Judge Bruce G. Iwasaki, Case Number: 21STCV35534, Date: 2024-09-11 Tentative Ruling

Tentative Ruling: The Motion to Disqualify Claudia Borsutzki and Friedman & Chapman is granted.

This case arises out of allegations by Plaintiff tenant that Defendant landlord and property manager failed to maintain habitable conditions in Plaintiff’s dwelling. On July 3, 2024, Defendant Cedar Green LLC filed a Motion to Disqualify Plaintiff’s Counsel because of a conflict of interest. Defendant contends that Plaintiff’s counsel Claudia Borsutzki (Borsutzki), who now works for Friedman & Chapman, LLP (Friedman & Chapman), previously represented Defendant in this matter and was privy to privileged information.

Plaintiff’s attorneys oppose the motion, minimizing Borsutzki’s involvement in the action when she represented Defendant.

California Rules of Professional Conduct, rule 1.9 provides that absent consent, a lawyer cannot represent a party in the same matter in which she represented the adverse party and acquired confidential information:

“A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent.” (Cal. Rules Prof. Conduct, rule 1.9 (b).)

Disqualification based on former representation requires a showing of a prior fiduciary relationship between the attorney and the party seeking disqualification in which confidential information was or may have been disclosed to the attorney. (Tuft, et al, Cal. Practice Guide: Prof. Resp. & Liability (The Rutter Group 2024) ¶ 4:161.)

From December 2019 to May 2024, Borsutzki was employed at Wood Smith Henning & Berman LLP. (Borsutzki Decl. ¶¶ 3-4.)[1] In November 2022, she became Defendant’s attorney of record in this action. (Ibid.) While so employed on behalf of Defendant, Borsutzki negotiated a potential early settlement with attorneys at Friedman & Chapman. (Id. ¶ 7.) She states that “[o]n January 9, 2024, she went on maternity leave without any further involvement in this matter.” (Id. ¶ 13.) In June 2024, she left Wood Smith and began working for Plaintiff’s firm Friedman & Chapman (Id. ¶ 14.) Before beginning her employment with Friedman & Chapman, she states that a conflict check was conducted and she was completely screened off the Reyes v. Cedar Green file. (Id. at ¶ 16.) Other than discussing the instant Motion to Disqualify, she states that she has not discussed this matter with anyone at Friedman & Chapman and she remains completely screened off the file which is saved on a separate server. (Id. at ¶ 17.) Moreover, she states, “[t]o the best of my knowledge and belief, I never reviewed or even received any confidential and/or privileged documents from Defendant. I only reviewed the documents available on the Court docket, specifically the Complaint and the Default Prove-up Package. I may have drafted the Answer to the Complaint along with some initial discovery. However, that did not require my review of any confidential or privileged documents and/or discussion with the Defendant.” (Id. at ¶ 12.)

As an initial matter, Borsutzki’s declaration, based on information and belief, fails to set forth personal knowledge required to be admissible as evidence. (Kellett v. Kellett (1934) 2 Cal.2d 45, 48 [“affidavit made upon information and belief is hearsay and no proof of the facts stated therein”].) It is particularly vague about the purported conflict check and the details of the alleged ethical screen. Her disavowals are given no credence.

Moreover, it is undisputed that neither Borsutzki nor Friedman & Chapman sought or obtained a written consent waiver from Defendant.

“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.” [citations omitted.] (Tuft, et al, Cal. Practice Guide: Prof. Resp. & Liability (The Rutter Group 2024) ¶ 4:199.) Here, Borsutzki was Defendant’s counsel and negotiated early settlement for this very matter. These facts support the presumption that she obtained confidential information.

Thus, the Court disqualifies Claudia Borsutzki from representing Plaintiff. The Court next analyzes whether Friedman & Chapman should be disqualified.

When an attorney is disqualified by a conflict of interest based on an earlier representation, the attorney’s entire law firm may be vicariously disqualified as well. Generally, subject to exceptions inapplicable here, “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rule 1.7 or 1.9.” (Rules Prof. Conduct, rule 1.10(a).)

The vicarious disqualification rules are based on the assumption “that attorneys, working together and practicing law in a professional association, share each other’s, and their clients confidential information.” (City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847-848; see Tuft, et al, Cal. Practice Guide: Prof. Resp. & Liability (The Rutter Group 2024) ¶ 4:203.)

The Court disqualifies Friedman & Chapman. The firm has submitted insufficient evidence to overcome the assumption that Borsutzki obtained and shared with Plaintiff’s law firm confidential information learned while she was the lawyer for Defendant. Borsutzki declares that she was screened off from the Reyes v. Cedar Green file and has not discussed this matter with anyone at Friedman & Chapman. (Borsutzki Decl. ¶¶ 16-17.) However, a generalized declaration that the attorney had not discussed the case with the new law firm is insufficient. (People v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4^th 1135, 1151-1152, fn. 5 (SpeeDee). Neither Borsutzki nor Friedman & Chapman’s management provided any details as to the timing and extent of the purported ethical screen.

In SpeeDee, supra, our Supreme Court concluded that, “[w]here an attorney successively represents clients with adverse interests, and where the subjects of the two representations are substantially related, the need to protect the first client’s confidential information requires that the attorney be disqualified from the second representation. [Citation.] For the same reason, a presumption that an attorney has access to privileged and confidential matters relevant to a subsequent representation extends the attorney’s disqualification vicariously to the attorney's entire firm.” (SpeeDee, supra, 20 Cal.4th at p. 1146.) Here, Borsutzki served as Defendant’s counsel from November 2022 until May 2023 and negotiated an early settlement which suggests confidential information was shared.

Based on the evidence submitted, the Court disqualifies Friedman & Chapman from serving as Plaintiff’s counsel in this matter.

Defendant’s motion to disqualify Borsutzki and Friedman & Chapman from representing Plaintiff is granted.

[1] Borsutzky’s declaration states she left Defendant’s firm in May 2023 and May 2024. (Borsutzki Decl. ¶¶ 3, 14.) Because of her references to maternity leave and when she commenced work with her new firm, it appears that 2024 is the more plausible year.

Department 58