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.