Have you signed up for my monthly Family Law Case Updates Newsletter?
Here's a Case Update from the May batch:
Byers v. Superior Court
5/7/2024 CA 1/5: A169321 – J. Jackson
https://lnkd.in/gh_eK5-Y
This case addresses whether seeking attorney fees impliedly waives the attorney-client privilege. In this case, the plaintiffs requested attorney's fees under the Brandt doctrine, which allows insureds to recover legal fees as damages when an insured is forced to litigate to obtain benefits due under an insurance policy. The Court of Appeal, in denying the writ petition, concluded that such a claim does indeed act as a waiver of privilege over these communications. The Court of Appeal reasoned that the defendant, USAA, was entitled to test the veracity and reasonableness of the fees, which even meant they were entitled to the underlying billing records that substantiated the fees.
The Court of Appeal cautioned that the waiver was limited in scope, so as not to unduly impinge on the attorney-client privilege. The waiver only extended to documents and communications that are directly relevant to the computation and justification of the claimed legal fees.
Does this case mean that when a party seeks need and ability based attorney fees in family court, they have impliedly waived the attorney-client privilege as to the documents and communications that are directly relevant to the computation and justification of claimed fees? I believe it does. In this case, the purpose of implying the waiver is to allow the party opposing the request to test the veracity and reasonability of the attorney fees. Under the Family Code, the veracity and reasonability of the fees incurred are threshold questions in any need and ability based fee request.
I don’t believe, however, that this extends to Family Code section 271 sanction requests because those do “not require a correlation between the sanctioned conduct and specific attorney fees.” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226.)
https://lnkd.in/g9x5t9eC
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