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 I..

First, legal services lawyers do not have a financial interest in the matters on which they work. As a result, they may have less, if any, incentive to breach client confidences. (City of Santa Barbara, supra, 122 Cal.App.4th at p. 24.) They do not have to attract new clients through client referrals or solicitation, nor must they worry about retaining a fee-generating base of recurrent clients. (Castro, supra, 232 Cal.App.3d at 1441.)

Second, disqualification of legal services attorneys can result in increased public expeditures for legal representation, and there is the potential for a substantially increased call upon an already severely strained tax base. (In re Lee G. (1991) 1 Cal.App.4th 17, 28, quoting People v. Municipal Court (Byars) (1978) 77 Cal.App.3d 294, 301; accord, Cobra Solutions, supra, 38 Cal.4th at p. 851.) Disqualification should therefore be avoided if the benefit is only speculative or minimal. (In re Lee G., supra, 1 Cal.App.4th at p. 28.)

Third, as a general matter, public law offices often develop specific expertise in particular areas of law, and disqualification may deprive the offices clients of the benefits of this acquired and cultivated expertise. (Cobra Solutions, supra, 38 Cal.4th at p. 851; City of Santa Barbara, supra, 122 Cal.App.4th at p. 24.) Although there is no indication that any party in this case has been deprived of qualified counsel, according to the Centers Web site, [w]ith a 185 person staff of lawyers, paralegals, and investigators, [the Center] represents more than 80% of the nearly 30,000 children under the jurisdiction of the dependency court. (About Childrens LawCenter, http://www.clcla.org/about.htm (as of April 6, 2007).) Disqualification of the Center in a substantial number of cases would have an impact on the availability of qualified, experienced child welfare counsel in Los Angeles County.

Relying largely on these considerations, California courts have permitted the use of ethical screens to avoid vicarious disqualification in successive-conflicts cases involving (1) a former public-sector lawyer moving into a private firm, when the lawyer was not directly involved in the relevant matter (Chambers v. Superior Court (1981) 121 Cal.App.3d 893, 902-903); (2) a former private-sector lawyer moving into a public law office, when the lawyer was directly and personally involved in the relevant matter (City of Santa Barbara, supra, 122 Cal.App.4th at pp. 26-27); and (3) a lawyer moving from one legal-services agency to an adverse legal-services agency (Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, 118-119 [former public defender employed by prosecutors office].) The use of ethical screens in such circumstances is also permitted by both the Model Rules and the Restatement. (Model Rule 1.11(b), (d); Restatement,  124(3); cf. Cobra Solutions, supra, 38 Cal.4th at pp. 852-854 [ethical screens insufficient when lawyer, who personally and directly represented adverse client while in private practice, subsequently occupies position as head of office, with power to review, hire and fire lawyers working on case].)

3. The Center Should Not Have Been Disqualified in this Case.

Applying the principles discussed above, the juvenile court applied the wrong legal standard in deciding mothers motion to disqualify. The factors set forth in Castro, supra, 232 Cal.App.3d 1432, are not necessarily dispositive in successive-conflict cases when the attorney at issue was not personally and directly involved in representing the prior client. Furthermore, even if the juvenile court did not err in applying Castro, it nevertheless erred in concluding that disqualification was required in this case.

The juvenile court found, There was no specificto this caseconflict raised in terms of the divulgence of any confidential or privileged communication. This finding is determinative. California courts do not disqualify lawyers on conflict-of-interest groundsparticularly lawyers from legal-services agencieswhen the lawyer has no actual or imputed conflict of interest. (See Goldberg, supra, 125 Cal.App.4th at pp. 764-765 [no vicarious disqualification when attorney who worked on matter no longer associated with firm and had not actually shared confidential information]; Hetos Investments, Ltd. v. Kurtin (2003) 110 Cal.App.4th 36, 47 [disqualification appropriate only where the appearance of impropriety arises in connection with a tangible dereliction (italics added)], quoting Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 306.) Contrary to the juvenile courts suggestion, an appearance of impropriety by itself does not support a lawyers disqualification. (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 833.)

The juvenile court expressly stated that the issue before it was whether or not, inherently or in practice, the [Center] has violated the ethical constraints enunciated in Castro. The juvenile court concluded that it found a violation in this case of the Castro and Christian safeguards regarding conflict of interest in representing multiple parties in the same action. Unlike both Castro, supra, 232 Cal.App.3d 1432, and Christian, supra, 41 Cal.App.4th 986, however, this is not a concurrent-conflict case, in which the Center represent[ed] multiple parties in the same action. This is a successive-conflict case. As a result, a finding that the Center violated the safeguards set forth in Castro does not automatically compel disqualification.^[1]

Castro, supra, 232 Cal.App.3d 1432, was an action for declaratory and injunctive relief, in which the plaintiffs sought to enjoin the Centers predecessor, DCLS, from providing representation to multiple parties in dependency proceedings on the ground that such multiple representation created conflicts of interest. (Id. at pp. 1434-1435.) The plaintiffs argued that DCLS, which was structured into three independent practice groups serviced by a single administrative unit (id. at p. 1437), was analogous to a private law firm, and should be treated as a single law firm for purposes of applying the vicarious disqualification doctrine. (Id. at pp. 1441-1442.) The Court of Appeal rejected both arguments. DCLS did not represent private, paying clients, so there was no incentive for DCLS to favor any one client over another. (Id. at p. 1441.) DCLS had only one source of clients in a single kind of legal proceeding, and does not solicit clients or accept referrals from the public. (Id. at p. 1442.) In addition, DCLS had been structured so its attorneys and its separate groups have no contact with one another. (Ibid.) Each of the three groups at DCLS had a policy in place to decline representation whenever one of its attorneys had a conflict of interest arising out of pre-DCLS representation of a client. (Id. at p. 1443.) The Court of Appeal concluded that the DCLS arrangement did not constitute the appearance of,^[[2]] or any actual, ethical impropriety (id. at p. 1444), and therefore affirmed the juvenile courts denial of a preliminary injunction. (Id. at p. 1445; see Cobra Solutions, supra, 38 Cal.4th at p. 849 [In both Castro and Christian, supra, 41 Cal.App.4th 986, the separate law units under a single governmental umbrella operated as separate law firms independent of parallel units also sheltered under that umbrella.)

Accordingly, although Castro, supra, 232 Cal.App.3d 1432, describes safeguards that might immunize the Center from disqualification in all cases of potential concurrent conflict, it says nothing about when disqualification might be required in a particular case, especially a case involving a successive conflict. Indeed, the court in Castro emphasized that rulings on disqualifications must proceed according to the circumstances of each case, in light of several competing interests (id. at p. 1441), and refused to discuss possible conflicts of a hypothetical nature, stating that [s]peculative contentions of conflict of interest cannot justify disqualification of counsel. (Id. at p. 1442.) Castro does not support the conclusion, inherent in the juvenile courts order here, that a technical violation of one or more of the safeguards present in that case requires automatic disqualification in all successive-conflict cases or even in all cases.

This case illustrates why an automatic disqualification rule is unsound: none of violations of the safeguards referred to in Castro, supra, 232 Cal.App.3d 1432, bears any demonstrable relation to the attorneys or the parties involved in this case. Even accepting the juvenile courts conclusion that the violations justify treating the Centers three units as a single law firm for purposes of disqualification, the record establishes that those violations have been, at most, temporary and sporadic. There is no showing that they are ongoing. The juvenile court made no findings with regard to what period of time the violations persisted, or for what particular cases the three units separate existence must be disregarded. Finding that the Center must be treated as a single unit for all time and for all cases involving successive representation would be unwarranted. Yet, the disqualification in this case, with no evidence to link the violations to the particular attorneys or parties involved, implies precisely such a finding.

A simple hypothetical demonstrates this proposition. Assume that Law Firm currently represents Client A, whose interests are adverse to former Client Z, but Law Firm is permitted to represent Client A because a different attorney is handling the matter and an effective ethical screen (assuming, for these purposes, that ethical screens can be employed to prevent vicarious disqualification) has been put in place. Assume further that Law Firm represents Client B, whose interests are adverse to former Client Y, but again, Law Firm is permitted to represent Client B because a different attorney is handling the matter and an ethical screen has been put in place.

A material breach of the ethical screen in the case involving Client A and former Client Z would result in disqualifying Law Firm from representing Client A, even absent evidence that confidential information was actually disclosed, because of the risk that Client Zs confidential information might have been disclosed or misused, and because the proceedings with respect to Client A have been tainted by the breach. But, the breach in the case involving Client A and former Client Z would not justify disqualifying Law Firm from representing Client B, because there is no increased risk that Client Ys confidential information has been disclosed or misused, nor have the proceedings with respect to Client B been tainted. Yet, the anomalous result reached by the juvenile court in this case would disqualify Law Firm from representing Client B, on evidence of a relevant conflict of interest and an ethical breach that is much weaker than the assumptions made in the hypothetical.

Indeed, the disqualification in this case is not based on competent, relevant evidence of a disqualifying conflict of interest, but is the result of speculation, imputation, and presumption. The following is the evidence relating to the alleged breaches of the ethical screens in this case, and the effect or relevance of that evidence.

        The record contains no competent evidence that, in fact, the Centers Unit 1 or its predecessor ever represented mother. The juvenile court appears to have accepted the statements of mothers lawyer of such representation, and the Center has never disputed the accuracy of those statements. Assuming that the Center did represent mother, the juvenile court made no findings, and the record does not clearly establish, when mother was a client of the Centers Unit 1 or its predecessor; the most that can be inferred is that the representation began in or around 2001. The record does not indicate which attorney or attorneys represented mother, or whether that attorney is still employed by the Center. There is thus no evidence that any attorney employed by the Center is currently subject to a personal disqualifying conflict, nor is there any evidence that mothers case was so notorious or unique that it remains the subject of clear memory or is still discussed among the Centers staff.

        The present case was commenced in July 2006. There is no evidence that any of the files from mothers case in Unit 1 are accessible to, or have been reviewed or are likely to be inadvertently discovered by, childs attorney in Unit 3. The evidence, in fact, is to the contrary. The head of Unit 1 declared that, currently, the ethical screens between Unit 1 and Unit 3 are strictly adhere[d] to and enforce[d], and that he personally ensure[s] that no attorneys or staff from . . . [Unit] 3 have access to the case files and client confidential information relating to cases assigned to [Unit] 1. The head of Unit 3 declared that Unit 3 attorneys and staff . . . have no access to the case files and client confidential information relating to cases assigned to [Unit] 1 . . . . Further, none of the purported violations of the ethical screens occurred while this case was pending. Childs attorney in Unit 3 thus had neither the opportunity nor the incentive to exploit any purported breach in the ethical screens to learn mothers confidential information, nor is there any evidence that childs attorney did so.

        Unit 2s representation of childs older sibling, beginning in or about 2002, is irrelevant. That representation was adverse to motherthat was the reason that a Unit 2 attorney was appointed to represent the older sibling. There is no presumption or indication that Unit 2 learned mothers confidential information, nor can anything learned by Unit 2 during the course of that representation constitute grounds for disqualification in this case.

        There is evidence that in 2003, Ms. Krinsky, then the Executive Director of the Center, attempted to have a staff attorney in Unit 2 of the Center move to quash a subpoena involving a child who was a party in a federal action. Even if true, it is irrelevant to the disqualification in this case. Ms. Krinskys action did not reveal or tend to reveal any confidential information, let alone information relating to the representation in the instant case; it is the existence of such a revelation that is the relevant consideration in cases of successive conflicts. Even if this was a concurrent-conflict case, which directly implicated the attorneys duty of loyalty, there is no evidence that Ms. Krinsky had the authority to take, actually took, or threatened any punitive action against the staff attorney, or that the professional independence of any attorney in any matter has been compromised.

        There is evidence that Ms. Krinsky imposed a policy on all three offices to require her personal approval before filing blanket or class-of-cases affidavits of prejudice against judicial officers under Code of Civil Procedure section 170.6. Again, this is irrelevant. Nothing in Castro, supra, 232 Cal.App.3d 1432, prevents an office administrator from setting office policy, particularly when the policy is one that precludes attorney-employees from perpetuating a specific tactical abuse expressly disapproved by the California Supreme Court. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 203.)

        Ms. Krinsky asked case-specific questions of two now-former Center attorneys between 2002 and 2004. The declarants failed to identify any specific case. There is no evidence that mothers case was one of the cases about which Ms. Krinsky inquired, nor is there evidence that Ms. Krinsky engaged in any such conduct in the more than two years preceding the filing of this case. Absent evidence that Ms. Krinsky actually shared or misused information that she learned from the staff attorneys, it does not appear that Ms. Krinskys conduct presents such an intolerable risk of disclosure (Castro, supra, 232 Cal.App. at p. 1444) that, in September 2006, the juvenile court was justified in disregarding the separate existence of the three units for all purposes.

        Ms. Krinsky was copied on interoffice e-mails containing confidential information during part of 2003. Again, this practice was discontinued more than three years ago. There is no evidence that this occurred during Unit 1s (or its predecessors) representation of mother, nor is there any evidence that any of mothers confidential information was transmitted to Ms. Krinsky.

        Ms. Krinsky transferred cases between units of the Center in 2005, allegedly in violation of section 317, subdivision (e), and allegedly fired an attorney because the attorney indicated an intent to communicate with the attorneys clients about the transfers. This allegation is irrelevant to whether disqualification is warranted in this successive-conflict case. Even if this were a concurrent-conflict case, there is no evidence that the alleged transfers that might have occurred in 2005 were improper, and the juvenile court made no such finding. There is no evidence that, as the result of any such transfer, the Center, any of its units, or any of its individual attorneys was disqualified, sanctioned, or disciplined, or that the professional independence of any staff attorney was compromised. Nothing in Castro, supra, 232 Cal.App.3d 1432, proscribes the transfer of cases between the Centers distinct, non-conflicted units, any more than the law prevents the transfer of cases between non-conflicted private law firms. Further, the juvenile court made no finding, express or implied, that the attorneys termination was retributive, illegal, or improper, or that her firing was anything more than an isolated event that occurred long before this case commenced.

        There was evidence that legal secretaries would work in the different units. Knowledge of confidential information, however, is not automatically imputed to or from non-lawyer support personnel. Rather, under existing California authority, the party seeking disqualification must demonstrate that the non-lawyer employee actually possesses confidential information that is material to the representation. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 595-596; see generally, 1 Vapnek, supra, Imputed Disqualification, 4:221-4:222.10 at pp. 4-71 to 4-73.) Californias rule is consistent with the prevailing majority rule in the United States on this point. (1 Hazard & Hodes, supra, 14.11 at pp. 14-34 to 14-35.) There is no evidence in this case of any breach of confidence by a secretary, let alone that a secretary employed by Unit 1 in the relevant time frame actually gained knowledge of mothers material confidential information, and was subsequently transferred from Unit 1 to Unit 3 and is presently in Unit 3. Instead, the undisputed evidence is that those in the Centers support staff are advised of and expected to abide by the Centers confidentiality policies.

        A memorandum describes the Centers new administrative structure as unified. This is irrelevant. Both Castro, supra, 232 Cal.App.3d at page 1437, and Christian, supra, 41 Cal.App.4th at page 1000, approve a unified administrative structure. The relevant question is whether the Centers three legal services units operate independently in handling cases. The undisputed evidence is that, currently, they do.

        There is a central library for all three units. This, however, has always been true. There is no indication that such a library compromised confidentiality. It is common for lawyers from different firms and offices to use a common librarypublic or private.

        With respect to mothers concerns regarding the Centers anticipate[d] transform[ation] into a sort of public interest advocacy and policy law firm, there is no indication that any advocacy or fund raising has actually interfered with the duties of competent and vigorous representation, loyalty and confidentiality owed to clients of the Centers individual units.^[3]

Accordingly, the juvenile court erred by applying the incorrect legal standard, and then again when it concluded, under the wrong legal standard, that the evidence warrants disqualification in this case.

The correct legal standard to apply in a successive-conflict case involving the Center is that articulated in Jessen, supra, 111 Cal.App.4th at pp. 709-711. (See Ochoa v. Fordel, Inc., supra, 146 Cal.App.4th at pp. 907-909; Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at pp. 1337-1341; see also Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566, 1573-1576.) That standard is this: If the individual lawyer had a direct and personal relationship with the former client, then the lawyer and the lawyers unit should be disqualified automatically, as a matter of law; when the individual lawyer had no direct and personal relationship with the former client, as in this case, but the party moving for disqualification presents evidence that the Centers ethical screens have been breached, the juvenile court should treat the Center as a single law firm for conflicts purposes only if the moving partys evidence establishes a reasonable possibility that the lawyer hasactually obtained, or will inadvertently acquire, material confidential information relating to the former clients representation. The factors the juvenile court should consider include (1) the length of time that has elapsed since the former client was represented by the Center; (2) whether the prior case was particularly notorious or memorable; (3) whether the current attorney was employed by the Center at the time of the prior representation, and whether the attorney responsible for the prior representation is still employed by the Center; and (4) the nature and extent of any breaches in the Centers operating procedures established to ensure that confidential information acquired by one unit is protected from purposeful or inadvertent disclosure to lawyers in the Centers other units. This procedure represents a reasonable and effective accommodation that strikes an appropriate balance between a clients expectation of confidentiality, the integrity of the judicial system, and the publics interest in avoiding costly disqualifications of public lawyers that provide little or no benefit to either the affected clients or the orderly administration of justice.

The appropriate legal standard does not warrant disqualification in this case. The record is unclear, but it appears that several years have passed since mother was represented by Unit 1 or its predecessor. There is no evidence that mothers case was so unusual or notorious that, of the thousands of cases handled by the Center since, confidential information concerning mothers case is remembered or discussed, either by the attorney who worked on it or colleagues from different units. There is no evidence that childs attorney was employed by the Center when mothers case was pending, and no evidence that the attorney who may have represented mother is still employed there. The Center has instituted formal, institutional mechanisms to prevent the dissemination of confidential client information. To the extent the evidence supports the conclusion that some of those mechanisms might have been compromised since mothers case was pending, such breaches were in the past, temporary, and sporadic, and do not give rise to a reasonable possibility that childs attorney in this case has acquired or will advertently be exposed to mothers confidential information.

In any litigation, disqualifying a partys attorney imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. (City of Santa Barbara, supra, 122 Cal.App.4th at p. 23.) Courts must therefore examine [motions to disqualify] carefully to ensure that literalism does not deny the parties substantial justice. (SpeeDee Oil, supra, 20 Cal.4th at p. 1144.) These principles apply with particular force in the context of legal-services agencies. [T]he government inevitably incurs the added cost of retaining private counsel [citation], the delay such substitution entails, and in certain types of litigation [the client] may also lose the specialized expertise of [the agencys] attorneys . . . . (Cobra Solutions, supra, 38 Cal.4th at p. 851.) As a result, woodenly applying [in the legal-services context] the automatic imputation rule that usually governs private law firms would be impractical and against the public interest. (1 Hazard & Hodes, supra, Government Lawyers, 15.3 at p. 15-10.)

DISPOSITION

The juvenile courts order of disqualification is reversed.

CERTIFIED FOR PUBLICATION

MOSK, J.

Armstrong, J.

I concur.

I agree with the lead opinion's analysis of the facts with reference to Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432. I also agree with the lead opinion's conclusion: the evidence presented by Shadonna cannot be read to support a finding that CLC meaningfully departed from the practices approved in Castro and operated as one law firm.^[4] Disqualification was thus improper and the disqualification order must be reversed.

I write separately for two reasons. First, the lead opinion reflects the theories advanced in Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1576, which held that the usual rules applicable to successive representation conflicts of interest and vicarious disqualification of law firms (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283-284; City and County of San Francisco v. Cobra Solutions, Inc. (2006)38 Cal.4th 839, 847) do not apply to criminal cases, at least when representation is by the public defender. I cannot agree that Rhaburn or the Rhaburn "factors" have any application here.

Given that CLC operated as three separate firms, Rhaburn, which concerned one firm, is irrelevant. Moreover, Rhaburn depends on assumptions which I do not believe we can make. I see nothing in the record which would allow us to assume that CLC has a high turnover, or that CLC lawyers do not remember their cases or talk about them with their colleagues. (Rhaburn, supra, 140 Cal.App.4th at p. 1579.) Nor can I see that if CLC were found to have a conflict in this case, and thus be disqualified, any client would be deprived of counsel with the necessary expertise or that public funds would be wasted. (Id. at p. 1580.) Neither do I see that we are free to weaken the protections the law relating to conflicts provides to clients, merely to save money. In disqualification cases, "[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar." (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) This is no less true when counsel are court-appointed and publicly paid, and when the representation is of children. To the contrary, children are particularly unable to police conflicts or to otherwise protect themselves.

Shadonna was represented by a CLC lawyer when she was a vulnerable child, and when she was a vulnerable child-mother. If a private lawyer had undertaken that representation, another lawyer in that lawyer's firm could not, a year later, represent her adversary, Charlisse, in this closely related case. That would be the rule if Shadonna was a business, institution, or investor. I see no need to weaken the rules because she was a child.

This brings me to my next point. There was evidence that CLC's former Executive Director attempted to direct strategy in individual cases not in order to advance the interests of the client, but to advance the interests of CLC. I do not see that this is evidence that CLC operated as one firm, but I do see a real problem, and I feel constrained to comment.

It is axiomatic that a lawyer must advocate for the client, not the lawyer or any law firm or institution the lawyer is affiliated with. I take quite seriously Shadonna's argument that things will worsen for CLC clients in this regard, given that CLC now raises money from outside sources and, at least according to some of the information in the record, plans to become not just a law office but a "child advocacy" organization. I note that CLC's own website announces that it not only represents clients, but works for "system reform" to "bring about far-reaching changes," by sponsoring legislation, taking public positions, and other activities.

It is easy to see that, as Shadonna argues, private funding could give CLC an incentive to skew day-to-day representation of cases to further its advocacy goals or please its funders. A CLC position on what is good for children could influence a lawyer's decision on managing a case for a particular child, and CLC's desire to maintain itself as an institution could have a similar effect.

In fact, the danger exists even in the absence of private funding. Shadonna presented evidence that after a CLC lawyer subpoenaed a DCFS employee, CLC's Executive Director asked the lawyer to quash the subpoena and when that lawyer refused, repeatedly made the same request of the supervisor. The Executive Director was frank about her motivation for so attempting to influence client representation: the dependent child was a plaintiff in a Federal class action then pending, CLC was involved in that litigation, and the Executive Director thought it would "not look good" if CLC was not cooperating with DCFS.

The evidence on the Code of Civil Procedure section 170.6 policy is similar. The former Executive Director attempted to limit lawyers' ability to file affidavits, in order to advance the "interests of CLC as an entity."

The lead opinion would minimize this problem by casting CLC as a "public interest law firm." There is a critical difference. A public interest law firm may choose cases and clients in accordance with its announced goals, and litigate to further those goals. The clients, too, have a choice. If the law firm's goal is not the client's goal, the client can go elsewhere. CLC does not choose its cases, but is instead appointed by the court to represent clients -- children -- who know nothing of CLC's advocacy goals, and have no say in choosing counsel.

This is a particularly sensitive point because counsel for children in dependency cases have powers and responsibilities which are in my experience unique in the law. Children, particularly young children, are by virtue of their age unable to act as clients normally do. Their lawyers will necessarily be more personally involved and have more to say about litigation goals. Indeed, those lawyers are directed to advocate for the child's physical and emotional well-being. (Welf. & Inst. Code, 317.) They may be the holder of a client's privileges^[5](Welf. & Inst. Code, 317, subd, (f)), and in some cases may advocate positions contrary to the client's express wishes. (In re Alexis W. (1999) 71 Cal.App.4th 28; Welf. & Inst. Code, 317, subd.(e).) Great care must be taken to insure that the lawyer's decisions are made solely to benefit the client -- one client at a time -- and not the institution. "Child advocacy" and advocating for an individual client are not the same thing.

ARMSTRONG, J.

Turner, P.J., dissenting opinion

I. introduction

I respectfully dissent from the holdings of the lead and concurring opinions that reverse the order disqualifying the Childrens Law Center (the center) from representing the child, Charlisse C. I believe the juvenile court did not abuse its discretion when it granted the disqualification motion. The juvenile court reasonably could have found that while the center represented the mother, Shadonna C., the ethical restrictions imposed on a nonprofit legal services corporation recognized in Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1435-1445 were materially violated and, under established successive representation rules, disqualification was warranted. I agree though with the lead opinion that the center has standing to challenge the disqualification order.

Story continued as Part III..

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] For purposes of this analysis, it may be assumed that a violation of the safeguards approved in Castro,supra, 232 Cal.App.3d 1432, would require disqualification of both Center attorneys involved in a concurrent-conflict case, in which, by definition, both attorneys would be personally and directly involved in representing adverse interests. Nothing in Castro, however, states that the safeguards approved in that case represent the absolute minimum required to comply with the ethics rules in concurrent-conflict cases, nor is such a conclusion necessarily warranted, given the development of the law in this area in the more than fifteen years since Castro was decided.

^[2] The reference to appearance is not a holding and is contrary to later cases. (See DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 833.)

^[3] Many public interest law firms engage in advocacy while vigorously representing individual clients. (See, e.g., Federal Defenders of San Diego, Inc. v. United States Sentencing Commission (1988) 680 F.Supp. 26; Legal Aid Foundation of Los Angeles, Major Advocacy Report 2005 [highlighting the years efforts to support our assistance to individual clients by working to more broadly challenge conditions of poverty and injustice].)

^[4]Shadonna did present evidence of some problematic or potentially problematic practices in CLC during the relevant period, but they were not problematic in ways which affect the Castro analysis. For instance, there was evidence that when a lawyer left CLC, that lawyer's cases were reassigned without a lawyer-client consultation or a motion for relief under Welfare and Institutions Code section 317, subdivision (d). That might be a problem for the trial court or for new counsel, but does not seem to me to indicate that CLC had, in practice, broken down the walls that made it possible for DCLS to represent multiple parties in the same litigation. Similarly, at oral argument, the parties made much of the fact that under the DCLS system, an individual unit, titled "The Law Firm of [Unit Director]," was appointed. In this case, the minute order reads "CLC3 Attorney, Linda Jackson, appointed . . . ." Citing the relevant court rule (Super. Ct. L.A. County, Local Rules, rule 17.16) and its contract with the Administrative Offices of the Court, CLC asserts that it is the entity appointed for the child. I do see that appointment of CLC, rather than its individual units, could create the appearance that the units operate as one firm, and I believe that the appearance of a conflict is best avoided, especially where counsel is court-appointed, but an appearance of conflict is not grounds for disqualification. (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829.)

^[5]There was a representation in the trial court that Shadonna's counsel was the holder of her physician-patient privilege.