I have another story for you, my dear readers, from Texas.  Now, before you close your laptops, turn away from your screens, or shake your fist at the sky while cursing the name of your humble blogger in the language of your forefathers, I ask that you consider the story from the Lone Star State to compare and contrast, as we all did in grade school, with our quiet world of California workers’ compensation.

Comp is an interesting balance for attorneys in terms of where loyalties lie.  After all, some attorneys represent self-insured employers, and in those cases do not encounter any sort of gap between the employer and the workers’ compensation insurer.  Other lawyers represent workers’ compensation insurers, and not necessarily the employer.

A recent opinion handed down by the Texas Supreme Court holds that there is no attorney-client privilege between the workers’ compensation defense attorney and the insured employer.  In that case, the Supreme Court of Texas (or Scot) held that when an attorney sends regular updates to the employer, third-party administrator, and insurance company as to the proceedings in a case, the communications to the employer are not privileged.  Your humble blogger reached out to a nearby Texan for his reaction:

  Perhaps he was an applicant’s attorney?

So imagine that: your humble blogger sits comfortably in his office in Texas (I did say “imagine,” I haven’t closed shop and moved out on all y’all just yet), with cowboy boots on his desk and an (awesome) cowboy hat on his workers’-compensation-focused-head.

As he dreams of what life must be like in San Francisco, his insurance company client comes in and the two discuss everything under the sun about a particular case.  Then, not fifteen minutes after the insurer client leaves, the employer from the same case, still holding the insurance policy in its hand, comes in to discuss the injury, the nature of the return-to-work program, etc.  The conversation with the insurer is privileged and the conversation with the employer is not.

Furthermore, the very impressions, thoughts, strategies, etc. when put on paper and sent to both the insurer and employer would be discoverable.  And your humble attorney, after politely commenting to applicant’s counsel that he likes his “lawyer jeans” and then tells his client that jeans aren’t really appropriate for the Board (you know who you are!) will have more explaining to do.

California’s take on this question is… well… different.  For example, in the Court of Appeal case of Gregory Martin v. Workers’ Compensation Appeals Board (1997) the Court of Appeal held that when an employee speaks to the workers’ compensation defense attorney as a representative for the corporation/business, then the communication may be privileged.  However, when an employer simply instructs an employee to provide a witness statement, the communication is not.

So, at least in theory, when the attorney speaks or writes to the employer as opposed to a particular officer employed by the employer, the communication should be privileged.