduciary Trust Internat. of 

California v. Superior Court (2013) 218 Cal.App.4th 465, 482-485.) But no case casts 

doubt on the rules articulated in Croce concerning the confidentiality of attorney-client 

communications in the context of joint representation. 

6

 Because the communications at issue are not confidential as to Anten, they also 

are not privileged as to Anten, because the attorney-client privilege applies only to 

confidential communications. (See §§ 952, 954.) That conclusion does not resolve the 

dispute in this case, however, because those communications would still be inadmissible 
7

 Second, considerations of fundamental fairness that are similar to those underlying 

section 958 as a whole weigh strongly in favor of applying the statute in this context. For 

example, if one of two joint clients breached an attorney fee agreement but the other joint 

client did not, and the attorney sued the breaching client, then it would be unjust to allow 

the nonbreaching client to thwart the attorney’s suit by invoking the privilege to prevent 

introduction of the fee agreement itself. Moreover, the risk of collusion between the joint 

clients would be substantial. Similarly, if an attorney breached a duty to one of two 

joint clients but breached no duties to the other, and the wronged client sued the attorney, 

then it would be unjust to allow the nonsuing client to thwart the other client’s suit by 

invoking the privilege to prevent introduction of relevant attorney-client communications 

made in the course of the joint representation. Again, the risk of collusion between 

the attorney and the nonsuing client would be substantial—indeed, the risk would be 

particularly significant if the alleged breach were that the attorney had favored the 

interests of the nonsuing client over those of the suing client. 

 For all of these reasons, we conclude that section 958 prohibits the Rubins (and 

Weintraub on behalf of the Rubins) from invoking the attorney-client privilege in Anten’s 

lawsuit against Weintraub with respect to relevant attorney-client communications made 

in the course of the joint representation. Because Weintraub’s opposition to Anten’s 

motion to compel was based entirely on the attorney-client privilege, it was an abuse of 

discretion to deny Anten’s motion to compel. We accordingly grant the petition and 

direct the court to grant Anten’s motion. 

 

at trial if they were privileged as to third parties (i.e., parties other than Anten, the 

Rubins, and Weintraub). 
8

DISPOSITION 

 The petition is granted. The superior court’s order of June 30, 2014, denying 

Anten’s motion to compel further responses, is vacated, and the superior court is directed 

to enter a new and different order granting the motion. Petitioner shall recover his costs 

of this writ proceeding. 

 CERTIFIED FOR PUBLICATION. 

 ROTHSCHILD, P. J. 

We concur: 

 JOHNSON, J. 

 MILLER, J.

 



 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.