In re CHARLISSE C.,

Filed 4/23/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Story continued from Part II..

II. background

A. The Contracts

The center is a non-profit legal services organization which was created in 1989 by the County of Los Angeles to provide legal services to parents and children in the dependency court. The center was originally created under the name Dependency Court Legal Services, Inc. in order for the county to develop an economical and cost effective means to provide representation when legal services are required under Welfare and Institutions Code^[1]section 317. The legal services were subsequently provided by a contract between Dependency Court Legal Services, Inc. with the Los Angeles Superior Court. The January 22, 1990 agreement between Dependency Court Legal Services, Inc. and the Los Angeles County Board of Supervisors specifically recognized that conflicts would periodically arise when several parties to a dependency proceeding required independent counsel. As a result, the January 22, 1990 agreement required Dependency Court Legal Services, Inc. to maintain a structure which would allow up to three independent attorneys to be assigned to represent different parties in each proceeding.^[2] As previously noted, Dependency Court Legal Services, Inc. was later renamed as the center.

On July 1, 2005, the center contracted with the Administrative Office of the Courts to provide the dependency representation. Section B.2 of the July 1, 2005 agreement provides: [The center] will ensure that conflicts are declared after appointment only when an actual conflict exists and shall similarly accept new appointments consistent with conflict rules and laws. []  1. New Appointments: []  [The center] shall establish procedures to check for conflicts of interest, and shall decline appointment of new clients who present a conflict of interest with their present clients. []  2. Ongoing Clients: []  [The center] shall establish procedures to determine whether actual conflicts of interest arise among current clients, including within sibling groups, and shall advise the Court when such conflicts arise and seek to be relieved of appointment in such cases, when and if required by law. The aforementioned Operating Rules and Procedures from the January 22, 1990 agreement with the Los Angeles County Board of Supervisors were (see fn. 2, supra) not referenced in the July 1, 2005 contract with the Administrative Offices of the Court. As will be noted, at the time the disqualification motion was filed and ruled upon, the center was divided into three litigation units: a core unit, also referred to as unit 1; unit 2; and unit 3.

B. The Filing Of The Dependency Petition And The Detention Proceedings

On July 26, 2006, the Los Angeles County Department of Children and Family Services filed a dependency petition on behalf of the child. The petition alleged that the child, who had been born in July 2006, was at substantial risk of being abused or neglected because of the 19-year-old mothers emotional and mental health problems including significant depressive symptoms. The petition further alleged that, at the age of 14, the mother gave birth to a sibling, Donna C., born in January 2002, another child who had been adjudicated a court dependent. The older sibling, Donna, had ultimately been adopted by a grandparent. The detention report stated that the mother was a former foster youth. The mother admitted using marijuana and cutting her wrists. This occurred while the mother was pregnant with the child. The mother was described as defensive, angry, and withdrawn.

At the detention hearing on July 26, 2006, Katie Baca was appointed to represent the mother. Ms. Baca was formerly employed as an attorney by the center. Ms. Baca advised the juvenile court there was a conflict of interest in that unit 2 had previously represented the older sibling, Donna, who had been adopted by a grandparent. In response, the juvenile court then appointed Linda Jackson, from unit 3 of the center, to represent the child. Ms. Baca, the mothers counsel, then objected to Ms. Jacksons appointment on conflict of interest grounds. Ms. Baca argued: Based on the appointment of Ms. Jackson I would be objecting that theres a conflict of interest in that her firm should not be appointed to represent the new baby. In light of [City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847-854] that just came down which verified that the [Castro] model is the approved model for dependency court. I would indicate the [center] structure has been greatly changed and is in [an] amorphous stage, at this point, and that they are operating as one firm. []  And, in addition, the mother was a [center] client of unit one when she was a child herself and she is not waiving any conflict and I did go over that with mother. In fact, she was concerned about that issue herself. The juvenile court replied that there was no factual conflict of interest because: the mother had been previously represented by the centers unit 1; the older sibling, Donna, who had been adopted by a grandparent, had been represented by the centers unit 2; and the child would be represented by the centers unit 3. The juvenile court, however, noted that there was a possibility of a legal conflict.

C. The Papers Filed In Support And Opposition To The Disqualification Motion

1. Overview

I do not agree with the lead opinions synopsis of the facts. Therefore, because the present case involves an abuse of discretion standard of review, it is appropriate to set forth all of the facts presented by all of the parties. Thereafter, I will synthesize those facts which support the juvenile courts exercise of its discretion.

2. The moving papers

On August 18, 2006, the mother filed a written motion to disqualify the center and its unit 3 as counsel of record for the child. The mothers attorney, Ms. Baca, was a lawyer who formerly worked in unit 2 of the center. Ms. Baca left the center to work as a panel attorney. A panel attorney accepts appointments pursuant to section 317 and is not affiliated with the center. As noted, unit 3 of the center was appointed to represent the child. The mothers disqualification motion sought to require that the child be represented by an attorney not affiliated with the center. The notice of motion alleged, This motion is based upon the grounds that the [center] is operated as one law firm and represents clients with adverse interests, in violation of its ethical duties to its clients. In support of the motion, Ms. Baca filed a declaration which she subsequently withdrew. The juvenile court later explicitly stated it had not read Ms. Bacas declaration. Without Ms. Bacas declaration, the moving papers make very little sense. But many of the relevant facts are filled in by the other papers filed by the parties.

Allen Korenstein also filed a declaration, which was not withdrawn, in support of the mothers written disqualification motion. Mr. Korenstein was a former staff attorney with the Law Offices of Kenneth P. Sherman, which is the predecessor of unit 2 of the center. Mr. Korenstein was employed from May 17, 2004, through March 2006. He was employed there during the restructuring process which occurred while Miriam Krinsky was the executive director. Mr. Korenstein witnessed the transfer of a unit 2 secretary to unit 1 without any checks or screens. Because of the current merger of the three firms, unit 2 was forced to cover more courtrooms than it could competently handle. Mr. Korenstein requested that the unit 2 firm head approve funding for an expert witness to review a case and possibly testify in court. Mr. Korensteins firm head directed that the funding request be forwarded to Lisa Mandell. Ms. Mandell was formerly the unit 1 firm head.

The mother also attached a copy of an October 20, 2005 memorandum directed to all of the centers staff from Ms. Krinsky and the three unit heads. The October 20, 2005 memorandum stated the center was making slight revisions to the operating procedures to protect and preserve ethical walls. The revised operating procedures differed in some ways from the January 1990 operating procedures. The most important change was that center was counsel for all of the children. In the past, the three separate law firms had been appointed to represent clients.^[3]

The mothers points and authorities argued the center had abolished the independence of the three law firms. According to the mother, the center was operating as one law firm, which violated minimal ethical duties owed to its clients. The mothers points and authorities argued: [T]here is an actual conflict between the mother and the child. . . .  [M]other objects to the [center] representing her child or taking any position adverse to the mother. Citing City and County of San Francisco v. Cobra Solutions, Inc., supra, 38 Cal.4th at pages 851-853, the mother argued that an attorney could not ethically take a position adverse to a former client. The mother also argued that the center should be disqualified because it breached its continuing duty of loyalty to her as a former client. The breach of the continuing duty of loyalty occurred because the center represented another client, the child, in the present dependency action involving a former client, the mother.

3. The opposition

On September 5, 2006, the center filed an opposition to the disqualification motion. The centers opposition was filed after Ms. Baca withdrew her declaration. The center argued: the disqualification motion lacked evidentiary support because Ms. Baca withdrew her declaration; the exhibits attached to the motion were not authenticated; Mr. Korensteins declaration was insufficient to establish either the operating procedures or purported ethical violations of the center; and the centers structure and operating procedures closely complied with the standards set forth in: Castro v. Los Angeles County Bd. of Supervisors, supra, 232 Cal.App.3d at pages 1435-1445; People v. Christian (1996) 41 Cal.App.4th 986, 991-1002; and City and County of San Francisco v. Cobra Solutions, Inc.,supra, 38 Cal.4th at pages 847-854.

Attached to the opposition is the declaration of the centers executive director, Ms. Krinsky. Ms. Krinsky described the July 1, 2005 contract with the Administrative Office of the Courts. Ms. Krinsky stated, [The] contract allows [the center] to create a structure and procedures that best enable it to attend to the needs of dependent children it has contractually agreed to represent. According to Ms. Krinsky, the respective missions of Dependency Court Legal Services, Inc., when it was originally formed in 1989, and the center were different. Dependency Court Legal Services, Inc. was originally created in 1989 to represent parents and children in dependency proceedings. However, Dependency Court Legal Services, Inc. subsequently changed its primary focus to representing children in dependency proceedings. The name, Dependency Court Legal Services, Inc., was changed to reflect the centers exclusive focus on representing children.

Ms. Krinsky further declared the centers organizational focus had shifted, for the most part, by no longer representing parents. Thus, she explained the tripartite structure of three semi-autonomous divisions became outdated and was no longer necessary to carry out the centers mission. Ms. Krinsky declared, [The] old structure is at odds with the structure employed by other highly regarded organizations around the nation which represent children through a more unified and cohesive organization, thereby allowing for greater support for staff, more flexibility in the movement of cases and staff to allow for a more equitable distribution of cases, expanded opportunity for staff development, specialization, and growth, enhanced accountability, and a larger percentage of children represented by a single organization. According to Ms. Krinsky, prior to the change to the new organization structure, cases were not allocated between divisions to accommodate conflicts; rather, caseload assignment was accomplished on an ad hoc basis.

Ms. Krinsky also declared that, as a result of a 2004 meeting with the juvenile court presiding judge, the centers board of directors engaged the services of a management consultant. According to Ms. Krinsky, [The centers] Board of Directors engaged a management consultant, Jack Walker, who concluded that [the center] needed to be restructured from three separate law firms into a more unified law firm[.] Attached to Ms. Krinskys declaration was the recommendation of Mr. Walker to the centers board of directors. Mr. Walker was retained by the center as a consultant. Mr. Walker recommended the restructuring of the three separate law firms into a more unified law firm. Mr. Walker was perplexed as to why there were three separate firms. He stated, [A]bsent a compelling reason, a professional service firm should never be divided into freestanding, separately led parts. All of the great professional service firms that I know are characterized by a one-firm culture and a central administration . . . with everyone on the same team. In Mr. Walkers view, among the advantages of unifying were: securing private funding; the recruitment of future leaders; the reduction of internal dissention within the center; allowing the attorneys to handle more cases; utilizing investigators and social workers in a more effective fashion; developing specialization; better training; uniformity in compensation; and the ability to act as an advocacy organization. In terms of conflicts of interests, Mr. Walker stated: Sibling conflicts will always exist, however, and [the center] management must insure that, as restructuring is effected, current and future conflicts will be handled in an ethical manner without undue harm to clients. I use the word undue because perfection in these matters is never possible. Mr. Walker identified two obstacles to unificationconflicts and opposition by center lawyers to the change. According to Ms. Krinsky, the centers board concurred in Mr. Walkers recommendations.

Thereafter, the center performed a caseload study. According to Ms. Krinsky, over three-fourths of the centers caseload involved no conflicts at all. The center was restructured after a March 8, 2005 board of directors memorandum was circulated. The memorandum stated in part, [The board of directors] has concluded that the best interests of [the center] and its clients will be served by moving [the center] to a unified and more cohesive organizational structure. One firm was to be designated the core firmunit 1. There would also be conflict unitsunits 2 and 3. The March 8, 2005 memorandum to the center staff from its board of directors stated: Significantly, both the Boards ethics counsel and its management consultant endorse the movement to a new unified structure. Our ethics counsel has confirmed that no ethics rules or cases compel our current structure. The board of directors March 8, 2005 memorandum uses phrases such as: transition to a new unified structure; benefits will flow from a cohesive organizational structure; the centers unified entity; and move the organization in the direction of a unified structure. Further, the March 8, 2005 board of directors memorandum expressly states that lawyers will be moved from conflict firms to the core unit.

Ms. Krinsky declared the center strictly adhered to the aforementioned October 20, 2005 operating procedures and enforced the existing ethical walls. Ms. Krinsky denied that: she or other executive officers, attorneys, or staff from the core unit (unit 1) had access to case files in the conflicts units (units 2 and 3); unit 1 leadership and attorneys had access to client confidential information relating to units 2 or 3 cases; or unit leadership had involvement in case-specific decisions or supervision of those cases. Ms. Krinsky denied that attorneys working in units 2 or 3 needed to obtain her approval or of unit 1 before paying ordinary trial expenses such as retaining expert witnesses. However, unit 2 or 3 extraordinary expenses may need her approval in order to ensure that the center operated within its budgetary limitations. Ms. Krinsky stated that, in evaluating an extraordinary expense request, neither she nor her staff inquired into the specific facts of any case or obtained confidential information.

In terms of employment practices, Ms. Krinsky referred to the October 20, 2005 center operating procedures. (See fn. 3, supra.) Ms. Krinskys declaration described what she considered her authority to be with respect to hiring, discharging, and promoting staff. According to Ms. Krinsky, under the old and new procedures, as executive director: she had final authority upon the recommendation of the unit heads with regard to promoting, terminating, or disciplining lawyers or staff members; she had authority over the budget and allocation of funds in relation to operating costs; and she had authority over hiring decisions and assignment of lawyers to particular units.

Ms. Krinsky stated: As was the case under the old Operating Rules and Procedures affirmed by the Court of Appeal in Castro, Ias [the centers] Executive Directorhave final authority, upon the recommendation of the [center] Unit Heads, with regard to promoting, terminating, or disciplining [the center] lawyers or staff members. In addition, as under the old Operating Rules and Procedures, Ias [the centers] Executive Directorhave authority over the [the centers] budget and how funds get allocated in relation to [the centers] operating costs. I also have, as under the old Operating Rules and Procedures, authority over hiring decisions, and assignment of lawyers to particular [the centers] units.

Ms. Krinsky admitted there had been a policy in place regarding the exercise of blanket peremptory challenges. But she explained the policy did not constrain the exercise of challenges to particular cases, which remained the prerogative of individual attorneys under the unit heads supervision. Ms. Krinsky admitted that secretaries were moved between units. But Ms. Krinsky stated the practice of secretaries working in different units was in place when she became the executive director. That practice remained in effect. Ms. Krinsky stated she directed that the secretaries be advised of the need to preserve client confidences. Ms. Krinsky also declared that she was unaware of any material breaches of the centers operating procedures, ethical walls, or conflicts policy.

David Estep declared that he was head of the core unit or, as it was also called, unit 1. According to Mr. Estep, the center strictly enforced ethical walls among units 1, 2, and 3 and the executive leadership. (Formerly, the person responsible for administering a unit was called a director. After the centers reorganization, a director was referred to as a unit head.) Mr. Estep denied that either he, the executive officers, or any core unit attorneys have access to conflict units cases. Mr. Estep agreed that secretaries continued to move between the units as had occurred in the past. Ms. Krinsky underscored the need to ensure that the secretaries were advised of and abided by the rules concerning the preservation of client confidences and the maintenance of ethical walls.

Marc Leftwich, the unit 2 head, concurred that the ethical walls were maintained. As to Mr. Korensteins assertion that an expert witness funding request was forwarded to Ms. Mandel, the former unit 1 director, Mr. Leftwich declared, Mr. Korenstein does not identify the case or client involved, but my recollection is that the request was for an extraordinary expense and that the decision not to hire this particular expert witness was made independent of cost and based on strategic reasons related to the specifics of the case and discussed only with and among [unit 2] attorneys and supervisors. (Original italics.) Mr. Leftwich further declared that he had complete autonomy in funding ordinary trial expenses consistent with the limitations of the unit 2 budget. The unit 3 head, Ivy Carey, declared that the center strictly enforces the ethical walls in place among units 1, 2, and 3 and the executive leadership. She denied being aware of material breaches of the operating procedures, ethical walls, or conflicts policy.

4. The mothers reply

On September 18, 2006, the mother filed a written reply to the centers opposition. The mother submitted declarations from several former center employees. Kenneth P. Sherman declared that he joined Dependency Court Legal Services, Inc. in 1990 as a senior trial attorney. Mr. Sherman declared that Dependency Court Legal Services, Inc., the centers predecessor, was created with three separate law firms along with one administrator. Mr. Sherman declared, Since [Ms.] Krinsky was first hired as executive director, she repeatedly violated the ethical walls required by case law, statute and the bylaws of the corporation. In September 1997, Mr. Sherman became a law firm director. Ms. Krinsky was hired as the centers executive director in April 2002. Mr. Sherman and Anne Fragasso, another law firm director, repeatedly spoke with Ms. Krinsky about confidentiality and independence issues. Ms. Krinsky was repeatedly reminded that she could not breach confidentiality and she was required to respect the independence of the three law firms.

Mr. Sherman declared that, in January 2003, Ms. Krinsky intervened in one of the cases in his office. Ms. Krinsky requested that one of his attorneys representing a dependent child quash a subpoena for an employee of the Department of Children and Family Services. The child was the subject of a federal class action. The attorney representing the child refused to quash the subpoena. Ms. Krinsky then spoke to one of Mr. Shermans supervisors and requested that the attorney quash the subpoena. The supervisor refused to do so. Mr. Sherman discussed the matter with Ms. Krinsky including the fact that she knew of the existence of the subpoena. Mr. Sherman declared: Ms. Krinsky attempted to convince me that I should cause my attorney to quash the [subpoena]. Her basis for this request was that [the center] was involved in the [federal class action] litigation . . . and it would not look good if it appeared that [the center] was not cooperating with the Department. I responded to this argument by explaining to Ms. Krinsky that it was my duty as the attorney of record for this child to zealously advocate for her best interests. Even after I explained my ethical responsibilities to my client, Ms. Krinsky continued to attempt to convince me to have the [subpoena] quashed.

Mr. Sherman further declared that in spring 2003, in his presence, Ms. Krinsky asked fact specific questions of one of his lawyers representing a dependent child. According to Mr. Sherman, the nature of the questions made it clear that Ms. Krinsky had knowledge of many of the facts of the particular case. Mr. Sherman subsequently discovered that Ms. Mandel, the unit 1 head, represented a sibling with a conflicting interest.

Mr. Sherman also declared: In approximately June of 2003 it was discovered that Ms. Krinsky had surreptitiously had our computer administrator put her [e-mail] address on each of the intraoffice confidential [e-mails] of the three law firms. These intraoffice [e-mail] lists were intended to be distribution lists for the staff within each office in order to ensure that there was no breach of confidentiality when information about cases was transmitted within the office. It was only discovered that Ms. Krinsky had had herself included on these lists when one of the law firm directors sent out an [e-mail] to her office and an auto reply was received indicating that Ms. Krinsky was out of the office. When informed of the impropriety of this breach of confidentiality, Ms. Krinsky explained that she thought it was important for her as the head of [the center] to know what was being discussed within each of the three offices. When she was informed of the breach of confidentiality and how this act could endanger the viability of the corporation, she relented and permitted the three firms to maintain intraoffice confidential [e-mail] address lists.

In fall 2003, one of Mr. Shermans attorneys began filing Code of Civil Procedure section 170.6 affidavits in the courtrooms where the lawyer was assigned. Ms. Krinsky subsequently imposed a policy in all three offices that required her approval before an affidavit of prejudice could be used on a blanket basis or in a class of cases. Mr. Sherman attempted to explain to Ms. Krinsky that she was creating divided loyalties and subjecting the clients to the possibility of a court finding the three firms had conflicts of interests. Ms. Krinsky suspended the policy about a year later when Mr. Sherman provided her with an opinion from an ethics expert.

In spring 2005, an attorney left Mr. Shermans law firm. Ms. Krinsky made the decision to transfer those cases to the core firm headed by Ms. Mandel. In other words, the clients where Mr. Shermans firm had been provided representation would now be represented by lawyers working in Ms. Mandels firm. Mr. Sherman advised Ms. Krinsky that pursuant to section 317, subdivision (d) there had to be: notice to the client; an opportunity for the client to be heard; and a court order permitting the substitution. However, Ms. Krinsky felt it was unnecessary because the center was counsel for the children. Mr. Sherman then responded that the center was never appointed as counsel for any of the children. Rather, the court orders stated the following firms were appointed: CLC1, the Law Firm of Lisa Mandel; CLC2, the Law Firm of Kenneth P. Sherman; and CLC3, the Law Firm of Anne E. Fragasso. According to Mr. Sherman, Ms. Krinsky pursued transferring cases at will among the three firms.

Mr. Sherman also disputed Ms. Krinskys estimate of cases which had conflicts. Mr. Sherman stated that his survey revealed 25 to 50 percent of the cases involved conflicts of interest. Ms. Krinsky declined to undertake a survey that would accurately calculate the statistical data in each of the three law firms in order to obtain accurate figures as to the percentages of cases where conflicts of interests required the appointment of separate counsel.

Finally, Mr. Sherman declared: Many times [Ms.] Krinsky has indicated to me that she felt that the interests of the organization as a whole [were] paramount to the interests of the law firms. I informed her on many occasions that her actions endangered the viability of the corporation and compromised the ethical and legal obligations that the law firm directors owed to their clients. . . . Ms. Krinsky never acknowledged . . . the impropriety of her actions.

The mother also submitted Ms. Fragassos declaration. Ms. Fragasso stated that she was an employee of the center or its predecessor from the middle of 1999 until the middle of 2005. She became a law firm director after Randall Pacheco left. After Ms. Krinsky became executive director, the three law firm directors were concerned about action taken by the center. Ms. Fragasso declared: Each law firm had an intra office e-mail address list. In early summer of 2003, I discovered that Ms. Krinsky had included herself in each of these lists without informing the law firm directors of her action. I discovered that she had done so when an e-mail that I had thought was confidential, and which I had sent using the long established list of employees in my firm, was answered by Ms. Krinskys out of office auto reply. Initially, I thought an error had been made but, when I checked the lists, I found her name had been included in each of them. When Ms. Krinsky returned to the office and Lisa Mandel and I informed her of our concern, she was initially defensive and dismissive of our concern and said we should have told her we had these lists. Upon further reflection, however, she agreed that she should not be reading confidential intra office e-mail within each firm.

In terms of peremptory challenges, Ms. Fragasso declared, Ms. Krinsky announced . . . that she would be the final decision maker when it came to the exercise of peremptory challenges by lawyers in each of the three firms whenever such challenges were in the form either of a blanket challenge of a particular bench officer or a class of cases. Ms. Fragasso and Mr. Sherman at their own expense consulted an ethics expert who concluded the policy was unlawful. Shortly after Ms. Krinsky consulted outside counsel, the policy was withdrawn.

In the spring of 2005, staff was informed that the centers board of directors had decided the three law firms would collapse into one core firm. Attorneys leaving the Sherman and Fragasso firms would not be replaced but their cases would go to the core firm headed by Ms. Mandel. Ms. Fragasso spoke to Ms. Krinsky and Ms. Mandel. In that conversation, Ms. Fragasso expressed grave concerns about the lawfulness of the planned reorganization. Under the plan, Ms. Fragassos cases would be returned to the control of the core firm. As noted, Ms. Fragasso was counsel of record. Ms. Fragasso felt she was obligated to confer with her clients and advise them of their rights. Further, Ms. Fragasso stated it was necessary the court relieve her as counsel of record. Ms. Krinsky stated that the litigants were not Ms. Fragassos clients but those of the center. Ms. Krinsky stated she had already changed the contract with the superior court which permit[ted] her to create whatever structure as the executive director she deemed appropriate. Ms. Krinsky then produced the contract with the Administrative Office of the Courts. According to Ms. Fragasso, The new contract contained none of the language approved in Castro that allowed [the center] to represent multiple clients.

As noted, Ms. Krinsky indicated that Ms. Fragassos concerns were unwarranted because the clients belonged to the center. Ms. Fragasso indicated that she believed that Castro was the controlling authority of law and that the ethical walls between the law firms needed to remain. Ms. Fragasso stated, Ms. Krinsky told me that speaking to my clients privately and requesting the court to relieve me as counsel [was] not only unnecessary but would be harmful to my clients. Ms. Fragasso refused to transfer the cases unless she was permitted to speak to the clients in confidence, to obtain their input, and to be relieved by the court as a counsel of record. After expressing these concerns, Ms. Fragasso was removed as a law firm director.

Angela Pierce di Donato declared that she formerly was a unit 2 attorney. Ms. di Donato had been employed in the Law Offices of Robert Stevenson beginning in December 1996. When she was hired, Ms. di Donato met with the Executive Director of Dependency Court Legal Services, Inc., Ed Gilmore, and discussed salary and benefits. Thereafter, Mr. Gilmore never discussed any case or client with Ms. di Donato. When Mr. Stevenson became a superior court referee, Mr. Sherman became the new firm director. The firm was known as the Law Office of Kenneth P. Sherman. When Mr. Stevenson left, Mr. Sherman became the counsel of record on each of Ms. di Donatos cases. Ms. di Donato left Mr. Shermans firm in January 2005 and became a panel attorney.

One evening Ms. Krinsky came into Ms. di Donatos office at about 6 p.m. According to Ms. di Donato, Ms. Krinsky came into unit 2 through a door that had been locked and needed a key for access. The door was not open to the public. Ms. di Donatos case files were spread out on the office file. Ms. di Donato declared: I told her that I was working on a difficult case that needed more attention. She asked me about the facts of the case and what work I was doing on it. She asked me questions about my client and what was going on in court.

While she was employed in unit 2 and its predecessor law offices, Ms. di Donato identified the percentage of her files in department 411, the courtroom she worked in, where the client had previously been represented by another unit. Less than half her cases involved clients who had previously been represented by one of the other center law firms. Because she was dissatisfied with the accuracy of her count, Ms. di Donato had staff in the Mandel and Fragasso firms run her case numbers through their databases. Ms. di Donato declared, I was very surprised to learn that 2/3 of my cases had parties that had been represented by one or both of the other [center] firms.

In late November 2004, Ms. di Donato decided to leave the center to work as a panel attorney. Ms. di Donato wanted to keep 15 cases. Ms. Krinsky said the cases belonged to the center. Ms. Krinsky said she would decide which cases could be taken. Ms. di Donato had to explain the facts of each case to Ms. Krinsky. Ms. Krinsky then made a decision as to each case. Ms. di Donato was only permitted to keep two child clients but Ms. Krinsky made Ms. di Donato explain the facts of those cases.

5. The centers additional response

In a supplemental written submission, the center noted it was being sued by Mr. Sherman and Ms. Fragasso. Mr. Sherman was terminated on May 19, 2005. Ms. Fragasso was terminated on June 30, 2005. The center also asserted: there was no evidence that any client confidential information relating to this case or this client had been passed between units; client confidences had been maintained; and ethical walls between the units remained in effect.

Ms. Krinsky filed an additional declaration in which she denied receiving any confidential information or exercising any control over this case. She declared: The Response asserts that I may have a key to the office spaces occupied by [units 2 and 3]. I honestly do not know whether or not I have any such keythe keys I possess were given to me by our [human resources] director when I started at [the center] . . . . She denied using a key to access the office spaces of units 2 and 3 or any confidential files. Ms. Krinsky explained the practice of having a common law library was in place before she arrived at the center. Ms. Krinsky explained, I did at that time include myself as Executive Director on [e-mail] groups I hadnt previously been aware of in order to be kept apprised of general office [e-mail] discussions of events, issues of common concern, or other non-case specific matters via [e-mail].

As to the late night meeting in Ms. di Donatos office, Ms. Krinsky stated: I have no specific recollection of this conversation taking place, but I recall a late-night rapport-building conversation between Ms. di Donato and myself, in which I as the new [center] Executive Director sought to listen and show an interest in what was on the mind of one of [the centers] line attorneys. (This is the first time that Ms. [di] Donato, Mr. Sherman, or any other [center] supervisor has expressed concern in regard to that conversation.) I have never forced any [center] lawyer to discuss a conflict case or reveal client confidential information . . . .

As to the meeting when Ms. di Donato was leaving the employ of the center, Ms. Krinsky declared: During these discussions . . . no client confidential information was ever passed to me. I was only seeking to obtain basic information that would help in deciding whether the case and Ms. di Donatos relationship with the client was sufficiently unusual to justify an exception to the [center] rule and practice that on departure of an attorney, [center] clients continue to be represented by [the center].

Ms. Carey declared that as the head of unit 3, she opposed the disqualification motion. Ms. Carey denied being pressured or compelled to do so by Ms. Krinsky or anyone else. Ms. Carey declared that she had full autonomy with regard to representing the child in this case.

D. The Jurisdiction/Disposition Report Filed September 8, 2006

The Jurisdiction/Disposition report filed September 8, 2006, which was in the juvenile court file and had been received in evidence when the disqualification motion was granted on September 22, 2006, described the mothers prior dependency litigation while she was represented by the center. When she was 14 years old, which was in 2001, the mother was placed in St. Annes Maternity Home. On April 17, 2002, the department received reports that the older sibling, Donna, was subject to emotional abuse. These initial abuse reports were made when the mother was 15 years old and while a center client. On April 17, 2002, the mother signed a voluntary family maintenance agreement with the department. On June 4, 2002, Donna was detained in response to sustained allegations of physical abuse and general neglect. The mother received family reunification services for Donna from June 4, 2002, through December 18, 2003. Permanent placement services were provided from December 18, 2003, though January 26, 2005. Donna was adopted and jurisdiction was terminated on February 17, 2005. The mother turned 18 on March 18, 2005.

The mother explained the failure to reunify with Donna thusly: Yes. She (Donna) was permanently placed. She was in legal guardianship at first, then all of a sudden she was adopted. I dont know what they (Court) was talking about. I finished my parenting and anger management, but they also wanted me to go to a grief and loss class and I never did that, so maybe thats why they said I didnt reunify with her. The mother explained that some of her depression stemmed from the fact she was placed in foster care. The mother was also depressed because of the failure to reunite with Donna. The department social worker believed the mothers failure to reunite with Donna may have been due to immaturity. The social worker noted that Donna was born when the mother was only 14 years old.

E. The September 22, 2006 Hearing

At the disqualification motion hearing on September 22, 2006, the mother renewed her objection to the participation of the center in the proceeding. The juvenile court overruled the objection indicating that Ms. Baca failed to submit points and authorities on the standing issue. The juvenile court gave a lengthy tentative analysis that consumes seven pages of the reporters transcript as to why it thought the disqualification was warranted. The juvenile court stated: any restructuring by the center must maintain ethical walls and avoid dissemination of privileged communications; the controlling cases were Castro v. Los Angeles County Bd. of Supervisors, supra, 232 Cal.App.3d at pages 1435-1445 and People v. Christian, supra, 41 Cal.App.4th at pages 991-1002; the decision of City and County of San Francisco v. Cobra Solutions, Inc., supra, 38 Cal.4th at pages 847-854 was irrelevant for a variety of reasons; the centers reorganization plan with a core unit and two conflict units was appropriate unless the ethical walls mandated by Castro were in practice violated; there were internal politics within the center that were at play; I get the impression that [the center] says one thing and does something else; it was concerned about Ms. Krinskys intrusion into the computer systems; Ms. Krinsky retained final authority over personnel issues in a manner different from that that present in Castro; the contract between the board of supervisors and Dependency Courts Legal Services, Inc. permitted the executive leadership the authority to promote, discipline, or dismiss staff employees only upon the recommendation of the law firm director; but Ms. Krinsky (or her designee), after considering a unit heads recommendation, had the final authority over all personnel decisions; the centers own statistics indicated that 18 percent of the case involved conflicts of interest, a figure disputed by the mothers declarations; and the ethical walls maintained by Castro had been violated. The juvenile court concluded, citing to the following language in Castro v. Los Angeles County Bd. of Supervisors, supra, 232 Cal.App.3d at page 1444, The question, therefore, is not whether a lawyer in a particular circumstance may or might or could be tempted to do something improper, but whether the likelihood of such a transgression, in the eye of the reasonable observer, is of sufficient magnitude that the arrangement or representation ought to be forbidden categorically. The juvenile court then took a recess so as to allow parties an opportunity to digest its tentative views.

The juvenile court stated that it would be willing to grant an evidentiary hearing before ruling on the matter. The centers counsel declined the offer for an evidentiary hearing and submitted on the tentative ruling. The juvenile court granted the disqualification motion but stayed the order for one week. The center filed a notice of appeal on October 13, 2006.

Story continued as Part IV..

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] In addition, Dependency Court Legal Services, Inc. was contractually required to follow the Operating Rules and Procedures set forth in exhibit A to the January 22, 1990 agreement: 1. [Dependency Court Legal Service, Inc.s] staff attorneys (i.e. those actually providing representation in dependency court proceedings) must be organized into three separate offices of comparable quality. []  2. Each office shall have its own separate administrator. Each office administrator shall be the attorney of record on all cases assigned to his or her office, with the staff attorneys assigned to that office serving as deputies or assistants. Each office administrator shall be responsible for all legal representation provided by the attorneys in his or her office and shall have full case management authority over all cases assigned to that office. []  3. Each office shall maintain separate case files. No staff attorney shall have access to the case files of an office other than the one to which he or she is assigned, and no corporate officer or director shall have access to any case files. []  4. Attorneys may not be transferred between offices. [] 5. [Dependency Court Legal Services, Inc.s] corporate officers and directors shall serve in an administrative capacity only and shall not participate in any way in the representation of individuals in dependency court proceedings. They shall not consult with staff attorneys, including office administrators, about individual cases, except to review performance after the matter has been completed. []  6. Staff attorneys (including office administrators) shall not hold any corporate officer or director positions with [Dependency Court Legal Services, Inc.]. []  7. [Dependency Court Legal Services, Inc.s] corporate officers shall promote, discipline, or dismiss a staff attorney only upon the recommendation of that attorneys office administrator. Corporate officers shall be responsible for hiring staff attorneys and for assigning them to offices in such a manner as to maintain the comparable quality of the three offices. []  8. [Dependency Court Legal Services, Inc.s] corporate officers and directors may participate in the training of staff attorneys and office administrators, but such training shall be provided on an equal basis to the attorneys in the three offices. []  9. Each office administrator shall establish and promulgate a procedure to receive and resolve complaints.

^[3] The October 20, 2005 memorandum states: 1. [The center] staff will continue to be assigned by [the centers] executive leadership to a core unit or such other conflict unit or units as [the center] may choose to maintain over time (currently denoted as [the center unit Nos.] 1, 2, and 3). The conflict unit or units will handle cases with siblings where conflicts of interest are present (conflict cases)to be denoted on [the centers] file and records as conflict casesas well as any other nonconflict cases that may previously or in the future be assigned to that unit. Attorneys in all [center] units will continue to pick up new cases in accordance with their assigned pick up days, as determined by [the centers] supervisors. Any determination that a conflict exists in a given case will be made only after consultation with, and approval by, a supervisor, as set forth in [the centers] conflict policy. []  2. Each of [the centers] units will operate pursuant to the procedures set forth herein to ensure that ethical walls for handling conflict cases within [the center] remain in place and are honored at all times. Any questions or concerns that these procedures do not adequately preserve the separateness of conflict cases or that these procedures are not being complied with shall be directed to [the centers] Executive Director or the appropriate unit head. []  3. Each [center] unit shall have a unit head. The conflict head(s) shall ensure that conflict case files and all confidential case information relating to conflict cases assigned to a given unit are maintained by that unit, remain separate from the case files and confidential case information of the core firm and any other conflict unit(s), and cannot be accessed by any staff outside the conflict unit. The conflict unit(s) head(s) and any other conflict unit supervisors shall supervise, direct and coordinate the day-to-day representation and case-related decision making in regard to conflict cases and conflict clients assigned to that unit and will be the final decision-maker in regard to those case-specific issues. []  4. Our practice for promoting, terminating or disciplining [the center] lawyers or staff members is unchanged. The [center] Executive Director or his or her designee will remain the final decision-maker after considering a recommendation from the unit head or supervisor of that staff member, along with the basis for that recommendation. In evaluating that recommendation, the [center] Executive Director will not have access to conflict unit case files, or any conflict unit client confidential information. []  5. No attorney shall have access to the case files or confidential client information relating to any clients of other units in conflict with that attorneys clients. []  6. Where no conflict of interest or ethical concerns exist, cases may be reassigned within [the center], and in particular from the conflict unit(s) to the core firm. []  7. [The centers] executive leadership shall be responsible for hiring and training staff attorneys and for assigning them, as appropriate and consistent with the Boards restructuring plan, to the core firm or conflict unit(s). All attorneys and staff shall receive training regarding the necessity of maintaining client confidences. []  8. [The center] will continue to remain counsel for all clients assigned to [the center]. To ensure that the appropriate staff member receives notices, pleadings, and other information relating to clients, individual attorneys within [the center] will serve as the responsible attorneythe attorney of recordfor cases assigned to that attorney. If those individual attorneys leave [the centers] employ or change courtrooms or caseloads, a notice will be filed with the court and sent to all critical persons and entities, designating the new responsible attorney of record within [the center]. As noted above, the conflict unit head(s) will maintain ultimate and final responsibility for the supervision, direction and coordination of case-related decision making in regard to conflict cases and conflict clients assigned to that unit and will be the final decision-maker in regard to those case-specific issues.