Lohman v. Superior Court

In Lohman v. Superior Court (1978) 81 Cal.App.3d 90, the deposition of the plaintiff's former attorney was being taken by the defendant. The defendant sought to get from the attorney testimony as to certain opinions formed by him while representing the plaintiff. The plaintiff objected, asserting both the lawyer-client privilege and the attorney's work-product privilege. The deponent-attorney indicated that he was willing to testify with respect to the opinions requested. The Lohman court held that, since the attorney's work-product privilege belongs to the attorney and he, as holder of the privilege, was willing to waive it, the former client could not validly assert the privilege to prevent the attorney from so testifying. The Lohman court recognized that Mack v. Superior Court (1968) 259 Cal.App.2d 7, had held that, although Code of Civil Procedure section 2016 -- which creates the attorney's work-product privilege -- does not set forth the persons who are entitled to claim the privilege, it would adopt a rule of law that the client as well as the attorney may claim this privilege. The Lohman court criticized the Mack case because of the latter's statement that "the work product privilege was created for the protection of the client as well as the attorney . . . ." ( Mack, supra, 259 Cal.App.2d 7, 10.) In disagreeing with Mack, the Lohman court makes the observation that "it appears that the whole thrust of the work product privilege was to provide a qualified privilege for the attorney preparing a case for trial and protecting the fruits of his labor from discovery." ( Lohman, supra, 81 Cal.App.3d 90, 101.)