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. 

In that role Attorney learns confidential and privileged information about misconduct by R, a company employee, in connection with his dealings with a Customer of the Company. Attorney is privy to Company’s strategy in defending against those allegations, which presumably includes some effort to shift blame onto R.

Eventually both R and Attorney get canned. Attorney takes the bar and starts up a solo practice. Customer sues Company and R. R cross-claims against Company for indemnification and various torts related to his termination. Attorney then attempts to substitute in to represent R in the litigation.

That doesn’t work. But not for the obvious reasons.

If Attorney had an attorney-client relationship with the Company while employed there, the successive representation of R would be clearly barred by former Rule of Professional Conduct 3-310(e) (which as of November 1, 2018 became Rule 1.9) since there’s a substantial relationship between the two matters. But if there was no representation, the letter of these rules don’t apply.

Cases have also upheld DQs, however, when an attorney gets an adversary’s privileged information through some channel other than a prior representation. Like hiring an opponent’s former expert, or obtaining and using privileged material that was inadvertently produced in discovery. This is just another one of those scenarios. Attorney got the Company’s privileged take on R in his former capacity as CEO. It would be improper to permit him to use that information in his current capacity as an attorney representing someone else with adverse interests in a substantially related matter. 

Reversed.