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Greene v. Root10/31/2003
There is an old adage that bad things come in threes. Walter H. Root is probably a believer. His self-described "crowning achievement" in obtaining a $2.75 million settlement on behalf of a civil rights plaintiff resulted in no less than three distinct lawsuits against him.
Lawsuit number one: No sooner had Root obtained the multi-million dollar settlement for his client, Farideh Jalali, than she sued him for legal malpractice based upon allegedly incorrect tax advice. (Jalali v. Root (2003) 109 Cal.App.4th 1768.) She was disappointed with Root because she ended up paying taxes on both her recovery and the amount paid Root as his contingency fee.
Lawsuit number two: Root hired his old friend, Walter Greene, Jr., to defend him in Jalali's suit. Greene hired an expert, Mark Lipian, to help the defense at trial. Lipian ran up a big bill ($55,000) eight months before trial. Root had Greene fire Lipian and refused to pay the bill. Lipian sued Root.
Lawsuit number three: Lipian first brought Greene into his collection case against Root by naming Greene as a "Doe" defendant in response to Root's affirmative defense that Greene acted without authority in letting Lipian run up such. Greene then filed an independent action against Root for fraud, claiming that Root duped him into taking the Jalali case by lying to him about certain facts.
This case involves lawsuit number three, between Root and his former defense attorney Greene. Root brought a motion to strike Greene's complaint as a SLAPP suit, which the trial court denied. (See Code Civ. Proc., ยง 425.16.)
We conclude that the motion should have been granted. Communications to your attorney in respect to exercising your right to defend yourself in court are within your constitutional right to petition the government for redress of grievances. And, because Greene's whole case depends entirely on the admissibility into evidence of statements protected by the attorney-client privilege -- with Root, not Greene as the holder of the privilege -- Greene cannot possibly prevail at trial unless Root waives or has waived the privilege he holds. It is clear he won't, and as we show below, he hasn't. The order of the trial court is therefore reversed with directions to enter judgment in favor of Root.
I. Facts
Walter H. Root represented Farideh Jalali in a suit against her former employer for racial discrimination and sexual harassment. Against the odds, Root succeeded in convincing the jury to award Jalali compensatory damages of $750,000 and to find the necessary malice, fraud or oppression to justify punitive damages. Jalali and her employer thereafter agreed to a settlement of $2.75 million for all claims, conditioned on confidentiality.
Root later advised Greene to note that this was the "crowning achievement" of his career. His crowning achievement came at a heavy price, however. As noted, three lawsuits against Root sprouted out of the underlying case. Jalali sued him for legal malpractice, his expert witness in the malpractice action sued him for unpaid fees, and Greene himself, his attorney in the malpractice action, sued him for fraud.
The legal malpractice action reached us on appeal not long ago. In Jalali v. Root, supra, 109 Cal.App.4th 1768, we determined that Jalali failed to show any damages. More specifically, she failed to show that a recovery larger than the one she already had received was possible.
Walter Greene, Jr., a former close friend of Root, represented him at the trial level of the malpractice action. Given their close friendship, Greene agreed to take the case at a reduced hourly rate. He further agreed to del
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