Thursday, July 23, 2015

Some Limits in the Ethical Wall

Castaneda v. Superior Court, No. B259950 (D2d8 Jun. 24, 2015)

L.A. Superior Court runs a mediation program called CRASH, where two volunteer attorney referees, assisted by a settlement judge, try to work out settlements in employment cases. To plaintiff’s displeasure, six months after a CRASH mediation where his counsel allegedly disclosed confidential strategies to the panel, one of the attorney volunteers’ partners substituted in as counsel for the defendant. Nobody disputes that the volunteer would be DQed from the case. The issue is whether the conflict should be vicariously imputed to her partner. The trial court held that, regardless of whether confidential info had been disclosed, an ethical screen-off of the volunteer would be sufficient to impute any conflict. Plaintiff took a writ.

Given the significance of California in the legal market and the number of large firm with a presence here, one would think that there’s relatively deep precedent on conflicts and the efficacy of screening. Wrong. The California case-law is eerily thin on when ethical screens can be effective to avoid imputing conflicts between lawyers within a firm. The Supreme Court has expressly punted on the issue, and there are a handful court of appeal cases that suggest, more or less, that screens work. Sometimes.

On the other hand, California law can be rather emphatic on when screening isn’t effective. One of those situations is when a judge who obtained ex parte* confidences from a party retires and moves to a firm. The interest of the integrity of the judicial process and matters of public trust mandate that screening—no matter how scrupulous—can never be effective to permit the judge’s firm to avoid vicarious conflicts. The court finds that rule applies here, even though the volunteers were not themselves judicial officers in any relevant sense. On that point, the court notes that the volunteers might be referees, and the Cannons of Judicial Ethics regarding lawyers acting as referees invoke the same interests that apply to actual judges.

But in any event, even for judicial officers and their ilk, the automatic vicarious conflict rule applies only if the judge/referee obtained ex parte information when acting in that capacity.** Trial court never made any definitive findings on that account, so it will need to do so to resolve this issue.
Writ granted with instructions.

*N.B. Real ex parte (i.e., in camera), not California ex parte.

**This seems to implicitly suggest that judges who join firms can be effectively screened over matters in which they presided in an ordinary judicial capacity, provided they weren’t privy to ex parte information.

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