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Rifkind v. Superior Court2/23/1994
EPSTEIN, Acting P.J.:
The petitioner in this case, an attorney, was sued by another attorney for improperly withdrawing money held in a joint account pending resolution of a fee dispute between them. The petitioner, then represented by counsel, was deposed and, at the deposition, he was asked "legal contention" questions, calling upon him to state all facts, list all witnesses and identify all documents that support the affirmative defenses he had asserted in his answer to the lawsuit. In the published part of this opinion we discuss the propriety of these questions in the context of a deposition. We conclude that the questions were improper in that context, and that the trial court erred in granting respondent's motion to compel petitioner to answer them. In reaching this Conclusion, we emphasize that our concern is not with the questions but their context. The same questions would have been entirely appropriate if asked by interrogatories.
In the unpublished portion of our opinion we conclude that the trial court improperly ordered petitioner to provide responses that would have invaded the attorney-client privilege. We shall direct that this part of the order also be set aside.
Finally, and in light of these Conclusions, we shall direct the trial court to vacate its order imposing sanctions against petitioner and his attorney for refusing to answer the deposition questions that we review.
FACTUAL AND PROCEDURAL SUMMARY
Because of the limited nature of the issues before us, it is not necessary to set out a detailed account of the underlying litigation, or the litigation out of which it, in turn, arose. Instead, we provide the following synopsis, related to the contention questions issue, reserving a fuller exposition of facts especially pertinent to the lawyer-client privilege for our Discussion of that issue.
The parties to this proceeding are Robert Rifkind, the petitioner, and Ned Good, the real party in interest. Each is an experienced attorney.
Mr. Rifkind was a long-time friend of a woman whose husband was killed in an air crash. Through his law firm, Rifkind & Sterling, Inc., he undertook to represent the woman and her children in litigation against those believed to be responsible for the death. Mr. Rifkind associated Mr. Good's law firm, Good & Novack, as co-counsel, and that firm undertook substantial efforts in the litigation. After settlement of one of the cases a dispute arose between Mr. Rifkind and Mr. Good over entitlement to attorney fees resulting from the Disposition. The attorneys were unable to resolve their differences over a division of the fees, but they did agree to deposit them in a joint blocked bank account. Some time later, the funds were withdrawn from the account. Mr. Good's suit alleges that Mr. Rifkind tortiously caused the withdrawal.
Mr. Good's lawsuit was initiated by an unverified complaint. Mr. Rifkind, acting for himself in propria persona, filed an answer denying the allegations and asserting several affirmative defenses. Mr. Rifkind is not a litigator, and his answer apparently was patterned after that of a co-defendant and former partner. Mr. Rifkind's present attorneys were substituted into the case by a formal substitution of counsel filed shortly thereafter.
Mr. Rifkind's deposition was taken later in the month that the substitution was effected. His attorney was present to defend the deposition. During the course of the deposition, Mr. Rifkind was asked, and was instructed not to answer, three categories of questions that later became the subject of Mr. Good's motion to compel. The trial court ultimately ordered Mr. Rifkind to answer quest
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