Celerity v. Ultra Clean (holding as PDF) Chief Magistrate Judge Larson Ultra Clean hired the same law firm for both opinion and trial counsel. Not a great idea. In fact, Judge Larson says Ã¢â?¬Å?it does seem risky.Ã¢â?¬Â? Celerity claims Ultra Clean waived its attorney-client privilege and the work product protection by relying on advice-of-counsel and using the same law firm for both opinion and trial counsel. The law firm stated Ã¢â?¬Å?a wall had been erectedÃ¢â?¬Â? in order to keep the trial counsel and opinion counsel separate. This was not a successful argument:
As this Court has previously ruled, where opinion counsel and trial counsel are in the same firm, the same shelter does not extend for communications between a client and trial counsel, if they are on the subject of the opinion relied on. Walls or no walls.
Relying heavily on Echostar, Judge Larson concluded most everything was waived except any Ã¢â?¬Å?legal analysis that was not communicated to the client.Ã¢â?¬Â?
[Ultra Clean] has waived attorney-client privilege and the work product doctrine for all attorney-client communications on the same subject matter as the opinion relied upon, for all work product which references such communications and for all work product on the same subject which was communicated to the client. Waiver extends to communications and documents both before and after the complaint was filed.
The California Rules of Professional Conduct was sited to highlight a policy of clearing conflict of interests that carries over to using the same law firm for both opinion counsel and trial counsel. To see analysis of another of Judge LarsonÃ¢â?¬â?¢s waiver opinions see this post. To see analysis of another N.D. Cal. opinion on waiver see this post.