Judge Bruce G. Iwasaki, Case 20STCV26815 2022-10-18 Tentative Ruling

On July 16, 2020, Christopher Davis (Plaintiff) sued the County of Los Angeles (Defendant) for race discrimination and failure to prevent discrimination or harassment. Plaintiff alleges that Defendant failed to promote him to Captain with the County of Los Angeles Fire Department because he is African American.

Plaintiff, through his counsel, Steven H. Haney (Haney) of Haney & Shah, LLP (Haney Firm), moves to disqualify the Defendant’s counsel, Peterson Bradford Burkwitz (Peterson Firm). Haney contends that there is a conflict of interest because the Peterson Firm recently hired an attorney, John Young (Young), who was previously employed at the Haney Firm. Young reportedly worked on this case at the Haney Firm and was privy to attorney-client communications, work product, and litigation strategies.

The Peterson Firm opposes the motion to disqualify. It argues that Young was hired for medical malpractice cases only, is not “directly or indirectly” participating in any of Defendant’s cases, and a proper ethical screen was created. It also contends that litigation has been ongoing for over two years, with extensive discovery being exchanged. Finally, they argue there are no specific allegations on what Young was exposed to while at the Haney Firm.

Haney replied, providing a supplemental declaration with billing entries that Young purportedly made while he was with the Haney Firm. He also argues that the ethical wall is insufficient under the factors delineated in Kirk v. First American Title Insurance Co. (2010) 183 Cal.App.4th 776 (Kirk).

Plaintiff’s request for judicial notice is denied. The request relates to a separate motion to disqualify Defendant’s firm in a different case. The motion is not file-stamped, nor has it been ruled upon. Plaintiff has failed to provide sufficient information. (Evid. Code, § 453, subd. (b).)

Defendant’s objections to Plaintiff’s reply and attached exhibits are overruled. Defendant claims that the exhibits are “fraud,” which is not an evidentiary objection, and is an accusation made without evidence.

Both firms provided vague declarations. However, the Haney Firm produced billing entries that create a strong presumption that Young worked on this very case. While there may not have been a direct and personal relationship between Young and Plaintiff, Young likely acquired confidential information that is material to the current case. Thus, Young is disqualified, and this disqualification is imputed to the Peterson Firm, which has not made a sufficient showing that an ethical screen was properly imposed.

The court’s authority to disqualify an attorney derives from the court’s inherent power to control the proceedings before it. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil).) In that case, our Supreme Court identified the considerations that this court must take into account in a motion for disqualification: (1) a client’s right to chosen counsel; (2) an attorney’s interest in representing a client; (3) the financial burden on a client to replace disqualified counsel; (4) the possibility that tactical abuse underlies the disqualification motion; (5) the need to maintain ethical standards of professional responsibility; and (6) the preservation of public trust in the scrupulous administration of justice and the integrity of the bar. (Id. at pp. 1144-1145.)

Motions to disqualify counsel generally concern a conflict between the client’s right to choose his or her legal representative and the need to maintain ethical standards of professional responsibility. In reviewing disqualification motions, the court’s primary concern is “to preserve public trust in the scrupulous administration of justice and the integrity of the bar,” and in certain circumstances, the client’s right to his or her counsel of choice “must yield to ethical consideration that affect the fundamental principles of our judicial process.” (Id. at pp. 1145-1146.) The purpose of disqualification is not punitive but prophylactic, meaning that the primary issue on any such motion is “whether there is a genuine likelihood that allowing the [tainted] attorney to remain will affect the outcome of the proceedings before the court.” (Kirk, supra, 183 Cal.App.4th at p. 815.)

Disqualification motions may arise if an attorney successively represents clients with adverse interests, which implicates the attorney’s duty of confidentiality to the former client. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283.) Courts evaluate whether there is a “‘substantial relationship’ between the subjects of the antecedent and current representations.” If so, a presumption arises that the attorney had access to confidential information in the first representation that is relevant to the second representation and disqualification is mandatory. (Ibid.; Kirk, supra, 183 Cal.App.4th at pp. 796-797.)

“[W]hether an attorney should be disqualified in a successive representation case turns on two variables: (1) the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation, and (2) the relationship between the attorney and the former client with respect to the legal problem involved in the former representation.” (Jessen v. Hartford Casualty Insurance Co. (2003) 111 Cal.App.4th 698, 709 (Jessen).)

Thus, the threshold inquiry focuses on two tests, which depend on “whether the attorney’s representation of the former client was ‘direct and personal’ or ‘peripheral [and] attenuated.’” (Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 479 (Fiduciary Trust), quoting Jessen, supra, 111 Cal.App.4th at pp. 710–711.)

“If the relationship between the attorney and the former client is shown to have been direct – that is, where the lawyer was personally involved in providing legal advice and services to the former client – then it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship.” (Jessen, supra, 111 Cal.App.4th at p. 709.) In such a relationship, “disqualification will depend upon the strength of the similarities between the legal problem involved in the former representation and the legal problem involved in the current representation.” (Ibid.) If a direct relationship is shown, the courts will conclusively presume the attorney “acquired confidential information relevant to the current representation if it is congruent with the former representation.” (Ibid.)

Conversely, if the “former attorney-client relationship was peripheral or attenuated instead of direct, then the presumption will not be applied in the absence of an adequate showing that the attorney was in a position vis-a-vis the client to likely have acquired confidential information material to the current representation.” (Id. at p. 710.)

As to the nature and extent of the attorney’s involvement in the prior representation, courts consider the “‘similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney’s involvement with the cases. As part of its review, the court should examine the time spent by the attorney on the earlier cases, the type of work performed, and the attorney’s possible exposure to formulation of policy or strategy.’” (H.F Ahmanson & Co. v. Salomon Bros. Inc. (1991) 229 Cal.App.3d 1445, 1455.)

If a substantial relationship is shown, the Court presumes access to confidential information and must disqualify the attorney. (Flatt v. Superior Court, supra, 9 Cal.4th at p. 283.) Disqualification is normally extended vicariously to the entire firm. (Ibid.; SpeeDee Oil, supra, 20 Cal.4th at p. 1139.)

There is no dispute that the interests of Plaintiff Christopher Davis and Defendant County of Los Angeles are materially adverse in this litigation given that the former is suing the latter. Rather, one issue here is the extent of the relationship between attorney Young and Plaintiff Davis.

“The party seeking disqualification has the burden to establish the attorney-client relationship.” (Lynn v. George (2017) 15 Cal.App.5th 630, 638.)

There is a direct and personal relationship if the attorney was “involved personally and directly in providing legal advice and services to the former client.” (Faughn v. Perez (2006) 145 Cal.App.4th 592, 602.) For example, an attorney that “personally provided estate planning legal services” to his client or “personally engaged in discussions” to the lawsuit has a “direct and personal relationship” with the client. (Fiduciary Trust, supra, 218 Cal.App.4th at pp. 407-408; Med-Trans Corp., Inc. v. City of California City (2007) 156 Cal.App.4th 655, 666; see also Farhang v. Indian Inst. of Tech. (N.D.Cal. Oct. 27, 2009, No. C-08-02658 RMW) 2009 U.S.Dist.Lexis 103776, *6-7 [direct communication regarding employment agreement negotiation and formation of a new entity].)

Here, Haney’s submitted declaration in support of the motion to disqualify alleges, in generalities, that Young “represented and billed H&S’s clients, including, but not limited to Davis.” Haney further avers that he “taught [Young] what services to render for the clients and how to render those services” and that Young had “access to all client files.” (Haney Decl., ¶ 4.)

In opposition, Young averred that he “was never assigned to work on this matter and did not work on this matter” and that he is “unaware of the facts or allegations in this case.” (Young Decl., ¶ 3.) Further, he “never accessed the files for this matter or spoke with the Plaintiff.” (Id. at ¶ 4.)

In reply, Haney provided two billing entries indicating that the initials “JPY” billed a total of 2.5 hours on the “Davis v. COLA” case on two separate dates: On June 9, 2022, for 0.5 hours for “Conference with SHH re Davis case” and on June 10, 2022, for 2.0 hours on the same file for “Review of Davis litigation file.” (Haney Supp. Decl., ¶¶ 3-4, Exs. 1, 2.) Haney avers that on June 9, he met with Young and provided him “attorney work product protected assignments and information in this matter.” (Id. at ¶ 3.) The next day, Young allegedly reviewed the file, which is “replete with attorney-client protected communications and correspondence, lawyer work product protected legal research and memoranda, internal firm communications, and drafts of documents.” (Id. at ¶ 5.)

Haney’s declaration is mostly predicated on an “access to information” argument, which has been held to be insufficient to show a substantial relationship. (See Ochoa v. Fordel, Inc. (2007) 146 Cal.App.4th 898, 910-911 (Ochoa) [discussing “access to confidential information” in the context of an attenuated attorney-client relationship]; see also Elliott v. McFarland Unified School District (1985) 165 Cal.App.3d 562, 572 [conclusory declaration insufficient and counsel should provide some context as to what was revealed].) Haney’s declaration is too vague to establish that attorney Young had a direct and personal relationship with client Davis.

The billing entries provide some specificity; however, Haney does not contend that Young ever communicated with the client or personally imparted legal advice to him. In fact, Haney does not state that Young provided legal advice to Davis at all or had any role in strategy or recommendations. Haney admits that he provided direction to Young as to instructions and assignments. (Haney Supp. Decl., ¶ 3.) The scope and detail of these assignments are unclear. The evidence shows only that Young billed 2.5 hours to the case, but half an hour was spent on a conference with Haney and two hours was spent on a review of the file. (See Victaulic Co. v. American Home Assurance Co. (2022) 80 Cal.App.5th 485, 510-511 [no direct relationship because challenged attorney worked under the senior partner, only “‘supervised day-to-day litigation work’, and was not involved in formulating overarching strategy] (Victaulic); cf. Farris v. Fireman’s Fund Insurance Co. (2004) 119 Cal.App.4th 671, 678 [finding a “personal and direct” relationship when the attorney worked for the client for 13 years, “actively participated” in the representation, and was “personally responsible for 27 percent of the work” that the client sent to the prior firm].) Thus, the Court does not find that Haney has met his burden to show a direct and personal relationship between Young and Davis.

Young was in a position to likely have acquired confidential information material to the current representation, even if the relationship with Davis was attenuated.

If Young’s contact with Davis was not direct and personal, the Court next turns to the modified substantial relationship test. “The court’s task, under these circumstances, is to determine whether confidential information material to the current representation would normally have been imparted to the attorney during his tenure at the old firm.” (Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1340 (Adams).)

This test applies if the case involves “(1) no proof that the firm-switching attorney actually obtained confidential information during the course of the prior attorney-client relationship; (2) the successive representation of clients with adverse interests; and (3) a firm-switching attorney whose prior attorney-client relationship with the moving party was peripheral or attenuated.” (Ochoa, supra, 146 Cal.App.4th at pp. 907-908, citing Adams, supra, 86 Cal.App.4th at p. 1340; Jessen, supra, 111 Cal.App.4th at p. 710.)

In Ochoa, defendant’s counsel (Jory Firm) moved to disqualify the plaintiff’s attorney, Bryant, and his firm (Smith Firm) because Bryant was previously employed with the Jory Firm at the time the case was filed. After Bryant resigned from the Jory Firm, he began work with the Smith Firm. The Jory Firm failed to produce any billing records to show Bryant worked on the case, though he had “access to all computerized records maintained by the firm” and an audit revealed that he accessed six documents created in connection with litigation on the case. (Ochoa, supra, 146 Cal.App.4th at p. 902.) The trial court denied the disqualification.

The Court of Appeal affirmed the denial of disqualification. The Court applied the “modified substantial relationship test,” which inquires “‘whether the attorney was reasonably likely to have obtained confidential information.’” (Id. at p. 908.) Three factors are considered: “‘(1) factual similarities between the two representations, (2) similarities in legal issues, and (3) the nature and extent of the attorney's involvement with the case and whether he was in a position to learn of the client’s policy or strategy.’” (Ibid.)

Once the test was met, the final step in the analysis shifts the burden to the challenged attorney to prove that “‘he had no exposure to confidential information relevant to the current action while he was a member of the former firm. [Citation.] That burden requires an affirmative showing and is not satisfied by a cursory denial.’” (Id. at pp. 908-909.) In addition, the Court held, merely alleging that an attorney had access to information is insufficient: “whether described as access to confidential information or as the opportunity to acquire confidential information, that factor alone is not a sufficient basis for finding or conclusively presuming that ‘confidential information material to the current representation would normally have been imparted to the attorney during his tenure at the old firm.’” (Id. at pp. 911-912.)

In Ochoa, while the Jory Firm made the initial showing, attorney Bryant carried his burden to show his lack of exposure to confidential information. His declarations were specific, averring that he did not speak about the case at various meetings and that the files he accessed did not contain any confidential information.

Other factors that a court may consider in deciding whether confidential information was reasonably likely to have been imparted to the attorney include “[1] the relationship, if any, between the attorney and the former client’s representation . . . [2] any time spent by the attorney working on behalf of the former client and [3] ‘the attorney's possible exposure to formulation of policy or strategy’ in matters relating to the current dispute . . . [4] whether the attorney worked out of the same branch office that handled the former litigation, and/or [5] whether his administrative or management duties may have placed him in a position where he would have been exposed to matters relevant to the current dispute.” (Adams, supra, 86 Cal.App.4th at p. 1340.)

Here, the three factors of the modified substantial relationship test are met. (Adams, supra, 86 Cal.App.4^th at p. 1332; Ochoa, supra, 146 Cal.App.4^th at p. 908.) Young’s prior work at the Haney Firm was on the same case as the present litigation. Both the factual and legal circumstances are identical. While the Court recognizes that “access to confidential information” alone is insufficient, Haney provided billing entries showing that Young consulted with a senior lawyer on the case and reviewed the litigation file for two hours. Thus, unlike Ochoa, this puts Young in a position to learn of client strategy. (Haney Suppl. Decl., ¶¶ 3-4, Exs. 1, 2.) This is sufficient to meet the initial burden.

Although Young avers that he never worked on this case at the Haney Firm, the Court is dubious of his declaration given the provided billing. The Court credits Haney’s Supplemental Declaration and discounts Young’s Declaration. As noted, Young had “the burden of proving that he had no exposure to confidential information relevant to the current action while he was a member of the former firm. That burden required an affirmative showing and is not satisfied by a cursory denial.” (Adams, supra, 86 Cal.App.4^th at p. 1341.) The entries fall within an undisputed date in which Young was employed at the Haney Firm. Young merely stated that he was “never assigned to work on this matter and did not work on this matter.”

Other factors also weigh in favor of a substantial relationship. While Young only performed limited work on the file, he nevertheless directly worked on the exact case currently being litigated. It is not clear whether Young worked in the same office, though the Declaration implies as such since Haney avers to directly working with Young. (Haney Decl., ¶ 4; Haney Suppl. Decl., ¶ 3.) And finally, even if Young’s review of the file was administrative, this likely still “placed him in a position where he would have been exposed to matters relevant to the current dispute.” (Adams, supra, 86 Cal.App.4th at p. 1340.)

The next step shifts the burden to Young to show he had no exposure to confidential information while with the Haney Firm. His mere denial is insufficient. Given Haney’s contradiction of Young’s contention that he never worked on the file, Young faces an uphill battle.

Young’s provided Declaration is general and vague, merely stating he was “never assigned to work on this matter and did not work on this matter”, and “never accessed the files for this matter or spoke with the Plaintiff.” (Young Decl., ¶¶ 3-4.) He does not provide a supplemental declaration to refute Haney’s provided billing entries. Without more, Young does not meet his burden.

Defendant’s cases are all distinguishable. In Khani v. Ford Motor Co. (2013) 215 Cal.App.4th 916, 921, disqualification was improper because even though the attorney was Ford’s defense counsel in numerous Song-Beverly cases, Ford could not show that the prior representation influenced the current representation. In other words, factual similarity was also required. Here, the cases are identical, factually and legally.

City of San Diego v. Superior Court (2018) 30 Cal.App.5th 457, 461-462 is also inapposite. That case involved improper disclosures to a government attorney in violation of the attorney-client privilege. Thus, the issue was whether disqualification of that attorney was appropriate, “even if the violation of the attorney-client privilege resulted in no actual disclosure of relevant information.”

Finally, Defendant’s reliance on Victaulic is misplaced. That case involved an analysis under the direct and personal relationship test. (Victaulic, supra, 80 Cal.App.5th at pp. 501-502.) Moreover, the focus of the conflict of interest issue in that case was on the challenged attorney’s work history with an entity that was related to the moving party in a former, separate representation. (Id. at p. 503.) Here, the issue is the same parties in the same litigation.

Since Young is prohibited from representing Defendant County of Los Angeles, the issue switches to whether his current employer, the Peterson Firm, is also disqualified.

“‘As a general rule in California, where an attorney is disqualified from representation, the entire law firm is vicariously disqualified as well. [Citations.] This is especially true where the attorney's disqualification is due to his prior representation of the opposing side during the same lawsuit.’” (California Self-Insurers’ Security Fund v. Superior Court (2018) 19 Cal.App.5th 1065, 1072 (Self-Insurers’ Security Fund).)

Under an extensive line of precedent, if the tainted attorney remains with the firm, then the entire firm is disqualified. (Kirk, supra, 183 Cal.App.4th at p. 814 [“if the tainted attorney was actually involved in the representation of the first client, and switches sides in the same case, no amount of screening will be sufficient, and the presumption of imputed knowledge is conclusive”]; Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 114-115 [“As a general rule in California, where an attorney is disqualified from representation, the entire law firm is vicariously disqualified as well . . . This is especially true where the attorney’s disqualification is due to his prior representation of the opposing side during the same lawsuit”]; Adams, supra, 86 Cal.App.4th at 1333 [“It is now firmly established that where the attorney is disqualified from representation due to an ethical conflict, the disqualification extends to the entire firm . . . at least where an effective ethical screen has not been established.”]; Dill v. Superior Court (1984) 158 Cal.App.3d 301, 306; National Grange of Order of Patrons of Husbandry v. California Guild (2019) 38 Cal.App.5th 706, 715.) Based on these cases, the Peterson Firm is automatically vicariously disqualified.

Recently, the Court of Appeal tempered the automatic disqualification rule, holding it should not apply against the whole firm if the tainted attorney no longer worked there and was only with the new firm for a brief period. (Self-Insurers’ Security Fund, supra, 19 Cal.App.5th at p. 1072.) In such a scenario, “automatic disqualification is not required, but is a presumption subject to rebuttal.” (Id. at p. 1079.) But that circumstance is inapplicable here. Young is still employed by the Peterson Firm. (See Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 115 [“[T]he ethical wall concept has not found judicial acceptance in California on our facts: a nongovernmental attorney armed with confidential information who switches sides during the pendency of litigation”].) However, even assuming that a rebuttable presumption standard applies – rather than the automatic disqualification rule – the Peterson Firm has still failed to meet its burden.

The Peterson Firm has not rebutted the presumption that the entire firm is tainted because it fails to provide sufficient evidence that a proper screen was implemented.

While vicarious disqualification of a tainted attorney’s firm is the general rule, the presumption may be rebutted in limited circumstances, such as through evidence of an effective, ethical screen.[1] (Kirk, supra, 183 Cal.App.4th at p. 801.) Once the moving party shows that an attorney has been tainted with confidential information, the “burden then shifts to the challenged law firm to establish ‘that the practical effect of formal screening has been achieved.’” The challenged firm must “satisfy the trial court that the [tainted attorney] has not had and will not have any involvement with the litigation, or any communication with any attorneys or []employees concerning the litigation, that would support a reasonable inference that the information has been used or disclosed.’” (Id. at p. 810.)

“The specific elements of an effective screen will vary from case to case, although two elements are necessary: First, the screen must be timely imposed; a firm must impose screening measures when the conflict first arises . . . Second, it is not sufficient to simply produce declarations stating that confidential information was not conveyed or that the disqualified attorney did not work on the case; an effective wall involves the imposition of preventive measures to guarantee that information will not be conveyed.” (Kirk, supra, 183 Cal.App.4th at p. 810.) “‘The typical elements of an ethical wall are: [(1)] physical, geographic, and departmental separation of attorneys; [(2)] prohibitions against and sanctions for discussing confidential matters; [(3)] established rules and procedures preventing access to confidential information and files; [(4)] procedures preventing a disqualified attorney from sharing in the profits from the representation; and [(5)] continuing education in professional responsibility.’” (Id. at pp. 810–811.)

The Court of Appeal in Kirk also noted an additional factor: that notice to the client should be given so that he or she may ascertain whether the firm complied with the Rules of Professional Conduct. (Id. at p. 813.) This requirement is reflected under ABA Model Rule of Professional Conduct 1.10(a)(2)(ii) and California Rule of Professional Conduct 1.10(a)(2)(iii).

Apart from timeliness and preventive measures, the other factors are not singularly dispositive. The focus is on “whether the court is satisfied that the tainted attorney has not had and will not have any improper communication with others at the firm concerning the litigation.” (Id. at p. 811.)

Here, assuming that Young could be effectively screened, the Peterson firm fails to show that it has done so. First, the ethical screen was not timely imposed. The firm advances the declarations of two named partners, Thomas R. Bradford and Avi Burkwitz, along with Young himself. Bradford and Burkwitz attest that after Haney notified them of the conflict, their office investigated the claim and determined that Young’s employment with the Haney Firm was less than a month, he had not been assigned any County cases at the Peterson Firm, and never engaged in any discussions about County cases. (Bradford Decl., ¶ 10; Burkwitz Decl., ¶ 13.) While the partners attest that the Young was barred from such matters once Haney informed them of the conflict, the Peterson Firm does not explain why a conflict check was not performed at the time of hire, especially because these firms are familiar with each other, “having litigated multiple cases against” each other over the past decade. (Burkwitz Decl., ¶ 13; Haney Decl., ¶ 2; The ethical wall should have been imposed when Young was hired. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 594 [“screening should be implemented before undertaking the challenged representation or hiring the tainted individual”] emphasis added.)

Second, prophylactic measures were not implemented, and at best, were insufficiently described. “It is not sufficient to simply produce declarations stating that confidential information was not conveyed or that the disqualified attorney did not work on the case.” (Kirk, supra, 183 Cal.App.4^th at p. 810.) The Peterson Firm declarations are vague, merely stating that Young “was barred from work on all County related matters,” that his access was restricted, and he was informed not to speak of County matters with anyone at the firm. (Bradford Decl., ¶ 11; Burkwitz Decl., ¶ 15; Young Decl., ¶ 11.) The Peterson Firm did not show that any written policies, procedures, or instructions were contemporaneously provided to staff. (See National Grange of Order of Patrons of Husbandry v. California Guild (2019) 38 Cal.App.5th 706, 721 [finding that an undated memo barring staff from communicating with the tainted attorney was insufficient because it was “not created contemporaneous with the imposition of an ethical wall”].) In fact, while the Declarations indicate that Young was informed not to speak of County matters with anyone at the firm, there is no evidence that other staff or attorneys at the Peterson firm were advised of Young’s conflict or instructed not to talk to him about the case. (See City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17, 27.) The Declarations fail to provide a “guarantee that information will not be conveyed.” (Henriksen v. Great American Savings & Loan, supra, 11 Cal.App.4th at p. 116, n.6 [conclusory declaration that nobody discussed the case with the tainted attorney and that the firm had “‘undertaken measures to ensure’” that the tainted attorney will not be exposed to confidential information are insufficient].)

Other factors weigh against a finding that the Peterson Firm implemented a timely and comprehensive ethical wall. None of the declarations indicate that Young was separated from the other lawyers or in a different office. (Kirk, supra, 183 Cal.App.4th at p. 811; Self-Insurers’ Security Fund, supra, 19 Cal.App.5th at p. 1078 [tainted attorney worked in a different office at the firm from the attorneys who actively worked on the case].) There are no details on the size of the firm and number of attorneys and their proximity to one another. Young was reportedly restricted from access to County files, but it is unclear what this means: are the files physically in a separate room kept under lock and key? Were warnings posted on the door? Are the computer files password-protected and is Young blocked from access? And again, there is a dearth of any written policies and procedures for other staff in the Peterson Firm relating to communications regarding this case. The Declarations are conclusory. (See Victaulic, supra, 80 Cal.App.5th 485, 508.)

Finally, there is no evidence that the Peterson Firm ever sent notice to Plaintiff Davis of Young’s hiring or at least attempted to obtain his written consent under California Rule of Processional Conduct 1.10(a)(2)(iii). While the Rules of Professional Conduct are not binding on the Court, the Rule and the corresponding comments are nevertheless persuasive.

In deciding whether disqualification is proper, the Court must also balance other considerations including “(1) a client's right to chosen counsel; (2) an attorney's interest in representing a client; (3) the financial burden on a client to replace disqualified counsel; (4) the possibility that tactical abuse underlies the disqualification motion; (5) the need to maintain ethical standards of professional responsibility; and (6) the preservation of public trust in the scrupulous administration of justice and the integrity of the bar.” (Kirk, supra, 183 Cal.App.4th at pp. 807-08.)

The Court recognizes there is some degree of prejudice to Defendant County of Los Angeles here. The litigation has been ongoing for over two years. However, this case is unlike Victaulic, supra, 80 Cal.App.5th at p. 513, in which the client would “suffer irreparable harm, as this case is ‘by far the single biggest, most costly and most important case [client] has had since . . . it concerns hundreds of millions of dollars of insurance that is at risk” and in which the law firm had “represented it for nine years.” Trial is still over five months away and this case is not a class-action or one that involves complex issues.

The Court also considers the reasonableness of the delay in bringing the motion, which includes the stage of litigation in which the motion to disqualify was brought and complexity of the case. (Antelope Valley Groundwater Cases (2018) 30 Cal.App.5th 602, 625.) There is no evidence to show that Haney brought this motion for tactical purposes. While the Peterson Firm argues that Haney accuses them of planting Young in the Haney Firm for “espionage” purposes, there is nothing to suggest that the Haney Firm is moving to disqualify after a significant amount of work was performed or some other similar circumstance. (SpeeDee Oil, supra, 20 Cal.4th at p. 1145, n.2.) Indeed, the conflict only arose after Young left the Haney Firm at the end of June 2022 and began work at the Peterson Firm in mid-July 2022. This motion was brought shortly after. Accordingly, any prejudice to Defendant is minimal and is outweighed here. As our Supreme Court explained: “The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” (SpeeDee Oil, supra, 20 Cal.4^th at p. 1145.)

“Disqualification is neither intended to be punitive nor formalistic.” (Self-Insurers’ Security Fund, supra, 19 Cal.App.5th at p. 1079.) But when an attorney representing a plaintiff against the defendant entity switches to the firm representing the entity, a conflict of interest is created, at least in appearance, if not in actuality. Such appearances and circumstances may erode “public trust in the scrupulous administration of justice and the integrity of the bar.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1145.)¿

Substantial evidence indicates that while at the Haney Firm, Mr. Young acquired confidential information about Plaintiff’s case. The Peterson Firm hired Young from a law firm to which it was often adverse, and has offered no evidence that it even inquired of Young concerning potential conflicts. The Peterson Firm did not impose an ethical screen when it hired Young and has offered no evidence of a policy or firm-wide communication as part of an ethical screen. It did not seek to notify Plaintiff Davis – through the Haney Firm – of Mr. Young’s switching sides. The Peterson Firm’s failure to take appropriate steps requires its disqualification.

Accordingly, the Court exercises its discretion and grants the motion to disqualify the Peterson Firm from representing Defendant County of Los Angeles in this case.

[1] As mentioned earlier, the tainted attorney in Kirk left the second firm, which changed the inquiry from a prospective inquiry to a retrospective one, i.e., whether confidential information was actually conveyed as opposed to the risk of it being transmitted. (Kirk, supra, 183 Cal.App.4th at pp. 815-816.)

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