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A California appeal court on Wednesday took the rare step of disqualifying a Los Angeles lawyer and all his experts from an accident case after finding the lawyer acted unethically by not disclosing he had obtained an opponent’s confidential documents. The ruling by Riverside’s 4th District Court of Appeal upholds a trial court decision disqualifying Raymond Johnson from representing several plaintiffs in a vehicle rollover case against Mitsubishi Motors Corp. Johnson had acquired handwritten notes of a meeting between defense lawyers and their experts, then used them for impeachment purposes during depositions. “The record shows,” Justice Barton Gaut wrote, “that, rather than informing opposing counsel of his inadvertent discovery, Johnson surreptitiously copied the document, disseminated it to the key players of plaintiffs’ legal team and made full use of the privileged document.” That violated ethical standards, Gaut wrote, and “placed the defendants at a significant disadvantage that could not have been removed by lesser sanctions” than complete disqualification. Justices Manuel Ramirez and Art McKinster concurred. Sean SeLegue, an ethics expert at Rogers, Joseph, O’Donnell & Phillips, called the opinion “unusual” in that appeal courts don’t often “disqualify the party’s expert, as well as the party’s attorney.” “It certainly raises the bar,” he said, “on what a lawyer is to do when he receives, by any means, a document that is privileged, belongs to the other side.” In reaching its decision, the appeal court rejected Johnson’s claim that it was bound by the California Supreme Court’s 1993 ruling in Aerojet-General Corp. v. Transport Indemnity Inc., 18 Cal.4th 996, which held that lawyers who discover a privileged document are “duty-bound” to use the unprivileged portions. Instead, the court relied on the 2nd District’s 1999 decision in State Compensation Insurance Fund v. WPS Inc., 70 Cal.App.4th 644, which requires immediately notifying an opponent once a confidential document has been found. Gaut wrote that the more recent ruling limited the holding in Aerojet. According to Wednesday’s ruling, the opposing parties disagreed about how Johnson, a 20-year member of the California bar, came into possession of opponent James Yukevich’s notes. Yukevich, a partner in L.A.’s Yukevich & Sonnett, claimed they were taken from his files when Johnson “temporarily commandeered” the deposition room for a personal meeting, while Johnson said they were accidentally delivered to him by a court reporter. In granting a defense motion to disqualify Johnson and his experts, retired San Bernardino County Superior Court Judge Ben Kayashima ruled that the documents were protected under the attorney-client privilege and the attorney work-product doctrine. The appeal court reversed Kayashima on the attorney-client privilege ruling, but affirmed on the other issue, saying that attorneys’ notes are protected from discovery because of their derivative or interpretive nature. “The materials no longer consist solely of the witness’s statements, but they also expose the attorney’s impressions, including his evaluation of the strengths and weaknesses of the case,” Justice Gaut wrote. “When the notes consist [of] an attorney’s impressions concerning the witness’s statement, the notes are protected absolutely under the attorney work-product doctrine.” Johnson had argued, however, that he was entitled to a crime-fraud exception to the doctrine because it was his belief that the handwritten notes showed that the defense experts were lying and contradicted earlier deposition statements. In what ethics expert SeLegue said was a significant holding, the court disagreed and said that while there is a crime-fraud exception for the attorney-client privilege, there isn’t one for the attorney work-product rule. “The absolute attorney work-product privilege is just that, absolute,” Gaut wrote. The court ordered that the plaintiffs in the rollover case be given “ample opportunity” to retain new counsel and experts, “who in turn should be afforded every opportunity to complete discovery and prepare for trial.” Neither Johnson nor Yukevich could be reached for comment. But Johnson’s lawyer, Norman Pine, a partner in Sherman Oaks’ Pine & Pine, said he was disappointed and believes the court is wrong. “We believe,” he said, “this opinion cannot be reconciled with the Aerojet opinion, upon which Mr. Johnson relied in making the decisions he made, and we intend to seek review.” The ruling is Rico v. Mitsubishi Motors Corp., 04 C.D.O.S. 1627.

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