Love v. State Dep’t of Ed., No. C086030 (D3 Dec. 6, 2018)
The Court of Appeal slaps down another constitutional challenge to the repeal of the personal belief exemption to child vaccination laws. The constitutionality of vaccination laws has been upheld by the California Supreme Court for over a hundred years. Of course, the Anti-Vaxers didn’t bother to cite any of those cases in their AOB. Ignoring controlling legal precedent is, it would seem, in the same genus of sophistry as ignoring overwhelming scientific consensus. Except that former Rule of Professional Conduct 5-200 (and, as of November 1, new Rule 3.3(a)(2)) says that attorneys don’t get to live in a legal land of their own creation. And the Court here, rightly, calls them out for it.
Affirmed.
Showing posts with label california rules of professional coduct. Show all posts
Showing posts with label california rules of professional coduct. Show all posts
Thursday, December 13, 2018
Monday, October 8, 2018
Vicarious Conflicts
Fluidmaster, Inc. v. Fireman’s Fund Ins. Co., No. G055469 (D4d3 Jul. 24, 2018)
Firm’s OC office is defending Insurance Carrier in some coverage litigation. Attorney A worked on the other side of case as a manager for Plaintiff’s e-discovery vendor. Attorney A subsequently got hired by Firm’s LA office. She was asked about conflicts, and screened from the coverage dispute. Firm informed Plaintiff of the hiring and the screen.
Plaintiff successfully moved to DQ Firm. But while appeal was pending, A left Firm. And (based on supplemental briefing) there’s no evidence that A actually shared any confidential information she obtained in her prior employment.
The court assumes that acting in the capacity as an attorney for a client’s e-discovery vendor is enough to potentially create a conflict. So the question is whether the screen was effective, particularly given A’s departure from the firm before the appeal was decided.
Vicarious disqualification generally isn’t the rule in California. But even setting that aside, a prior case—Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (2010)—specifically addresses the situation where a conflicted attorney quickly leaves. The pertinent question is: Did she spill the beans while there? And in connection with that, the court needs to consider the efficacy of any screening put in place. And that requires an assessment of seven different factors, which are set out in Kirk.
Since none of that analysis was done by the trial court, the case gets sent back for it to be done in the first instance.
Reversed and remanded.
Firm’s OC office is defending Insurance Carrier in some coverage litigation. Attorney A worked on the other side of case as a manager for Plaintiff’s e-discovery vendor. Attorney A subsequently got hired by Firm’s LA office. She was asked about conflicts, and screened from the coverage dispute. Firm informed Plaintiff of the hiring and the screen.
Plaintiff successfully moved to DQ Firm. But while appeal was pending, A left Firm. And (based on supplemental briefing) there’s no evidence that A actually shared any confidential information she obtained in her prior employment.
The court assumes that acting in the capacity as an attorney for a client’s e-discovery vendor is enough to potentially create a conflict. So the question is whether the screen was effective, particularly given A’s departure from the firm before the appeal was decided.
Vicarious disqualification generally isn’t the rule in California. But even setting that aside, a prior case—Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (2010)—specifically addresses the situation where a conflicted attorney quickly leaves. The pertinent question is: Did she spill the beans while there? And in connection with that, the court needs to consider the efficacy of any screening put in place. And that requires an assessment of seven different factors, which are set out in Kirk.
Since none of that analysis was done by the trial court, the case gets sent back for it to be done in the first instance.
Reversed and remanded.
Friday, September 7, 2018
He Who Represents Everyone, Represents No One.
Bridgepoint Constr. Svcs., Inc. v. Newton, No. B283239 (D2d6 Sept. 4, 2018)
This is some kind of a construction finance dispute between two companies and their various principals. It’s all one big fight over basically the same $2 million pot of money. At first, Attorney represented the whole plaintiff side. But then some inter-plaintiff adversity came up and his representation dwindled to a single individual. But Attorney still represents the Company in a related case in Arizona.
Company moves to DQ Attorney, arguing: (a) there’s current client conflicts because Attorney both represents the Company in Arizona and is adverse to the Company in this related matter; and (b) there’s past client conflicts because, before Attorney withdrew to his individual client, his group representation made him privy to some of the Company’s confidential information regarding the dispute. Both theories are correct, and there are, apparently, no waivers in any of the retainer agreements. Which means that Attorney now doesn’t represent anyone at all.
Affirmed.
This is some kind of a construction finance dispute between two companies and their various principals. It’s all one big fight over basically the same $2 million pot of money. At first, Attorney represented the whole plaintiff side. But then some inter-plaintiff adversity came up and his representation dwindled to a single individual. But Attorney still represents the Company in a related case in Arizona.
Company moves to DQ Attorney, arguing: (a) there’s current client conflicts because Attorney both represents the Company in Arizona and is adverse to the Company in this related matter; and (b) there’s past client conflicts because, before Attorney withdrew to his individual client, his group representation made him privy to some of the Company’s confidential information regarding the dispute. Both theories are correct, and there are, apparently, no waivers in any of the retainer agreements. Which means that Attorney now doesn’t represent anyone at all.
Affirmed.
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