No Soul to Damn, No Body to Kick, and No Authority to Hire

Jarvis v. Jarvis, No. H044930 (D6 Mar. 19, 2019)

Interesting DQ question. It’s unusual in that it is about a conflict of authority, not a conflict of interest. 

No Bar Doesn't Bar DQ

O’gara Coach Co. v. Ra, No. B268730 (D2d7 Jan. 7, 2018)

This is kind of a tricky one. Attorney went to law school but didn’t take the bar. He eventually became the CEO of a Company that is the defendant in this case. Company doesn’t have a GC, but because of his law training, one of (then unlicensed) Attorney’s responsibilities is in interacting with Company various outside counsel. 

DQ Is an Equitable, Not Per Se, Standard

Antelope Valley Groundwater Cases, No. F078517 (D5 Dec. 20, 2018)

Firm represents two water districts. District 1 has been embroiled in a litigation for almost two decades. District 2—for which a Firm partner acted as outside general counsel—was originally not in that litigation. But it was eventually brought in, although it retained different counsel. For twelve years, Firm represented District 1 in the litigation and District 2 as its general counsel. The litigation resolved through a settlement that resulted in entry of judgment. A month later, District 2 terminated the GC relationship. And then six months after that, District moved to DQ Firm from representing District 1 in the litigation due to conflicts.  

Informed Consent Is Cruicial to a Conflicts Waiver

Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., No. S232946 (Cal. Aug. 30, 2018)

Back in 2016, the Court of Appeal vacated an arbitration award in an attorney fee arbitration, holding that a law firm’s retainer agreement (and the arbitration clause within it) was completely void under Rule of Professional Conduct 3-310(C)(3) due to an undisclosed conflict of interest. At the time the client engaged the firm, the firm was adverse to the client in an unrelated matter. Thus, notwithstanding the agreement’s general forward conflicts waiver, there was no informed consent because the actual conflict was not specifically disclosed. And that meant the law firm couldn’t get paid anything and had to disgorge what it had been paid to date. The Supreme Court granted review.

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.

Conflicts and the Pretend Partnership

Lynn v. George, No. G053563 (D4d3 Sept. 21, 2017)

This case presents an interesting quandary about how to deal with a scenario where the facts relevant to a motion to disqualify a lawyer substantially overlap with the merits of the case where the DQ motion is brought.

Conflicts and the Closely Held Corporation

Beachcomber Mgmt. Crystal Cove, LLC v. Superior Court, No. G054078 (D4d3 Jul. 28, 2017)

This case addresses the interpretation Rule of Professional Conduct 3-310—the rule on client conflicts—in the somewhat unusual context of a stockholder derivative action. 

Client Conflicts Confound Counsel on Class Claims

Walker vs. _________, No. D069713 (D4d1 Oct. 28, 2016)

Counsel represents plaintiffs in two wage-and-hour class actions against the same Employer. The class in the first case is certified. A non-exempt Employee who is a member of the class in Case #1 subsequently got promoted to an exempt position as a low-level manager. She’s now a potential Employer witness in this second—yet-to-be-certified—class case. Indeed, she fired some of the employees in Class #2. So Employer moves to DQ Counsel in Case #2 on the grounds that he might have to cross examine his own client. The trial court agreed.

Trouble with Clients, Present and Past

Ontiveros v. Constable, No. D066412 (D4d1 Mar. 14, 2016)

and

Costello v. Buckley, No. D068536 (D4d1 Mar. 16, 2016)

These are a pair of attorney disqualification appeals decided by Division One of the Fourth District in a three-day period last month.

Conflicts and the Dissolving Partnership

Coldren v. Hart, King & Coldren, Inc., No. G050202 (D4d3 Aug. 5, 2015)

Departing Partner in a 50/50 two-partner law firm sued his Firm and his Remaining Partner over the terms of his retirement. Firm and Remaining Partner sued back. Remaining Partner and Firm were represented in the litigation by the same Attorney, who had never previously represented Firm or Departing Attorney. Departing Partner brought a DQ motion, claiming that Attorney couldn’t represent both Remaining Partner and the Firm—in which Departing Partner continued to claim his 50 percent stake. After waffling on the tentative, the trial court granted the motion. 

But the court of appeal reverses. The decision rests on two grounds.

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.

With Adversaries Like this, Who Needs Client Conflicts?

Acacia Patent Acquisition, LLC v. Superior Court, No. G050226 (D4d3 Feb. 27, 2015)

This is a conflicts riddle much harder than anything on the MPRE. 

Vacating the Vacatur to Consider Missing Conflict Disclosures

United Health Centers of the San Joaquin Valley v. Superior Court, No. F067763 (D5 Aug. 25, 2014)

Due to apparent shoddy recordkeeping, the arbitrator in this case failed to disclose all of the conflicts information required by Code of Civil Procedure § 1281.9. The question is, whether the omissions from the disclosure were sufficient reason to vacate the arbitrator’s award. As the court here explains, that turns on an issue of waiver, which itself depends on whether the plaintiff had reason to know that the disclosures were incomplete when the arbitration commenced.

Time to Update that Resume . . .

Mt. Holyoke Homes, LP v. Jeffer Mangels Butler & Mitchell, LLP, No. B243912 (D2d3 Sept. 24, 2013)

In an appeal following the denial of a petition to vacate an arbitral award in favor of Jeffer Mangels in a legal malpractice case, the court finds that Jeffer Mangels’ arbitration clause in their retainer letter is enforceable and that arbitration was properly compelled. As to the petition to vacate, however, the court reversed. The arbitrator’s (apparently ten-year-old) Internet bio listed Robert Mangels (the Mangels in Jeffer Mangels) as a reference. But he didn’t disclose that in his mandatory disclosures of potential conflicts under Code of Civil Procedure § 1281.9(b). Because the arbitrator was required to disclose any information that could reasonably cause a person aware of the facts to entertain a doubt that the proposed arbitrator would be impartial, and because the court believed that the arbitrator’s use of Mangels as a reference met that standard, the fact of the reference should have been disclosed. Failure to do so merited vacating the arbitral award under § 1286.2(a)(6)(A). Reversed and remanded.