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7/16/2010

California Legal Ethics

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California Legal Ethics

1.10 Rule 1.10 Imputed Disqualification: General Rule

1.10:100

Comparative Analysis of CA Rule

¥ Primary California References: CRPC 3-310, 1-100, 3-320

¥ Background References: ABA Model Rule 1.10, Other

Jurisdic tions

¥ Commentary:

1.10:101

Model Rule Comparison

The ABA codes and the case law in every state are premised on the assumption that lawyers in the same firm will confer on their cases and exchange confidences. One inevitable consequence is Òimputed disqualificationÓ: If one lawyer in a Òlaw firmÓ is personally disqualified from handling a matter, the conflic t is imputed to all members of the firm. MR 1.10 states this general rule and applies it to the situation in which the lawyer handling the case has left the firm [MR 1.10(b)]. Imputed conflicts under MR 1.10 generally may be cured by client consent. But not all conflic ts of interest are imputed to other lawyers in the same firm. Conflic ts under other rules sometimes are imputed [i.e., MR 1.7, 1.8(c), 1.9 and 2.2] and sometimes are not [e.g., conflicts under MR 1.8 other than those under paragraph (c)]. Thus,

a disqualifying business interest of a lawyer under MR 1.8(a) or a spousal or family conflict

under MR 1.8(i) is not imputed to other lawyers in a firm, but a lawyerÕs partner cannot draft

an instrument containing a substantial gift to the lawyer [MR 1.8(c)] unless the affected client waives the disqualification of the lawyerÕs partner under the conditions stated in MR 1.7. The lawyer-witness rule [MR 3.7] does not prevent the firm from handling the representation, unless MRs 1.7 or 1.9 would be violated.

The CRPC contains no provision dealing with imputed disqualification. A deliberate decision was made to leave the matter to the developing case law. California decisions generally are consistent with MR 1.10, but in the absence of a rule, imputed disqualification in California will be decided on a case-by-case basis. See Rosenfeld Constr. Co. v. Superior Court (5th Dist. 1991) 235 Cal.App.3d 566, 286 Cal.Rptr. 609 (lawyer formerly representing the opposing party moved to a firm representing the adversary; firm was disqualified even though

it put screening

promptly into effec t).

Where a lawyer is personally disqualified under CRPC 3-310 from representing a client, the case law in California currently provides that any firm with which the lawyer is associated would likewise be disqualified. However, in a case currently pending before the California

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Supreme Court, People v. Speedee Oil Change Systems, Inc., (1997) Case No. S058631, one of the questions is whether this rule should be modified to permit appropriate screening to avoid such automatic disqualification.

1.10:102

Model Code Comparison

DR 5-105(D) provided that Ò[i]f a lawyer is required to decline or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.Ó

1.10.103 Definition of "Firm"

CRPC 1-100(B)(1) contains a definition of ÒLaw Firm.Ó However, the term ÒMemberÓ (defined in CRPC 1-100(B)(2)) is the defined term used in the conflict of interest provisions of CRPC 3- 310 and CRPC 3-320. The published cases dealing with conflicts of interest have not cited the definition of Òlaw firmÓ in CRPC 1-100 in applying the imputed disqualification rules. One unpublished case, citing CRPC 1-100(B)(1)(d), has held that a public defenderÕs office should be treated the same as a private law firm for purposes of conflicts of interest and that separate divisions within the same public defenderÕs office must be treated as part of the same Òfirm.Ó People v. Pinkins (5th Dist. 1990) 272 Cal.Rptr. 100 (not officially published). The Pinkins opinion contains a detailed discussion of the issue as it relates to public defenderÕs offices. See also (1976) 59 Ops.Cal.Atty.Gen. 27.

A public defenderÕs office and an alternate public defenderÕs office are separate ÒfirmsÓ for purposes of conflicts analysis. People v. Christian (1st Dist. 1996) 41 Cal.App.4th 986, 1000, 48 Cal.Rptr.2d 867, 875-876.

When a lawyer moved from a law firm which represented numerous criminal defendants to become a top ranking officer in county district attorneyÕs office, it was proper for the entire district attorneyÕs office (not just the individual attorney) to be recused from prosecuting any cases involving clients of the lawyerÕs former firm; in his new position the lawyer would have significant supervisorial functions with regard to other prosecutors. Younger v. Superior Court (2nd Dist. 1978) 77 Cal.App.3d 892, 144 Cal.Rptr. 34. However, for less highly placed lawyers in the distric t attorneyÕs office, one court was stated that vicarious disqualification rules applicable to private law firms were not applicable to a very large distric t attorneyÕs office, such as that in Los Angeles which had seven branch offices, 17 area offices, and 400 deputy district attorneys. In the Matter of Charles Willie L. (2nd Dist. 1976) 63 Cal.App.3d 760, 132 Cal.Rptr. 840).

Lawyers who are Òof counselÓ to a law firm may or may not be deemed part of the firm for purposes of applying conflict rules. The designation Òof counselÓ encompasses a myriad of different factual situations. In People v. Speedee Oil Change Systems, Inc. (1997) S058631 the Òof counselÓ shared office space and a receptionist with the ÒfirmÓ and worked on occasional matters with the Òfirm.Ó However, the Òof counselÓ paid his staff separately from the firm and billed his clients separately from the firm. The court concluded that, on these facts, the Òof counselÓ was not part of the firm. However, in In Re Mortgage & Realty Trust (Bankr. C.D. Cal. 1996) 195 B.R. 740, 755-756, another court concluded that an attorney who was designated Òof counselÓ must be treated as part of a law firm because CRPC 1-400 makes it a presumptive violation of the rule to designate a lawyer as Òof counselÓ unless the attorney has a relationship with the firm that is Òclose, personal, continuous, and regular.Ó

Where two lawyers hold themselves out to the public as a Òprofessional association,Ó using common letterhead and offices, they constitute a single law firm for conflic ts purposes. Soto v. State (2nd Dist. 1997) 56 Cal.App.4th 196, 65 Cal.Rptr.2d 11 (not officially published)

The sharing of office space and staff by separate attorneys has been recently addressed in C.O.P.R.A.C. Op. 1997-150. That opinion discusses the ethical issues arising when attorneys enter into arrangements to share office space or services, such as reception and

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California Legal Ethics

library facilities, maintenance staff, secretarial staff or paralegal staff, without forming a law firm. It assumed that the attorneys names are listed separately in the building direc tory, that each has his or her own stationary, business cards, retainer agreements and bank accounts and that each attorney only works on matters for his or her own clients. The opinion discusses two major areas: (1) communications by attorneys to the public and (2) protec tion of client confidential information. In footnote 4 the opinion specifically states that it does not address conflic t of interest issues under CRPC 3-310, indicating that conflic t of interest rules might apply to a shared office or staff situation depending on the fac ts.

1.10:200

Imputed Disqualification Among Current Affiliated Lawyers

¥ Primary California References: CRPC 3-310

¥ Background References: ABA Model Rule 1.10(a), Other

Jurisdic tions

¥ Commentary: ABA/BNA ¤ 51:2001, ALI-LGL ¤ 203, Wolfram ¤

7.6

Conflic ts of an "of counsel" attorney may be imputed to the law firm for which the attorney is of counsel. People v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 86 Cal.Rptr.2d 816.

The principles behind the rule on imputed disqualification have also been applied in situations where opposing counsel have commenced discussions for merging their legal practices. In Stanley v. Richmond (1st Dist. 1995) 35 Cal.App.4th 1070, 41 Cal.Rptr.2d 768 defendant attorney Richmond was sued by former client Stanley for a breach of fiduciary duty. One of the allegations was that Richmond, while representing Stanley in a marriage dissolution, had failed to properly disclose to Stanley that Richmond had entered into negotiations with opposing counsel to merge their law practices. The court held that, on the factual allegations, there was a conflict of interest requiring the written consent of Stanley.

Although an individual lawyer was disqualified for having improper communications with an opposing party, the disqualification did not extend to the offending lawyerÕs law firm. The disqualification rules for improper communications with opposing parties were not the same as for disqualification because of a conflic t of interest. Chronometrics, Inc. v. Sysgen, Inc. (2nd Dist. 1980) 110 Cal.App.3d 597, 168 Cal.Rptr. 196; Mills Land and Water Company v. Golden West Refining Company (4th Dist. 1986) 186 Cal.App.3d 116, 230 Cal.Rptr. 461.

Where a senior partner in law firm was disqualified from representing the plaintiff against a corporation as to which he owed a fiduciary obligation, the entire law firm must be disqualified. William H. Raley Co., Inc. v. Superior Court (4th Dist. 1983) 149 Cal.App.3d 1042, 197 Cal.Rptr. 232. The institution of screening procedures would not cure the situation.

Although normally a new lawyer to whom a matter is referred when the original lawyer discovers a conflic t is not disqualified on the basis of the original counselÕs conflict, that is not the case where there is a substantial likelihood that the second lawyer will receive confidential information regarding the client from the original lawyer or where the second lawyer participates in a breach of ethical duty by the original lawyer. In such a case, the second lawyer can be disqualified as well. In re California Canners and Growers (Bkrtcy.N.D.Cal. 1987) 74 B.R. 336.

Sharing by lawyers of investigative services, office space and support staff did not indicate insufficient independence from one another. Accordingly, the lawyers were treated as independent practitioners under CRPC 3-310(C) when representing co-defendants in a criminal trial. People v. Pastrano (4th Dist. 1997) 52 Cal.App.4th 610, 60 Cal.Rptr.2d 620.

Where an individual lawyer was disqualified from representing an client against a real estate

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investment trust on whose board of directors the individual lawyer had previously served as a direc tor, the disqualification extended to the lawyerÕs entire multi-state law firm. In Re Mortgage & Realty Trust (Bankr. C.D. Cal. 1996) 195 B.R. 740. Building an Òethical wallÓ would not cure the conflic t.

1.10:300

Removing Imputation by Screening

¥ Primary California References:

¥ Background References: ABA Model Rule 1.10, Other

Jurisdic tions

¥ Commentary: ABA/BNA ¤ 51:2001, ALI-LGL ¤ 204, Wolfram ¤

7.6

A few states permit screening as a cure to imputed disqualification of a law firm that otherwise may result when a personally disqualified lawyer joins a firm representing a party opposing the party the lawyer formerly represented. The ALAS table reproduced at p. 141 of the Morgan & Rotunda 1995 standards supplement, reports that 43 of 51 jurisdic tions Òdo not recognize screening of a tainted lawyer as a cure for imputed disqualification.Ó As the ALAS

table states, California has no ethics rule on this subject. Klein v. Superior Court (6th Dist. 1988) 198 Cal.App.3d 894, 244 Cal.Rptr. 226 (entire law firm disqualified by imputation when one member is disqualified for a conflict of interest) provides a comprehensive but somewhat confusing discussion of California decisions. The case suggests that a California court might approve screening provided the migratory lawyer had not ac tually worked on the affected clientÕs matter while at the previous firm. A later case, Henriksen v. Great American Savings & Loan (1st Dist. 1992) 11 Cal.App.4th 109, 14 Cal.Rptr.2d 184, held that screening will not save the entire second firm from disqualification if the moving lawyer brings any confidential information about the case. That is the same position as is stated in MRs 1.9(b) and 1.10(a). See also Rosenfeld Construction Company, Inc. v. Superior Court (5th Dist. 1991) 235 Cal.App.3d 566, 577, 286 Cal.Rptr. 609, 615; In re Jaeger (Bankr. CD Calif. August 26, 1997), No. LA 95-29915 SB, 1997 WL 566776. See 1.10:200 and 1.12:400. The California Supreme Court left the door open for screening in dictum in People v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 86 Cal.Rptr.2d

816.

The use of internal screening procedures or Òethical wallsÓ to avoid conflicts between a public defenderÕs office and an alternate defenderÕs office was effec tive to avoid conflicts of interest between such offices. People v. Christian (1st Dist. 1996) 41 Cal.App.4th 986, 998, 48 Cal.Rptr.2d 867, 875.

1.10:400

Disqualification of Firm After Disqualified Lawyer Departs

¥ Primary California References:

¥ Background References: ABA Model Rule 1.10(b), Other

Jurisdic tions

¥ Commentary: ABA/BNA ¤ 51:2008, ALI-LGL ¤ 204, Wolfram ¤

7.6.3

The fac t that an associate in a law firm several years previously had prepared certain real estate documents with regard to a real estate projec t was not substantially related to a subsequent lawsuit in which the law firm was representing an opposing party to the real estate developer. In addition, the associate in the law firm had left the firm and taken the file with her before the present lawsuit was commenced. Kirk Corporation v. First American Title Company (3rd Dist. 1990) 220 Cal.App.3d 785, 270 Cal.Rptr. 24 (former CRPC 4- 101 (1975)).

[See also 1.9:200 Representation Contrary to Interest of Former Client, infra for discussion of Elan Transdermal Ltd. v. Cygnus Therapeutic Systems (N.D. Cal. 1992) 809 F.Supp.

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1383 (patent infringement ac tion) in 1.9:200 Representation Contrary to Interest of Four Client-I-General].

1.10:500

Client Consent

¥ Primary California References:

¥ Background References: ABA Model Rule 1.10(c), Other

Jurisdic tions

¥ Commentary: ABA/BNA ¤ 51:2001, ALI-LGL ¤ 202, Wolfram ¤¤

7.2, 7.3

If informed client consent is sufficient to waive a conflict with respect to the individually disqualified lawyer, a fortiori informed client consent should be sufficient to waive an imputed disqualification of the entire firm.