City of San Diego v. Superior CourtAnnotate this Case
As part of an internal affairs investigation regarding the unauthorized disclosure of a confidential police report, the San Diego Police Department (Department) questioned plaintiff/real party Dana Hoover, a detective for the Department, regarding the content of communications between Hoover and an attorney representing her in an employment-related lawsuit against defendant/petitioner City of San Diego. Although Hoover invoked the privilege, the Department directed her to answer the internal affairs questions or face discipline and/or termination of employment. The Court of Appeal found the trial court properly concluded that the City violated the attorney-client privilege when Department investigators insisted Hoover respond to questions despite her invocation of the privilege. A deputy city attorney attending the interview as an observer also violated the California State Bar Rules of Professional Conduct when she began questioning Hoover about her lawsuit without the permission of her lawyer in the case. Hoover filed a motion to disqualify the City Attorney in her lawsuit. The Court of Appeal found disqualification of counsel, was a drastic remedy that should be ordered only where the violation of the privilege or other misconduct has a "substantial continuing effect on future judicial proceedings." The Court found the transcript of the internal affairs interview demonstrated that although relevant confidential information could in theory have been elicited in response to the internal affairs questions, in fact no such information was disclosed. Under these circumstances, because "a disqualification order must be prophylactic, not punitive" the drastic remedy of depriving a party of its counsel of choice was unwarranted. The Court issued a writ of mandate to direct the trial court to vacate its order granting Hoover’s motion to disqualify the San Diego City Attorney.