Christian L. Johnson sued his employer, California Department of Transportation based on claims arising out of his employment. He alleged fifteen claims against Caltrans, including for discrimination, harassment, and retaliation.

While the suit was pending, Paul Brown, an attorney for Caltrans, sent an email about the litigation to Nicolas Duncan, Johnson’s supervisor who was not named in the litigation.

The email contained a “CONFIDENTIALITY NOTICE” that stated: “This is a privileged attorney-client communication and/or is covered by the attorney work-product doctrine. It is for the sole use of the intended recipient(s). Any unauthorized review, use, disclosure, or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Do not print, copy or forward.”

Unbeknownst to Caltrans, Duncan took a photograph of the email and sent it to Johnson, who gave it to his attorney, John Shepardson. It is unclear why Duncan did this.

The next day, Shepardson emailed Caltrans’s counsel, Christopher Sims, attaching the image and saying it “was sent to my client.” Shepardson asserted that the email was intentionally disclosed and so “appears to be a waiver of attorney-client privilege, if any privilege attaches to communications with Mr. Duncan.” Shepardson also stated that the email was “distressing” to Johnson and asked Caltrans to “cease and desist any and all communications with employees that are misleading about the merits of [Johnson’s] claims.”

After extensive meet-and-confer communications, Caltrans sought a protective order on the ground that the email was covered by the attorney-client privilege. The trial court entered the order. In the months that followed, the parties engaged in a protracted dispute concerning Johnson’s and Shepardson’s compliance with the protective order’s terms.

Eventually, Caltrans filed a motion to enforce the order and later a motion to disqualify plaintiffs attorney John Shepardson and three retained experts. The trial court disqualified Shepardson and the experts. In The trial court cited State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657 (State Fund) and McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1108-1109 (McDermott), two cases involving a lawyer’s ethical duties upon receiving documents that are or may be privileged. The court said that Caltrans could have reasonably expected Shepardson to comply with his duties under State Fund. The trial court additionally determined that Shepardson’s conduct would prejudice the ongoing proceedings.

On appeal, Johnson challenged the trial court’s disqualification order. Among other arguments, he claims that the Brown email was not protected by the attorney-client privilege, Caltrans waived any privilege through undue delay, and the court abused its discretion in ordering the drastic remedy of disqualification.

The Court of Appeal found no merit in his arguments and affirmed the disqualification order in the published case of Johnson v. Dept. of Transportation – C099319 (March 2025).

“A trial court’s authority to disqualify an attorney derives from the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.’ ” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “[U]ltimately the issue involves a conflict between a client’s right to counsel of his choice and the need to maintain ethical standards of professional responsibility.”

“Protecting the confidentiality of communications between attorney and client is fundamental to our legal system. The attorney-client privilege is a hallmark of our jurisprudence that furthers the public policy of ensuring ‘ “the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.” ’ ” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at p. 1146.)

“We conclude the trial court properly disqualified Shepardson and the three experts after finding that State Fund’s obligations were not satisfied. First, the trial court correctly determined that Shepardson breached his State Fund obligations after he received the Brown email. When he received the email, Shepardson properly notified Caltrans. (State Fund, supra, 70 Cal.App.4th at p. 657.) But the record supports the trial court’s conclusion that his actions thereafter fell short of what State Fund requires. After receiving the email, and especially after Caltrans unequivocally asserted the privilege hours after learning of the disclosure, Shepardson was not permitted to examine the email any further, much less distribute the email to other witnesses or use it to formulate case strategy, pending an agreement between the parties or judicial intervention.”

Footnote 2 on page 25 notes that the State Fund requirements were codified in rule 4.4 of the California State Bar Rules of Professional Conduct.

Plaintiff’s Attorney Disqualified for Violation of State Bar Rule 4.4