1

Filed 11/5/21 Providence Industries v. Lularoe CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

PROVIDENCE INDUSTRIES, LLC.,

Plaintiff, Cross-Defendant and 

Respondent,

v.

LULAROE, LLC, et al.,

Defendants, Cross-Complainants

and Appellants.

E075513

(Super.Ct.No. RIC1825263)

OPINION

APPEAL from the Superior Court of Riverside County. Jackson Lucky, Judge. 

Affirmed.

Rutan & Tucker, Alejandro S. Angulo, Bradley A. Chapin, Kathryn D.Z. Domin, 

and Ashley Vernick, for Defendants, Cross-Complainants and Appellants.

Reed Smith, Marsha A. Houston, Christopher O. Rivas, and Kasey J. Curtis, for 

Plaintiff, Cross-Defendant and Respondent.

Plaintiff and respondent Providence Industries, LLC. (Providence) and defendants 

and appellants LuLaRoe, LLC and LLR, Inc. (collectively, LuLaRoe) are engaged in civil 
2

litigation arising from business disputes. During the litigation, an employee of 

LuLaRoe’s outside counsel, acting anonymously and without authorization, sent certain

documents to Providence’s outside counsel. After a series of hearings regarding whether 

LuLaRoe had adequately demonstrated that the documents were privileged, the trial court 

entered an order requiring, among other things, that Providence’s counsel return the 

documents and that any copies be destroyed.

At issue here is LuLaRoe’s subsequent motion to disqualify Providence’s counsel. 

The trial court denied the motion, explaining in a written ruling that Providence’s counsel

had complied with their duties regarding inadvertently disclosed privileged documents 

under State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 (State 

Fund) and Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 (Rico). We find that 

the trial court did not abuse its discretion by its ruling, and therefore affirm.

I. FACTS

Providence’s initial complaint in this matter was filed in November 2018. The 

case garnered some degree of public attention, including news stories and discussion on 

various public websites. 

On September 19, 2019, outside counsel for Providence, Reed Smith, LLP (Reed 

Smith) received an anonymous letter relating to the litigation. The letter was processed 

in the usual manner for incoming mail correspondence in the matter; it was scanned by a 

secretary, saved to the electronic client file, and distributed by email to the litigation team 

and Providence’s in-house general counsel. 
3

A Reed Smith lawyer representing Providence, Marsha Houston, skimmed the 

letter and became concerned that “it appeared to possibly contain a page of confidential 

material that was not public.” She expressed her concern to another attorney on the 

litigation team, Chris Rivas. Rivas, too, skimmed the document, and he agreed with 

Houston that it might contain confidential material. Rivas and Houston recognized that 

the document appeared to be from the same source as three other anonymous 

communications received within the previous month. Those earlier communications had 

not appeared to Houston or Rivas to contain anything confidential. Rather, they appeared 

to be “the musings of a disgruntled person who was following the case.”1 Houston and 

Rivas had not found the earlier anonymous communications notable, due to the relatively 

public nature of Providence’s dispute with LuLaRoe, which had generated other instances 

where nonparties had contacted them about the case.

More specifically, the four documents consisted of a total of five pages. The first

of the documents that Reed Smith received was a one-page printout of an email with 

handwritten notes on it. The email was sent by Providence’s in-house counsel to 

LuLaRoe’s outside counsel and a non-attorney employee of LuLaRoe, and copied to 

another individual that our record does not identify (apparently a non-attorney employee 

1

Neither the trial court nor this court directly reviewed the documents at issue, as 

they were not made part of the record. The evidence of the contents of the documents 

consists entirely of attorney declarations.
4

of Providence).2 The next two documents were single-page typewritten letters, sent 

anonymously. The fourth document included another one-page typewritten letter, as well 

as a one-page attachment that contained the information that caught the Reed Smith 

attorneys’ attention as potentially confidential.

“Within days” after September 19, 2019, Houston and Rivas consulted with Reed 

Smith’s in-house counsel, as well as the California State Bar’s ethics hotline. The state 

bar attorney suggested that they disclose the document containing potentially confidential 

information to opposing counsel. “In an abundance of caution,” however, the Reed 

Smith attorneys decided to disclose all of the anonymously received documents.

On September 25, 2019, a copy of the September 19, 2019 communication (but 

not the other documents) was shared with two associated attorneys in a separate, but 

related matter. Our use of the passive voice here is intentional—the record does not 

reveal who distributed the document to those attorneys.

3

 

2

In LuLaRoe’s later-created privilege log, the document is described as 

containing handwritten notes on a printout of an email sent by a person who is in-house 

counsel for Providence. The log shows the email was sent to an attorney at Floratos, 

Loll, and Devine, PLC (Floratos Loll) who serves as “outside general counsel” to 

LuLaRoe, as well as to LuLaRoe’s Chief Financial Officer. The log identifies the 

Floratos Loll attorney as the author of the handwritten notes. The log also shows the 

email was copied to another individual not identified in our record; we infer that he is 

most likely a non-attorney employee of Providence, perhaps a financial officer.

3

Houston and Rivas’s declarations do not discuss this distribution of the 

document, and nothing else in the record establishes who made the September 25, 2019 

distribution to the associated attorneys. Reed Smith’s “Report Regarding Destruction of 

Documents” states only that the document “was provided” to those attorneys on 

September 25, 2019, and that Reed Smith “confirmed” that the receiving attorneys had 

“each deleted the electronic copies . . . from their respective Microsoft Outlook inboxes.”
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In a September 30, 2019 letter to Alex Angulo, counsel for LuLaRoe, Rivas

disclosed Reed Smith’s receipt of all four documents, provided copies, and expressed 

concern that the most recently received document might contain confidential 

information.4 Rivas stated that Reed Smith had not “carefully reviewed” any of the 

documents, but observed that none of them “appear to be privileged.” Rivas demanded 

that, if LuLaRoe was going to claim privilege, Angulo “provide sufficient information for 

the Court to determine” whether a privilege applied. Rivas expressly disclaimed any 

“waiver of any of Plaintiff’s rights or remedies,” and stated that “Plaintiff does not 

concede that any of the materials . . . are privileged or confidential,” explaining that the 

materials were being provided “because Plaintiff may use the most recent communication 

in discovery” and “in the interests of full disclosure and after having consulted with the 

state bar ethics hotline regarding this unusual circumstance.” 

In a responding letter sent October 1, 2019, Angulo asserted that the privileged 

nature of the documents was “obvious” upon even “a cursory review,” and demanded, 

among other things, that the documents be returned and all copies be destroyed. Rivas

4

LuLaRoe’s counsel included both Rutan & Tucker, LLP (Rutan) and Floratos 

Loll. Angulo is an attorney at Rutan. The source of the documents at issue was 

eventually determined to be a legal secretary at Floratos Loll, who had acted without 

authorization.

Rivas’s September 30, 2019 letter to Angulo stated that the most recent 

anonymous “communication” had “enclosed a list of what purports to be a summary of 

distributions and transfers that may be salient to the Plaintiff’s fraudulent transfer 

claims.” In their declarations submitted in opposition to LuLaRoe’s motion to disqualify, 

Rivas and Houston averred that they could not recall any specifics regarding the contents 

of any of the four documents, and Rivas averred that he could not “even recall what the 

information was.”
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replied the next day, declining Angulo’s demands absent “sufficient factual information” 

to evaluate whether the documents were “actually privileged,” and again stating that the 

documents did not appear to privileged from the “very cursory review” Reed Smith 

attorneys had conducted. Motion practice ensued. 

Initially, the trial court agreed with Providence, denying LuLaRoe’s ex parte 

application for an order requiring compliance with the demands asserted in Angulo’s 

October 1, 2019 letter due to a lack of evidence that the documents were privileged. The 

trial court also found lacking LuLaRoe’s evidence in support of a noticed motion seeking 

the same relief. After a continuance to allow LuLaRoe to provide supplemental attorney 

declarations, however, Providence and the trial court were both satisfied with LuLaRoe’s 

showing.5 On December 18, 2019, the court granted LuLaRoe’s motion and entered an 

order requiring, among other things, that Providence and Reed Smith return the “claimed 

privileged information” and destroy all copies. They complied with the order and

confirmed that originals had been returned and any copies held by Providence, Reed 

Smith, or the associated attorneys in the related matter had been destroyed.

5 More specifically, at issue was whether LuLaRoe had submitted declarations 

sufficient to constitute a prima facie showing that the anonymous letters fell under the 

attorney client privilege as defined in Evidence Code section 952, and whether the 

handwritten notes on one of the documents were attorney work product, privileged under 

Code of Civil Procedure section 2018.030. Providence did not attempt to rebut 

LuLaRoe’s supplemented prima facie showing.
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On May 22, 2020, LuLaRoe filed its motion to disqualify Reed Smith. After a 

hearing, the trial court denied the motion in a written “Ruling on Submitted Matter” 

issued July 23, 2020. 

II. DISCUSSION

LuLaRoe argues that the trial court abused its discretion by denying the motion to 

disqualify Reed Smith. We hold that the trial court acted within its discretion.

A. Applicable Law

The “seminal California decision defining a lawyer’s ethical obligations upon 

receiving another party’s attorney-client privileged materials” is State Comp. Ins. Fund v. 

WPS, Inc. (1999) 70 Cal.App.4th 644 (State Fund). (McDermott Will & Emery, LLP v. 

Superior Court (2017) 10 Cal.App.5th 1083, 1106 (McDermott).) State Fund held: 

“When a lawyer who receives materials that obviously appear to be subject to an 

attorney-client privilege or otherwise clearly appear to be confidential and privileged and 

where it is reasonably apparent that the materials were provided or made available 

through inadvertence, the lawyer receiving such materials should refrain from examining 

the materials any more than is essential to ascertain if the materials are privileged, and 

shall immediately notify the sender that he or she possesses material that appears to be 

privileged. The parties may then proceed to resolve the situation by agreement or may 

resort to the court for guidance with the benefit of protective orders or other judicial 

intervention as may be justified.” (State Fund, supra, 70 Cal.App.4th at pp. 656-657.)
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In Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817 (Rico), our 

Supreme Court adopted this “State Fund rule,” describing it as a “fair and reasonable 

approach.” Rico extended the rule to apply not just to attorney-client privileged 

materials, but also materials protected by the attorney work product doctrine. (Id. at pp. 

817-818.) Rico describes the State Fund 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.” 

(Rico, at p. 818.)

In State Fund, the Court of Appeal also addressed the circumstance where the 

materials do not “obviously” or “clearly” appear to be confidential or privileged: 

“[W]henever a lawyer ascertains that he or she may have privileged attorney-client 

material that was inadvertently provided by another, that lawyer must notify the party 

entitled to the privilege of that fact.”6 (State Fund, supra, 70 Cal.App.4th at p. 657.) 

Several later cases have concluded that the opposing party’s claim of privilege will 

“trigger[]” the receiving attorney’s “State Fund obligations,” no matter what the face of 

the material and the circumstances of its disclosure may arguably show. (McDermott, 

supra, 10 Cal.App.5th at p. 1112; see id. at 1116 [objections of opposing counsel 

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Rico does not discuss or apply this aspect of State Fund, as the Supreme Court 

in Rico only considered whether the attorney notes at issue were clearly privileged and 

whether it was reasonably apparent that their disclosure was inadvertent. (Rico, supra, 42 

Cal.4th at pp. 818-819.)
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“constitute substantial evidence that [the receiving law firm] reasonably should have 

realized the [material] was an inadvertently disclosed, privileged document subject to the 

State Fund rule”]; Clark v. Superior Court (2011) 196 Cal.App.4th 37, 46 (Clark) 

[counsel’s warning on privilege holder’s behalf triggers an opposing attorney’s State 

Fund duties].) That is, the receiving attorney must at that point “refrain from examining 

the materials any more than is essential to ascertain if the materials are privileged” or 

otherwise using the materials until the parties have “resolve[d] the situation by 

agreement” or received judicial guidance. (State Fund, supra, at pp. 656-657.)

The consequence of the receiving counsel’s failure to comply with State Fund

obligations can be disqualification, but that is not automatically the case. (See State 

Fund, supra, 70 Cal.App.4th at p. 657 [disqualification “might be justified . . . assuming 

other factors compel disqualification”].) “A trial court . . . may not order disqualification 

“‘simply to punish a dereliction that will likely have no substantial continuing effect on 

future judicial proceedings.”’” (McDermott, supra, 10 Cal.App.5th at p. 1120.) 

Nevertheless, an “affirmative showing of existing injury from the misuse of privileged 

information is not required.” (Ibid.) Rather, “‘the significant question’” is whether there 

is a “‘genuine likelihood’” that the receiving counsel’s review and use of the 

inadvertently disclosed materials will “‘affect the outcome of the proceedings before the 

court.’” (Ibid.; see also Clark, supra, 196 Cal.App.4th at p. 55 [same].)) “‘Thus, 

disqualification is proper where . . . there is a reasonable probability counsel has obtained 
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information the court believes would likely be used advantageously against an adverse 

party during the course of the litigation.’” (McDermott, at p. 1120.)

“A trial court’s decision to grant or deny a motion to disqualify counsel is 

generally reviewed for abuse of discretion.” (O’Gara Coach Co., LLC v. Ra (2019) 30 

Cal.App.5th 1115, 1123; accord Rico, supra, 42 Cal.4th at p. 819 (Rico).) “‘In exercising 

its discretion, the trial court must make a reasoned judgment that complies with 

applicable legal principles and policies.’” (Clark, supra, 196 Cal.App.4th at p. 46.) 

“‘The order is subject to reversal only when there is no reasonable basis for the trial 

court’s decision.’” (Ibid.) The trial court’s express and implied factual findings are 

reviewed for substantial evidence. (People ex rel Dept. of Corporations v. SpeeDee Oil 

Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) “Where the trial court has drawn 

reasonable inferences from the evidence, we have no power to draw different inferences, 

even though different inferences may also be reasonable.” (Federal Home Loan 

Mortgage Corp. v. La Conchita Ranch Co. (1998) 68 Cal.App.4th 856, 860.) Rather, we 

must draw all inferences in favor of the prevailing party and accept the trial court’s 

resolution of conflicts in the evidence. (Clark, supra, 196 Cal.App.4th at pp. 46-47.) 

B. Analysis

A premise of LuLaRoe’s appellate arguments is that even the very first of the 

anonymously sent documents that Reed Smith received appeared on its face to be

privileged, or at least that any reasonably competent lawyer reviewing the document 

would have recognized it may be privileged, triggering immediate duties under State 
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Fund. The evidence, however, does not support LuLaRoe’s premise. The email itself is 

not a privileged document: it was sent by Providence’s counsel to LuLaRoe’s counsel 

and a LuLaRoe non-attorney employee, with a copy to another individual. A declaration

from LuLaRoe’s outside counsel later provided evidence that the handwritten notes on 

the printed copy of the email were in fact attorney work product. But the declaration 

does not demonstrate why a reasonable lawyer initially reviewing the document would 

have been on notice that the handwriting belonged to an attorney, let alone LuLaRoe’s 

attorney.

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 We therefore find no abuse of discretion in the trial court’s conclusion that 

Reed Smith’s receipt of that first document did not trigger any immediate duties under 

State Fund.

Similarly, LuLaRoe eventually submitted declarations averring that the 

typewritten, anonymous letters, composed by the Floratos Loll legal secretary who sent 

them, contained statements that “reflect or purport to reflect the substance of 

communications between [LuLaRoe] attorneys handling this case and members of the 

management team at [LuLaRoe],” even if in “mischaracterized or distorted” form. As the

trial court correctly noted, however, these declarations establish only that LuLaRoe 

employees and attorneys recognized the privileged content. They do not establish that a 

reasonably competent counsel on the other side of the litigation, “knowing the 

7

LuLaRoe has asserted, in its privilege log and elsewhere, that the email was 

printed from its attorney’s account. Nothing in evidence, however, explains how this was 

determined, or why someone reviewing the documentshould reasonably have recognized 

that it was printed out from LuLaRoe’s attorney’s account as opposed to that of one of 

the other recipients (or the sender, for that matter).
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circumstances of the litigation, would have concluded the materials were privileged” 

(Rico, supra, 42 Cal.4th at p. 818), as opposed to merely being the nonprivileged 

“musings of a disgruntled person who was following the case,” as Rivas and Houston 

initially perceived them to be. Thus, the trial court did not abuse its discretion in 

determining that Reed Smith did not violate its ethical obligations under the State Fund

rule with respect to the second and third anonymous communications.

Once Reed Smith received the last of the anonymously sent documents, it had

additional context for all of the communications, provided by the attachment containing

what seemed to be LuLaRoe’s confidential information. With the new context, Houston 

and Rivas inferred (correctly) that LuLaRoe might assert a claim of privilege and 

inadvertent disclosure regarding the documents, even though the Reed Smith attorneys

did not believe, based on the information they had, that the documents were in fact 

privileged. Rivas therefore notified LuLaRoe’s counsel of the firm’s receipt of the

documents, initiating a dialogue on the issue. This is exactly what State Fund instructs

attorneys in such circumstances to do. (See State Fund, supra, 70 Cal.App.4th at p. 657

[“[W]henever a lawyer ascertains that he or she may have privileged attorney-client 

material that was inadvertently provided by another, that lawyer must notify the party 

entitled to the privilege of that fact”].)

LuLaRoe faults Reed Smith for saving the documents to its electronic document 

system and distributing the documents at issue to the team working on the litigation, 

which included both Reed Smith attorneys and Providence’s in-house counsel. That
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distribution of the documents, however, apparently occurred before any attorney review 

of the documents, as a function of the firm’s routine procedures for distributing incoming 

correspondence relating to the case, and there is no evidence to the contrary. There is 

nothing in State Fund or Rico, nor in any of the authority interpreting and applying those 

cases, suggesting that a law firm must implement screening procedures to verify that 

incoming correspondence does not include inadvertently disclosed privileged materials 

before distribution to a litigation team. Rather, any duties an attorney may have under

State Fund are triggered when the attorney reviews the material and ascertains that it is or 

might be inadvertently disclosed and privileged. (See State Fund, supra, 70 Cal.App.4th 

at pp. 656-657.)

LuLaRoe also suggests that Houston and Rivas acted improperly by showing the 

documents to the Reed Smith attorney serving as the firm’s in-house counsel. There is 

nothing in evidence, however, suggesting that this distribution of the documents was for 

any purpose other than seeking ethical guidance in an unusual situation. In our view, 

such a consultation falls squarely within the degree of examination of the documents 

allowed by State Fund as “essential to ascertain if the materials are privileged” and 

implicitly encouraged as part of every attorney’s “‘“obligation not only to protect his 

client’s interests but also to respect the legitimate interests of fellow members of the bar, 

the judiciary, and the administration of justice.”’” (State Fund, supra, 70 Cal.App.4th at 

pp. 656-657.) State Fund and Rico are entirely compatible with the principle that 
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lawyers, too, should be encouraged to seek legal advice as necessary to ensure that they 

comply with their legal and ethical obligations.

Additionally, LuLaRoe suggests that the Reed Smith attorneys acted improperly 

by failing to return the documents immediately and destroy any copies once LuLaRoe 

asserted a claim of privilege. Not so. There is authority that Angulo’s claim of privilege 

put Reed Smith on notice, to the extent it was not before, that there was at least a dispute 

about whether the documents were privileged, triggering State Fund duties to “refrain 

from examining the materials any more than is essential to ascertain if the materials are 

privileged,” and “then proceed to resolve the situation by agreement or [. . .] resort to the 

court for guidance with the benefit of protective orders and other judicial intervention as 

may be justified.” (State Fund, supra, 70 Cal.App.4th at pp. 656-657; see McDermott,

supra, 10 Cal.App.5th at p. 1112; Clark, supra, 196 Cal.App.4th at p. 46.) There is no 

authority supporting the notion that the receiving party must immediately capitulate to a 

claim of privilege, no matter whether currently available information demonstrates the 

claim to have merit. Here, Reed Smith initially attempted to resolve the situation by 

agreement, but LuLaRoe sought judicial intervention. Both sides were, in this regard, 

acting as contemplated by State Fund. 

A closer question is presented by the distribution of the document received on 

September 19, 2019 to two attorneys at an associated firm in a related case. If the 

document was shared as part of trying to identify the anonymously sent document—and 

in particular, to determine if it contained confidential information, and if so, whose?—
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that would at least arguably fall within the category of review “essential to ascertain if the 

materials are [or might be] privileged.” (State Fund, supra, 70 Cal.App.4th at p. 656.) If, 

however, Houston and Rivas had already ascertained that the document contained 

LuLaRoe’s confidential information and might be subject to a claim of privilege, State 

Fund instructs that their duty was to notify the party who would be entitled to the 

privilege; a delay in doing so while the document was shared with associated counsel in a 

related matter would be concerning. (See id. at p. 657.) Our record, however, does not 

establish whether the document was shared with those attorneys before or after Houston 

and Rivas’s consultation with Reed Smith’s in-house counsel and the state bar ethics 

hotline, and includes no evidence as to why the document was shared with those 

attorneys, who shared the document with them, or the extent of the attorneys’ review of 

the document before they destroyed it in accordance with the trial court’s order.

In any case, even assuming that Reed Smith fell short of its ethical obligations 

under State Fund and Rico in one respect or another, disqualification would not be 

appropriate if the “‘“dereliction . . . will likely have no substantial continuing effect on 

future judicial proceedings.”’” (McDermott, supra, 10 Cal.App.5th at p. 1120.) The 

record amply supports the conclusion that it would not. The copies previously in Reed 

Smith’s possession have been destroyed or returned, and Houston and Rivas both 

declared that they had only the most general memories of their contents, including no 
16

specifics about the privileged or confidential aspects.8 Although the documents were 

distributed to a larger number of Reed Smith attorneys, only Houston, Rivas, and the inhouse counsel they consulted actually reviewed the documents in even a cursory way.

9

 

There is no evidence compelling the conclusion that Reed Smith has used or is likely to 

use the documents at any point in the litigation (other than the initial dispute regarding 

whether the documents are privileged). (Cf., e.g., McDermott, supra, 10 Cal.App.5th at 

p. 1122 [upholding disqualification where receiving firm continued to review and use 

inadvertently disclosed privileged documents in discovery and in formulating claims and 

defenses even after claim of privilege asserted]; Clark, supra, 196 Cal.App.4th at p. 53 

[upholding disqualification where there was evidence that receiving attorney “excessively 

reviewed” privileged documents and “affirmatively used” information from them to 

question witnesses, as well as to craft and support claims].) On this record, the trial court 

was well justified in deciding that there was no “‘genuine likelihood’” that the receiving 

counsel’s review and use of the inadvertently disclosed materials would “‘affect the 

8 Moreover, given that the documents have not been included in the record and 

their contents have not been described for the record except in general terms, there is no 

basis to conclude the Reed Smith attorneys could have gained any substantial advantage 

in the litigation from the privileged information in the documents, even if they did 

remember it.

9

Rivas declared that he verified with the firm’s technical specialists that he had 

been the only Reed Smith attorney who accessed the electronic copies of the documents 

in the firm’s systems, and described actions he took to ensure that the original documents 

were “maintained confidentially, even within Reed Smith.”
17

outcome of the proceedings before the court.’” (McDermott, supra, 10 Cal.App.5th at p. 

1120.) 

In support of a different conclusion, LuLaRoe cites O’Gara Coach Co., LLC v. Ra

(2019) 30 Cal.App.5th 1115, 1128-1129 (O’Gara) for the proposition that it is 

unnecessary “for the party seeking to protect its privileged information to make an 

affirmative showing of existing injury from the misuse of the privileged information; the 

threat of such use is sufficient to justify disqualification.” LuLaRoe proposes that Reed 

Smith’s “mere threat to use the Privileged Documents alone ‘is sufficient to justify 

disqualification.’” This argument fails for two reasons. First, it is questionable whether 

Rivas’s anodyne reservation of rights and explanation of why he was sending the 

documents to Angulo in his September 30, 2019 letter, or anything else in the parties’ 

correspondence, is reasonably interpreted as a “threat.”10 Second, that is not the type of 

threat that O’Gara addressed. O’Gara involved concerns raised by the circumstance that 

an attorney for one side of the litigation had previously been the president and CEO of an 

adverse party, and had in that former role played an active part in developing the adverse 

party’s claims and defenses in the current litigation. At issue was whether there was a 

genuine likelihood the adverse party’s confidential and privileged information would be 

10 Rivas closed his initial correspondence to Angulo with the following paragraph: 

“Please note that this letter is being sent without waiver of any of Plaintiff’s rights or 

remedies. In sending this letter, Plaintiff does not concede that any of the materials 

enclosed with the letter are privileged or confidential. However, because Plaintiff may 

use the most recent communication in discovery, it is providing you with all 

communications it received in the interests of full disclosure and after having consulted 

with the state bar ethics hotline regarding this unusual circumstance.”
18

used to its opponents’ advantage in the litigation. (See O’Gara, supra, 30 Cal.App.5th at 

p. 1129 [citing to McDermott’s and Clark’s discussions of “genuine likelihood” 

standard].) Unsurprisingly on the facts before it, the O’Gara court found there was that 

sort of “threat” that the information would be used or disclosed, justifying 

disqualification of the attorney and his firm. (O’Gara, at pp. 1129, 1131-1132.) Our 

facts are different.

The trial court’s conclusions—that Reed Smith complied with its obligations 

under State Fund and Rico, and in any case disqualification is inappropriate because there 

is no genuine likelihood that Reed Smith will advantageously use the inadvertently 

disclosed information—were reasonable.11 We therefore will not disturb its ruling.

III. DISPOSITION

The trial court’s denial of LuLaRoe’s motion to disqualify is affirmed. Providence 

is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

McKINSTER

Acting P. J.

FIELDS J.

11 Indeed, on this record, even if we were not required to apply a deferential 

standard of review, we would reach the same conclusions.