Counsel Concerns

Western District Judge Robert S. Lasnik found that California's limitations period applied to Clinton's malpractice action because California law “has the most significant relationship to the specific malpractice allegations asserted by plaintiff. Although the overall relationship between plaintiff and defendants is centered in Washington, the specific legal work at issue occurred primarily in California in connection with the UMG and Funkadelic [i.e., Charly Records] actions, and any adverse legal rulings were incurred there. Plaintiff may not now take the position that, because Hendricks & Lewis is a Washington firm, the legal work in question was actually performed in Washington: plaintiff successfully argued the opposite in the [arbitration] confirmation proceeding '.”

The district judge added: “This action was filed on July 11, 2011, more than one year after both of plaintiff's malpractice claims accrued. Plaintiff knew by August 8, 2008, at the latest, that Hendricks & Lewis would not negotiate a license with or file suit against Charly Records. Plaintiff's allegations also show that judgment was entered against him in the UMG action in 2008, by which time he was aware of the multiple defects in the prosecution alleged in his complaint. Plaintiff offers no argument or facts that would toll or otherwise extend the limitations period under California law.”

No Selective Waiver of Attorney/
Client Privilege Allowed in Superman Litigation

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit declined to recognize selective waiver of the attorney/client privilege in a case involving the attorney for the heirs of the creators of Superman. In re: Pacific Pictures Corp., 11-71844.

Marc Toberoff has served as attorney and business advisor for the heirs of Superman creators Jerome Siegel and Joe Shuster in their rights battle with D.C. Comics. In 2010, D.C. Comics sued Toberoff and the Siegel/Shuster heirs for interference with contractual relationships. Toberoff subsequently handed over documents from the heirs' client files to the U.S. Attorney for the Central District of California, in response to a subpoena he himself had requested in an investigation by the federal government of alleged documents theft by a lawyer who formerly worked for Toberoff. D.C. Comics then sought copies of those documents for their civil complaint. A magistrate ruled the attorney/client privilege was fully waived when Toberoff gave the client documents to the government. Toberoff and the heirs filed a petition for a writ of mandamus with the Ninth Circuit.

Denying the petition, the Ninth Circuit noted: “Petitioners' primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive the privilege as to the world at large. ' [But] there have been multiple legislative attempts to adopt a theory of selective waiver. Most have failed.” The appeals court added that “even though the subpoena specifically contemplated that Toberoff may choose to redact privileged materials, he did not. Petitioners assert that the U.S. Attorney would not have been satisfied with redacted documents, but we will never know because Toberoff never tried. As such, we conclude that the district court properly treated the disclosure of these documents as voluntary.”

CA Filing Time Is Applied to Malpractice Suit in WA Federal Court

The U.S. District Court for the Western District of Washington decided that California's one-year statute of limitations for legal malpractice claims applied to an action by musician George Clinton against his former lawyers, who are based in Seattle, WA. Clinton v. Hendricks & Lewis PLLC, C11-1142.

Clinton alleged that Hendricks & Lewis committed malpractice in their representation of Clinton in litigation involving Universal Music Group (UMG) in California, and in failing to negotiate licenses for or litigate Clinton's copyright interests as to Charly Records. Clinton also sought to overturn an arbitrator's ruling that he owed legal fees to Hendricks & Lewis.

Western District Judge Robert S. Lasnik found that California's limitations period applied to Clinton's malpractice action because California law “has the most significant relationship to the specific malpractice allegations asserted by plaintiff. Although the overall relationship between plaintiff and defendants is centered in Washington, the specific legal work at issue occurred primarily in California in connection with the UMG and Funkadelic [i.e., Charly Records] actions, and any adverse legal rulings were incurred there. Plaintiff may not now take the position that, because Hendricks & Lewis is a Washington firm, the legal work in question was actually performed in Washington: plaintiff successfully argued the opposite in the [arbitration] confirmation proceeding '.”

The district judge added: “This action was filed on July 11, 2011, more than one year after both of plaintiff's malpractice claims accrued. Plaintiff knew by August 8, 2008, at the latest, that Hendricks & Lewis would not negotiate a license with or file suit against Charly Records. Plaintiff's allegations also show that judgment was entered against him in the UMG action in 2008, by which time he was aware of the multiple defects in the prosecution alleged in his complaint. Plaintiff offers no argument or facts that would toll or otherwise extend the limitations period under California law.”

No Selective Waiver of Attorney/
Client Privilege Allowed in Superman Litigation

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit declined to recognize selective waiver of the attorney/client privilege in a case involving the attorney for the heirs of the creators of Superman. In re: Pacific Pictures Corp., 11-71844.

Marc Toberoff has served as attorney and business advisor for the heirs of Superman creators Jerome Siegel and Joe Shuster in their rights battle with D.C. Comics. In 2010, D.C. Comics sued Toberoff and the Siegel/Shuster heirs for interference with contractual relationships. Toberoff subsequently handed over documents from the heirs' client files to the U.S. Attorney for the Central District of California, in response to a subpoena he himself had requested in an investigation by the federal government of alleged documents theft by a lawyer who formerly worked for Toberoff. D.C. Comics then sought copies of those documents for their civil complaint. A magistrate ruled the attorney/client privilege was fully waived when Toberoff gave the client documents to the government. Toberoff and the heirs filed a petition for a writ of mandamus with the Ninth Circuit.

Denying the petition, the Ninth Circuit noted: “Petitioners' primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive the privilege as to the world at large. ' [But] there have been multiple legislative attempts to adopt a theory of selective waiver. Most have failed.” The appeals court added that “even though the subpoena specifically contemplated that Toberoff may choose to redact privileged materials, he did not. Petitioners assert that the U.S. Attorney would not have been satisfied with redacted documents, but we will never know because Toberoff never tried. As such, we conclude that the district court properly treated the disclosure of these documents as voluntary.”