Cooper v. County of Sonoma
Filed 9/11/07 Cooper v. County of Sonoma CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
TIFFANY COOPER,
Plaintiff and Respondent,
A116197
v.
(SonomaCounty
COUNTY OF SONOMA, Super. Ct. No. SCV238861)
Defendant and Appellant.
______________________________________/
County of Sonoma (County) appeals the order denying its motion to disqualify attorney Gail Flatt from representing Tiffany Cooper, a County employee who has filed a disability employment discrimination action against the County. The trial court also denied the Countys request for certain protective orders. Countys primary claim of error is that Flatt should be disqualified because she received, reviewed and retained confidential, privileged and protected County documents and had ex parte communications with Countys managing agent, Linda Jenkins, while Jenkins was represented by Countys counsel in the action Flatt brought on behalf of Cooper, an existing client, against County.
BACKGROUND
At all relevant times Linda Jenkins was employed by County as a human resources manager and director of its equal employment opportunity/Americans with Disabilities Act Programs (EEO/ADA programs), in charge of handling claims of discrimination by County employees. Respondent Cooper was employed as a legal processor in Countys probation department.
Cooper Complaint for Disability Discrimination
On June 20, 2006, Cooper, represented by Flatt, brought an action against County for disability employment discrimination. Her complaint contains the following allegations:
Cooper uses a wheelchair because she was born with spina bifida. When she returned to work from a vacation in late March 2005 she requested additional time off because she needed some diagnostic tests that might reveal the need for surgery. Her supervisor made it clear that Cooper should not return to work because of her disability. Cooper underwent surgery and was on medical leave until June 20, 2005. On her return, her supervisor subjected her to a higher level of scrutiny because of her disability.
On August 5, 2005, following a meeting with various County personnel, including Jenkins, Cooper was placed on paid administrative leave due to reported seizures at work. In October 2005, Cooper met with Jenkins to discuss an alternate position in a different division; Jenkins gave her the name of the divisions supervisor and suggested Cooper telephone the supervisor about the job. In November 2005, at Countys direction, Cooper underwent a Fit for Duty examination at the Kaiser Permanente Department of Occupational Medicine. In December 2005, Coopers own neurosurgeon released her for work with no restrictions. County refused to allow her to return to work and insisted she undergo a neuropsychiatric Fit for Duty examination with Countys designated evaluator. Coopers attorney questioned the need for the second Fit for Duty examination.
In January 2006, County removed Cooper from paid administrative leave because the Kaiser physician who examined her in November 2005 determined she was unable to work due to suspected cognitive impairment as reported by her supervisor. She was placed on unpaid medical leave.
At the February 1, 2006 County-ordered neuropsychiatric examination, the designated evaluator required her to complete a questionnaire that included impermissible non-job related inquiries before he could perform the examination. Cooper left his office without undergoing the examination because he refused to direct her to an accessible restroom before she completed the questionnaire.
The rescheduled neuropsychiatric examination occurred March 1, 2006, but County and its designated evaluator insisted until the time of the examiniation that Cooper provide medical and social information about herself and her family that was not job-related or consistent with business necessity.
Motion to Disqualify
On August 4, 2006, County filed a motion to disqualify Flatt from representing Cooper.[1] Its motion was made on the grounds that Flatt and her law firm had received County documents and information protected by the attorney-client privilege and attorney work product doctrine regarding matters at issue in the Cooper litigation; Flatt and her firm had received privileged and confidential documents regarding disability discrimination claims by other County employees; Flatt had engaged in ex parte communications regarding disability issues with Jenkins without consent of Countys counsel; and irreparable injury would result to County if Flatt and her firm did not return the privileged documents to County and keep confidential the information they learned from Jenkins and the privileged documents. It supported its motion with the declaration of its attorney, Lisa Ann Hilario, an internal complaint for discrimination brought by Jenkins, the declaration of David Tyra, who was engaged by County to investigate Jenkinss internal complaint, and Tyras final investigation report.
a. Hilario Declaration
Hilario declared: On August 20, 2003, attorney Flatt, on behalf of Cooper, wrote to Jenkins regarding Coopers request for reasonable accommodation.
On March 29, 2006, Cooper filed a complaint with the DFEH alleging that County discriminated against her because she has spina bifida and uses a wheelchair, harassed her because of her disability, and failed to accommodate her disability. The DFEH issued a right to sue letter.
Jenkins was Countys EEO/ADA human resources manager, and was Countys representative in connection with Coopers request for accommodation. On behalf of County, Jenkins received Coopers first request for accommodation, made in June 2003. Jenkins communicated with County counsel and received legal advice regarding Countys response to the request for accommodation. She communicated with Coopers supervisor regarding Coopers request for accommodation. She retained an independent physician to speak with Coopers physicians and to perform a Fit for Duty examination. She corresponded with Flatt from August 20, 2003 until June 2006 regarding Countys position and response to Coopers claim. She attended at least two interactive process meetings with Cooper, Coopers supervisor and Coopers parents. She attended at least one interactive process meeting with Flatt. She communicated and participated in several meetings with County and outside counsel to discuss Coopers claim, lawsuit, and preparation of Countys handling thereof. She provided information to outside counsel in response to counsels request for information regarding matters at issue in Coopers lawsuit. Through these communications and meetings, Jenkins received Countys attorney work product and learned Countys attorneys legal opinions, mental impressions and strategies for handling Coopers claim and lawsuit.
In April 2006, Jenkins filed an internal complaint against County alleging discrimination based on her own disability. Jenkins retained Flatt to represent her in connection with this internal complaint. At the time Jenkins filed her internal complaint, Flatt was already representing Cooper in her disability claim against County. The supporting exhibits attached to Jenkinss internal complaint included typed and handwritten notes subject to the attorney-client privilege, attorney work product, and internal emails regarding Countys handling of disability claims made by County employees. At least one of these employees is represented by Flatt.
Hilario reviewed Jenkinss internal complaint, the attachments thereto, and the documents Jenkins provided to David Tyra, hired by County to investigate Jenkinss complaint. The attached documents included confidential correspondence exchanged solely between County employees and County and outside counsel providing employment law counsel to County. The privileged attorney-client communications attached to Jenkinss internal complaint and the documents she provided Tyra include privileged attorney-client communications and attorney work product regarding Countys policies and procedures for handling disability discrimination claims, Countys internal meetings with County counsel and County management regarding development of Countys EEO/ADA policies, and writings between County employees and County counsel regarding legal issues and opinions relevant to Countys handling of employee disability claims. Some of the documents related to Countys handling of Coopers disability discrimination claim and Countys handling of disability claims by other County employees. Many of the documents attached to Jenkinss internal complaint and those she provided to Tyra are labeled attorney-client privilege, confidential, or confidential correspondence.
The documents Jenkins submitted in support of her internal complaint and the additional documents she provided Tyra include communications that reflect the mental impressions, opinions and conclusions of County and outside counsel regarding Countys handling of disability claims, including Coopers claim.
On January 24, 2006, Flatt filed a disability discrimination action against County on behalf of employee Diane Pizza. On June 21, 2006, Hilario asked Flatt to withdraw as counsel for Pizza and return all privileged documents she had received from Jenkins. On June 23, Flatt responded, denying that any privileges or confidences had been breached. On June 27, 2006, Hilario spoke with Flatt in person about her concurrent representation of Jenkins and Pizza and the privileged documents attached to Jenkinss internal complaint. Flatt told Hilario that she had reviewed all the documents Jenkins had provided to her. In response to Hilarios comment that several documents were clearly marked attorney-client privilege, Flatt stated that she had to review the documents to know what was there. Flatt never informed County that she possessed the privileged materials. When Hilario suggested she should have stopped reviewing the documents when she saw the first document marked attorney-client privilege, Flatt responded that there wasnt anything in there that I didnt already know.
In June 2006, County filed a motion to disqualify Flatt from representing employee Pizza. As a result of that motion, Flatt lodged all documents she received from Jenkins with the court under seal pending a decision on that motion. None of the documents has been returned to County.[2] Flatt did not provide copies of the lodged documents to Countys counsel, so County does not know what documents were lodged under seal.
On July 11, 2006, Flatt notified Hilario that she had withdrawn from representing Jenkins on June 27, as a result of Countys motion to disqualify her from representing Pizza in Pizzas litigation against County. On July 13, Hilario requested Flatt to withdraw from representing Cooper and to return all privileged documents she had received from Jenkins. Flatt did not respond.
When Jenkins retained Flatt in April 2006, both knew that Flatt had been representing Cooper in a disability discrimination claim against County since at least August 2003 and that Cooper had filed a DFEH complaint in March 2006. Flatt was also aware of Jenkinss high-level management role in Countys EEO/ADA programs and specifically Jenkinss personal involvement in Coopers claims of disability discrimination. Flatt has also been aware since at least 2003 that Jenkins is Countys only manager for its EEO/ADA programs and that Jenkins is a key participant in almost all County employee requests for accommodation. Over the past several years, Jenkins has represented Countys interests regarding disability issues in numerous claims when Flatt represented a County employee. Jenkins and Flatt have been at opposite ends of the table in several interactive process meetings between County and County employees. Flatt knew Jenkinss high level management role before she engaged in ex parte communications with her regarding Countys disability policies.
In April 2006, Flatt received numerous privileged County documents from Jenkins when Jenkins filed her internal complaint. The documents were clearly labeled attorney-client privilege on their face. Flatt knew that Jenkins did not have authority to waive Countys attorney-client privilege or attorney work production protection.
Jenkins is sole manager of Countys equal employment and disability programs. She is supervised by the human resources director, who reports to the civil service commission. Jenkins plays a key management role at County. She receives requests for accommodation from employees, responds to employees requests on behalf of County, investigates and responds to disability discrimination claims on Countys behalf, meets with County and outside counsel to obtain their legal advice regarding Countys response to accommodation requests by employees and their attorneys, makes recommendations to County department heads about how employees requests for accommodation should be handled and actively works with County and outside counsel to prepare Countys defense to disability discrimination lawsuits.
In connection with EEO/ADA matters, Jenkinss job duties include responding to questions and providing comments and recommendations about Countys strategy; communicating and working with Countys counsel and risk management; meeting with department heads, county counsel and risk management to strategize; meeting with the EEO investigator to review the investigation plan for discrimination cases to be triaged with County and risk management; meeting with employees, department heads, County counsel and risk management about employees requests for reasonable accommodation; coordinating with physicians; advising department heads; attending internal case meetings; and updating key County policies, including Countys EEO policy, complaint procedure, and reasonable accommodation guidelines.
Jenkinss duties in handling an employees request for accommodation may change depending on the circumstances. Her responsibilities as manager of Countys EEO/ADA programs are as follows: The County employee submits a request for accommodation directly to Jenkins, who then contacts the employee and employees department head to discuss the request. Jenkins corresponds with the employee and, if the employee is represented by counsel, the employees counsel. She personally attends and leads an interactive process meeting with the employee and employees counsel. At the interactive process meeting the employees disability, the work restriction imposed by the employees physician, possible accommodation and Countys response to the employees request are discussed. If County believes the employee may not be disabled or not need accommodation and an independent medical opinion is needed, Jenkins sends the employees request and medical information to Kaiser Permanente for review. If it is clear that the employee needs accommodation, Jenkins meets with the employee and employees attorney to engage in an interactive discussion regarding the reasonable accommodations that might permit the employee to perform the essential functions of the job. Throughout this process Jenkins works closely with County counsel to obtain legal advice regarding Countys legal duties under state and federal disability laws. She communicates with County and outside counsel about counsels legal analysis and opinions regarding disability issues.
When an employee files a DFEH complaint, Jenkins investigates, or directs the investigation of the claims. Her investigation includes internal interviews of department heads, managers and County employees who work with the claimant, meeting and communicating with County counsel regarding Countys response to the DFEH complaint, reporting the results of the investigation to DFEH and working with County counsel to prepare Countys formal response to the complaint. If DFEH investigates the claim further, Jenkins attends and facilitates the DFEH interviews with County employees. If litigation is filed against County, Jenkins works closely with County risk management, County counsel and outside counsel to prepare Countys defense. Because of her key management role in Countys disability programs, Jenkins is a key County witness deposed in disability discrimination litigation and a key trial witness.
Neither Hilario nor anyone in County counsels office ever consented to Flatts ex parte communications with Jenkins.
b. Jenkinss Internal Complaint[3]
Jenkinss internal complaint, dated April 13, 2006, asserts: Since Jenkinss return from medical leave in November 2005, her supervisor twice asked her if she is aware of nonservice related disability retirement, alluded that the board of supervisors is unhappy with her, falsely accused her of not providing information and/or being resistant to supervision, slandered her in email to Jenkinss peers, and attempted to alter her job class specification substantially without prior discussion. Her supervisors demeanor is hostile and suspicious.
c. Tyra Declaration
Tyra declared: County retained his law firm to conduct an independent investigation of Jenkinss internal disability complaint. In connection therewith, he reviewed her internal complaint and attached supporting documents and personally interviewed her. The attached documents included documents labeled attorney-client privilege and confidential. Several of the typed County documents attached to Jenkinss internal complaint contained notes handwritten by Jenkins addressed to Gail. During their interview Jenkins informed him that Gail is Flatt, who represents her in connection with her internal complaint and to whom Jenkins provided a copy of her internal complaint and all attachments thereto. Following the interview, Jenkins sent him additional documents to support her claim. They included emails to members of Countys management and County counsel concerning the assignment of disability claims to outside counsel and emails between risk management and County counsel regarding an evaluation of County policies and procedures. The emails were marked confidential communication and were addressed to County counsel by name.
d. Tyra Report
Tyras final report of his investigation of Jenkins internal complaint states: Jenkinss complained that she was discriminated and/or retaliated against by her supervisor as a result of taking several weeks of disability related to a back condition in autumn 2005 and that her supervisor treated her inappropriately in the workplace. He reviewed at length Jenkinss written internal complaint and the supporting attachments. Jenkins had organized the documents by subtopics. Each subtopic grouping was introduced by a typed narrative describing the subtopic. Some of the descriptive narratives were addressed to Gail. One subtopic involved a series of events which, as Tyra learned during the course of his investigation, surrounded the handling of the Pizza case. Tyra understood that criticism arose regarding Jenkinss handling of the investigation of Pizzas disability claims and/or requests for reasonable accommodation, and that Jenkins believed the criticism was unjustified. To support her assertion that the criticism was unjustified, Jenkins attached to her internal complaint handwritten notes regarding conversations with others regarding the Pizza case.
Following their May 9, 2006 interview, Jenkins provided Tyra with internal County emails regarding Countys preparation for a mediation in the Pizza case, in further support of her assertion. Tyras report noted that he had direct confirmation from Jenkins that she had provided Flatt with all the supporting documents attached to her internal complaint, but he did not have direct confirmation that she had provided Flatt with these emails that she sent him after their interview. He thought it reasonably likely that she had provided them to Flatt, given that she had provided Flatt all the other documents. He found this troubling because Flatt represents Pizza and attended the mediation on Pizzas behalf, and he learned during his interview with Jenkinss supervisor that Jenkins had attended the Pizza mediation on behalf of County.
On May 26, Tyra interviewed a County risk analyst. The risk analyst informed Tyra that there had been an issue regarding the mishandling of medical records releases in the Pizza case, that she and Jenkins had discussed the Pizza case, that Jenkins had confirmed to her (the analyst) that Jenkins had discussed the situation involving the Pizza case with her counsel, whom the analyst suspected was Flatt. On June 1, Tyra interviewed Jenkinss supervisor. They had an extensive discussion regarding the Pizza case. The supervisor informed him that issues surrounding the handling of the case surfaced during Jenkinss disability leave. The supervisor acknowledged she had been critical of certain aspects of Jenkinss handling of the Pizza file and confirmed that she (the supervisor) sent an email stating as much.
Opposition to Motion to Disqualify
Opposition to Countys motion was supported by declarations of Flatt and Cooper.
a. Flatt Declaration
Flatt declared: She has practiced law in Sonoma County since 1982. She became interested in disability discrimination law in 1992 and since then has handled 61 cases in Northern California counties and federal courts, plus had consultations with clients about disability issues. She has had approximately seven cases in which County was the defendant.
She represented Cooper in a reasonable accommodation matter in 2003 which was resolved in 2003. She has represented Cooper in her current disability claim since August 2005. Jenkins telephoned her in February 2006 requesting Flatt to represent her in her own disability discrimination claim against County. Before responding to Jenkinss request, Flatt obtained express authorization from Cooper to represent Jenkins. She then arranged to meet with Jenkins only after advising her that they would only discuss her own matter; she cautioned Jenkins that they could not discuss any other cases, nor could Jenkins discuss anything she had heard or learned from any County attorneys. After their initial February 2006 contact regarding Flatts representation of her, all their discussions were limited to Jenkinss own case.
In April 2006 Jenkins dropped off a folder of materials at Flatts office; Flatt was not in the office at the time. Flatt first looked at the folder a week later. She noted that it contained Jenkinss internal complaint, accompanying narrative, and back-up documents, none of which Flatt had previously seen. She noted that Jenkins had redacted portions of the documents, a few of which were labeled attorney-client privilege. Flatt briefly reviewed the materials, returned them to the folder, and placed the folder on a file room shelf. She did not look at it again until she received the June 21, 2006 letter from Countys attorney requesting that she withdraw from representing Pizza. She informed Jenkins on June 27, 2006 that she no longer represented Jenkins and has not since communicated with her.
Jenkins had a chance encounter with Hilario at the Sonoma County courthouse on June 27. She told Hilario that the folder from Jenkins contained documents marked attorney-client privilege, but until she looked at them, she could not know their privileged nature. She did not tell Hilario she had reviewed all the documents, and she deliberately did not read an email from Countys attorney, because it appeared to be an analysis of an appellate decision. When she returned to her office that day she sealed the folder Jenkins had given her in a large envelope, dated the envelope, and, after numerous unsuccessful attempts, lodged the sealed documents with the court. She did not remove or copy any of the documents before sealing them, nor did she make any notes regarding the documents or their content.
Flatt has represented clients in disability matters against County since 1999. She is familiar with the attitude of County departments, including the probation department, toward disabled employees, and with Countys written and actual disability policies. She has had hundreds of pieces of correspondence with County regarding disability issues. In her concluding paragraph, Flatt avers: There are no documents, attorney-client privileged, confidential, or otherwise in the folder Ms. Jenkins gave me that provided me any information about the Tiffany Cooper case that I did not already possess from my own personal involvement and observation.
b. Cooper Declaration
Cooper declared that she retained Flatt in August 2003 and Flatt helped her obtain reasonable accommodations. She retained Flatt again in August 2005. In February 2006 she gave Flatt express consent to represent Jenkins after she and Flatt discussed thoroughly the ramifications of Flatts representation of Jenkins. Flatt informed Cooper of the motion to disqualify. Cooper would like Flatt to continue representing her because Flatt has represented her off and on for more than three years and is familiar with her situation. It would be difficult for Cooper to find another attorney with Flatts skill and experience in the area of disability discrimination.
Reply Declarations
County submitted three declarations in reply to the opposition to its disqualification motions.
a. Hilario Declaration
Hilario declared: She reviewed the email about a legal analysis by outside County counsel to which Flatts declaration referred. The analysis concerned a court decision regarding a public entitys duty to accommodate employees disabilities. In connection with preparing Countys defense to Coopers DFEH claim and subsequent complaint, Hilario spoke personally with Jenkins about the Cooper case twice in May 2006 and personally met with Jenkins in May and June 2006 to discuss the matter.
b. Mount Declaration
Attorney Kathy Mount was retained by County to conduct an independent investigation of allegations that Jenkins provided Countys attorney-client privileged documents, attorney work product and other confidential material to Flatt and, if so, to determine if Jenkins violated any County rules by so doing. She declared: She reviewed Jenkinss internal complaint and its supporting documents. The documents included County documents regarding actions filed by Cooper. Mount interviewed Jenkins as part of her investigation. The interview was recorded and transcribed. During that interview Mount asked Jenkins when Flatt first represented her. Jenkins replied that she contacted Flatt some time in October 2005, during her medical leave, because, despite back and forth contacts between Jenkins and Jenkinss office concerning her doctors indication that she would need a reasonable accommodation to go back to work, nothing was being done. Flatt stopped representing her in mid-June 2006.
c. Berk Declaration
Jeffrey Berk is a deputy county counsel. He declared: He is the deputy assigned to provide legal advice when issues arise concerning disabled County employees. He works with Jenkins in evaluating and responding to employees requests for disability accommodation. Jenkins was Countys representative in the Cooper case and is an important key witness in Coopers action. Through his privileged communications at meetings and other privileged attorney-client communications, he has imparted to Jenkins his legal opinions, mental impressions, analyses and other attorney work product regarding Coopers case. Jenkins was involved with Coopers disability issues until Cooper filed her action in June 2006. Jenkins communicated with Coopers supervisor and arranged for a physician from Countys occupation health provider to speak to Coopers physicians and perform a Fit for Duty examination. Jenkins corresponded with Flatt regarding the Cooper case and attended at least one interactive process meeting with Flatt. Jenkins communicated with Berk regarding his mental impressions and strategies for handling the Cooper case.
Hearing
At the October 11, 2006 hearing on the motion, Hilario, Countys attorney, argued that County was trying to disqualify Flatt from using what she learned from Jenkins who was a current County employee and key witness in the Cooper case, against County; that Jenkinss internal complaint and Coopers action had the common issue of Countys failure to accommodate a disability; that the human mind would not allow Flatt to separate or compartmentalize the privileged County information she learned while representing Jenkins in Jenkinss internal complaint from what she learned from Jenkins while representing her other clients in their disability cases; that Hilario met with Jenkins for hours in Hilarioss office regarding Pizza and Cooper, and it was logical to assume that Flatt, while meeting with Jenkins, discussed with Jenkins how County handles disability matters. She informed the court she had not seen the documents from Jenkins that Flatt lodged with the court.
Flatt informed the court that during the period she represented Jenkins, she and Jenkins honored Flatts requirement that they could have no discussion regarding any other pending cases. She argued that she could not return the documents Jenkins had voluntarily given her because she had to maintain her clients confidences. She commented that she recalled an email in the documents marked attorney-client privilege, but that it meant nothing to her because she did not recognize the attorneys name or firm and it contained no information about a specific case; it simply complimented Jenkins on her background and the way she conducted herself at a meeting. She recalled the attorney-client privilege notation on a legal analysis document but she did not read or care about the analysis because she was familiar with the case and did not need to know what the analyst said. She could not think of any attorney-client privilege documents in the folder that would have given her a leg up in the Cooper case. She commented that her 60-year-old brain did not remember things from June 2006 well enough in October 2006, i.e., from the time she sealed the documents to the time of the hearing, to be able to tell anyone much about the things. She reiterated that she didnt need Jenkins to tell her how County handles disability cases because she has been handling disability cases against County long before she represented Jenkins and has seen firsthand how it handles such cases.
Order
The court found that there was no doubt that Flatt suffered a lapse in judgment by meeting with and taking on Jenkins as a client. However, it found the lapse did not rise to the level of requiring disqualification because Flatt had terminated her representation of Jenkins and stated that she did not examine, copy or use any of the documents Jenkins gave her. It granted the motion only to the extent that Gail Flatt must hand over all the confidential materials still in her possession which she obtained from Linda Jenkins, and that she was precluded from revealing or using any information gained from such documents unless the information was properly obtained in discovery. In all other respects, it denied the motion for disqualification.
DISCUSSION
Standard of Review
The trial courts decision on a disqualification motion is generally reviewed for abuse of discretion. (People ex rel. Depart. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) If the trial court resolved disputed factual issues, the appellate court should not substitute its judgment for the trial courts express or implied findings supported by substantial evidence. (Ibid.) If there are no material disputed factual issues, the appellate court reviews the trial courts determination as a matter of law. (Id. at p. 1144.)
The resolution of factual issues that arise from competing declarations is conclusive on the appellate court, which resolves conflicts in the declarations in favor of the prevailing party. (Ochoa v. Fordel, Inc. (2007) 146 Cal.App.4th 898, 906.) If the declarations do not reveal disputed material facts, the reviewing court is not obligated to defer to the inferences drawn by the trial court in resolving factual disputes for which the parties did not submit direct evidence. (Ibid.)
No Abuse of Discretion
The crux of Countys contention that Flatt should be disqualified from representing Cooper in her disability employment discrimination action against County is that Flatt, while representing Jenkins in her internal complaint against County for disability employment discrimination, obtained from Jenkins privileged and confidential information regarding the Cooper action to which Jenkins, as manager of Countys office for County employee discrimination claims, had access. While we echo the trial courts observation that Flatt exhibited a lapse of judgment in agreeing to represent Jenkins, insofar as she was already representing County employee Cooper on a disability discrimination claim and knew Jenkins played a pivotal role in processing such disability discrimination claims for County, we conclude the court did not abuse its discretion in denying the motion to disqualify Flatt from representing Cooper.
Flatt and County presented conflicting declarations regarding whether Flatt obtained confidential information from Jenkins that would give her an unfair advantage in prosecuting the Cooper case. The court denied the motion to disqualify Flatt after expressly stating that she had represented that she did not examine, copy or use any of the documents in the folder Jenkins delivered to Flatts office. Thus, the court impliedly accepted as credible Flatts representation regarding her handling (or non-handling) of the documents. In so doing, it impliedly accepted Countys assertion that at least some of the documents were privileged or confidential.
The courts ruling also implies that it accepted as credible Flatts statements that during the period she represented Jenkins, the discussions between her and Jenkins were limited to Jenkinss own case and did not concern other cases or other information Jenkins had learned from Countys attorneys.
Resolution of credibility questions falls within the province of the trial court, which sits as the trier of fact. (See Ochoa v. Fordel, Inc., supra, 146 Cal.App.4th at p. 910.) Nothing in the evidence on this record reflects a patently erroneous credibility resolution. Flatt declared she briefly reviewed the documents in the folder Jenkins delivered to her office in April 2006; she could not know the nature of the documents marked privileged without looking at the documents; she specifically did not read one document that appeared to fall within Countys attorney-client privilege; and she sealed the entire folder on June 27, 2006 without copying or taking any notes regarding the documents. From Flatts statement that no documents in the folder provided her any information about the Cooper case that she did not already possess from her personal involvement or observation, one could infer that she had to read them to be able to make such a statement. Yet the trial court apparently declined to draw this inference, drawing instead a reasonable inference from other portions of Flatts declaration that she gave the documents, at most, a cursory look. Furthermore, her declaration that she cautioned Jenkins not to discuss any case except her own and not to discuss any information she learned from Countys attorneys was not disputed by a contrary declaration from Jenkins.
Moreover, even if Flatt reviewed the attorney-client documents in the Jenkins folder thoroughly, California cases have consistently concluded that an attorneys mere exposure to confidential information of the opposing party does not mandate disqualification. (See Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 841-845 (Neal).) In Neal, plaintiff Neal was a human resources manager for Health Net. In that capacity, she reviewed and responded to a discrimination complaint from another employee, Brockett, a secretary in Health Nets legal department. (Id. at p. 834.) After Neal was terminated from Health Net, she engaged attorney Traylor to represent her in a wrongful termination action due to discrimination. (Ibid.) While the Neal litigation was pending, Brockett gained access to and reviewed Health Nets Neal litigation computer files. (Ibid.) Brockett also contacted Traylor about representing her in her own action for employment discrimination, which he agreed to do. (Ibid.) However, he specifically advised her that she could not give him any information she possessed regarding Neals case. (Id. at p. 836.) Two weeks later, Health Net dismissed Brockett because she had reviewed the Neal litigation file. (Id. at pp. 834, 836.) Health Net moved to disqualify Traylor from representing Neal because of his representation of Brockett, who admitted gaining access to and reviewing the Neal litigation file. (Ibid.) In opposition Traylor declared that Brockett told him she had no information regarding the Neal litigation, and he denied receiving any such information from her. Brockett declared she did not disclose any such information to him. (Id. at pp. 836-837.)
The trial court granted the disqualification motion and the Court of Appeal reversed on six grounds. (Neal, supra, 100 Cal.App.4th at p. 850.)
(1) There was no evidence that legal secretary Brockett disclosed any information, confidential or otherwise, about the Neal case to attorney Traylor.
(2) To the extent there could be a reasonable inference of disclosure, no applicable legal standard supported disqualification of Traylor as Neals attorney as a sanction for Brocketts viewing of Health Nets Neal litigation file.
(3) A party cannot improperly disclose confidential information to his or her own counsel in the prosecution of his or her own lawsuit. To do otherwise . . . would defeat the purpose of confidentiality, which is to promote full and open discussions between attorney and client. (100 Cal.App.4th at p. 844.)
(4) Disqualification is an ineffective remedy because it would not prevent the party from giving his or her new counsel the information, which would leave the adversary in the same position as before.
(5) The purpose of disqualification is prophylactic. Attorneys may not be disqualified purely to punish or discipline them.
(6) Where an adversarial relationship develops, the rights of the employer to avoid unwarranted public disclosure of its confidences must be balanced against the right of the employee to maintain his or her lawsuit. In lieu of disqualification, less drastic measures, such as protective orders or in camera proceedings, can be taken to protect client confidences. (100 Cal.App.4th at p. 844.)
Given the factual similarities between Neal and the instant case, the Neal rationale is appropriately applicable here. There was no evidence that Flatt discussed the Cooper case with Jenkins during the four months Flatt represented Jenkins. To the extent the folder of documents Jenkins provided Flatt contained privileged or confidential documents of County, Flatt did not study or avail herself of them.
If we assume Flatt did discuss County claims handling strategies with Jenkins, Flatt asserts in her declaration that she has represented County employees in disability matters for seven years and has had an abundance of correspondence with County concerning disability issues. As a consequence she is familiar with its disability policies and with the attitude of various County agencies toward disabled employees, including the agency that employed Cooper. The trial court could reasonably infer, in light of her years of experience litigating disability claims against County, that the confidential material in the Jenkins folder and any privileged information Jenkins shared in conversation with Flatt would simply reflect County tactics and procedures with which Flatt was already well-acquainted. The disclosures would not provide her any significant and unfair advantage in representing Cooper.
Finally, the court could take into account the fact that by August 2006, when County moved for disqualification, Flatt had been representing Cooper in Coopers present disability discrimination claim since August 2005 and had represented her in another disability claim in 2003. The courts order was drafted to avoid the hardship to Cooper of having to replace Flatt, an attorney familiar with her claims particularly and disability claims generally, with a new and unknown attorney, and yet still protect Countys interest in nondisclosure of its privileged information, by imposing the requirement that Flatt turn over all confidential documents and not reveal or use any information she may have gained from these documents.
County argues that Neal is distinguishable and inapplicable. It asserts that attorney Traylor in Neal did not possess confidential Health Net information from client and former Health Net legal secretary Brockett about his client Neals litigation, whereas Flatt, through Jenkins, undisputedly possessed confidential County documents regarding the Cooper litigation, and disclosed that information to Flatt. County additionally argues that Jenkins was actually involved in the Cooper case and had communicated about it with Flatt, unlike legal secretary Brockett in Neal, who was not involved with Health Nets defense of the Neal litigation. County also argues that, unlike Flatt who never informed County that she was representing Jenkins, attorney Traylor immediately informed Health Net that he was representing its former legal secretary Brockett.
As discussed, ante, the trial court here impliedly found credible Flatts statements that she did not study or use the documents provided by Jenkins and that she did not discuss with Jenkins any other cases or confidences given to Jenkins by County attorneys, and there is no evidence on the record to suggest Flatts declarations are inherently incredible.
In any case, Neal concluded that even if Brockett did disclose to attorney Traylor confidential information about the Neal litigation that she had obtained by reviewing Health Nets Neal litigation computer files, that disclosure did not automatically warrant disqualification. As we discuss more fully in Substantial Prejudice, post, the trial court here could reasonably conclude that Flatt did not obtain a litigation advantage in her representation of Cooper by seeing the documents attached to Jenkinss internal complaint that Jenkins brought to Flatts office.
Finally, the fact that attorney Traylor informed general counsel for Health Net that he would be representing secretary Brockett three days after he agreed to do so was not a factor in the Court of Appeals conclusion that the disqualification motion was erroneously granted. (See Neal, supra, 100 Cal.App.4th at pp. 843-850.) Consequently, it is an irrelevant distinguishing factor between Neal and the instant case.[4]
Citing In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596 (Complex Asbestos) and Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067 (Shadow Traffic), County argues that Flatt failed to demonstrate that Jenkins did not disclose confidential County information through oral communications. In Complex Asbestos a paralegal worked for the Brobeck law firm for three years exclusively in the field of asbestos litigation defense. Following his termination from the Brobeck firm, he went to work for the Harrison law firm, which represented plaintiffs in pending asbestos litigation in which several defendants were represented by the Brobeck firm. (232 Cal.App.3d at pp. 579, 580.) It was undisputed that at approximately the time the paralegal applied to work at the Harrison firm but while still employed by the Brobeck firm, he looked at the Brobeck firms computer records for the cases filed by the Harrison firm, although he had no responsibility for any of the Harrison firm cases at the time. (Id. at pp. 583, 584.)
In affirming the defendants motion to disqualify the Harrison firm because of the paralegals conflict of interest, Complex Asbestos stated: Absent written consent, the proper rule and its application for disqualification [of an attorney] based on nonlawyer employee conflicts of interest should be as follows. The party seeking disqualification [i.e., the asbestos defendants] must show that its present or past attorneys former employee [i.e., the paralegal who had worked at the Brobeck firm] possesses confidential attorney-client information materially related to the [present] proceedings before the court. The [moving] party should not be required to disclose the actual information contended to be confidential. However, the court should be provided with the nature of the information and its material relationship to the proceeding. [Citation.] [] Once this showing has been made, a rebuttable presumption arises that the information has been used or disclosed in the current employment [i.e., the paralegals employment at the Harrison firm]. The presumption is a rule by necessity because the party seeking disqualification [the asbestos defendants] will be at a loss to prove what is known by the adversarys attorneys and legal staff [i.e., the Harrison firm]. [Citation.] (ComplexAsbestos, supra, 232 Cal.App.3d at p. 596, fn. omitted.)
Shadow Traffic concluded the Complex Asbestos holding regarding the creation of a rebuttable presumption of disclosure was applicable to a disqualification motion involving expert witnesses. (Shadow Traffic, supra, 24 Cal.App.4th at p. 1085.) Metro Traffic Control, Inc., (Metro) sued Shadow Traffic for business torts. (Id. at p. 1071.) It held a one hour meeting with four members of an accounting firm to discuss having accountants from the firm testify as expert witnesses at trial. Aspects of Metros action were discussed during the meeting. (Ibid.) Metro decided not to retain the accounting firm. Several weeks later Shadow Traffic engaged one of the four accountants as a trial expert. (Id. at p. 1072.)
The appellate court upheld the order granting Metros motion to disqualify Shadow Traffics attorneys. It concluded there was sufficient evidence for the trial court to find (a) the accountant retained by Shadow Traffic had obtained confidential information during his one hour meeting with Metro, and (b) Shadow Traffic had not rebutted the presumption that the accountants information about Metro had been disclosed to them. (Shadow Traffic, supra, 24 Cal.App.4th at pp. 1085-1087.)
Complex Asbestos and Shadow Traffic are distinguishable because they involve persons who obtained confidential information about pending litigation while working for or consulting with the attorneys representing one party to the lawsuit and who then went to work or became consultants for the attorney representing the opposing party to the same lawsuit. Unlike the Complex Asbestos paralegal and the Shadow Traffic expert accountant, Jenkins did not switch sides by leaving her County employment to work for or consult with Flatt on the Cooper action. Rather, she engaged Flatt for a matter independent of the Cooper action: her own claim of employment discrimination.
Moreover, even if the Complex Asbestos rebuttable presumption were applicable here, so that there was a presumption that Jenkins had disclosed to Flatt whatever confidential information she possessed about the Cooper action, the trial courts statement that Flatt did not examine, copy or use the documents Jenkins gave her is, in effect, a conclusion that Flatt had rebutted the presumption.
Substantial Prejudice
County contends disqualification is warranted because it will be substantially prejudiced by the confidential information Flatt obtained from Jenkins. [D]isqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation. Though such information cannot be unlearned, and the lawyer who obtained it cannot be prevented from giving it to others, disqualification still serves the useful purpose of eliminating from the case the attorney who could most effectively exploit the unfair advantage. [Citation.] Disqualification is inappropriate, however, simply to punish a dereliction that will likely have no substantial continuing effect on future judicial proceedings. [] (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309.)
In finding that Flatts lapse of judgment in taking on Jenkins as a client does not rise to the level that the motion to disqualify should be granted, the trial court impliedly found that County was not prejudiced by Flatts cursory viewing of the folder of documents Jenkins had given her. On the record before it, the courts finding was supported by substantial evidence.
In her declaration in support of the motion to disqualify Flatt, attorney Hilario declared that she had reviewed Jenkinss internal complaint and the exhibits attached thereto. Hilario described some of these attached exhibits as privileged attorney-client communications and attorney work product and as containing handwritten notes on them from Jenkins to Flatt. Hilario declared that she also reviewed the additional documents Jenkins had provided to independent investigator Tyra. Hilario also declared that in April 2006 Flatt received numerous privileged County documents from Jenkins when Jenkins filed her internal complaint; that from April through June 27, 2006, Flatt had in her possession Jenkinss internal complaint, the exhibits attached thereto, and the documents Jenkins had given to Tyra; and that after the County moved in June 2006 to disqualify Flatt from representing Pizza, Flatt lodged all the documents she received from Jenkins with the court under seal.
Tyra declared that prior to interviewing Jenkins he reviewed her April 2006 internal complaint and attached documents. He interviewed her on May 9, 2006, and, following their interview, she gave him a series of privileged and/or confidential emails regarding a review of pending county cases.
In opposition Flatt declared that in April 2006 Jenkins provided her a folder that contained Jenkinss internal complaint, Jenkinss narrative, and back-up documents, some of which were labeled attorney-client privilege. As we have recounted, she further declared that on June 27, 2006, she sealed this folder and lodged it with the court. At the hearing on the motion Flatt, while admittedly not under oath, repeated that she had sealed up and lodged with the court everything Jenkins had given her. Implicit from Flatts declaration and her statements at the hearing is that she could not know what privileged emails Jenkins gave Inspector Tyra because everything Flatt received from Jenkins was delivered to her office in April 2006, and Jenkins did not give Tyra the privileged emails until after her May 9, 2006 interview with him.
Thus, although Hilario declared that County does not know what documents were lodged under seal, and she reiterated at the hearing that I have not seen the documents Flatt lodged under seal, the court could reasonably infer that, in fact, Hilario had seen all these documents. While she may not literally have seen the exact pieces of paper that Flatt had sealed and lodged, she knew what was contained in the lodged documents and had access to the same documents. Moreover, at the hearing Flatt, without objection from Countys attorneys, urged the court to look at the sealed and lodged documents, implying that, by doing so, the court would see that she could not have gained any litigation advantage by having noticed documents marked attorney-client privilege or confidential. Indeed, Hilario declared that the exhibits to Jenkinss internal complaint would be available for the courts in camera review, if necessary, and, as just set out, those exhibits constituted the sealed and lodged documents.
The courts order denying the motion to disqualify does not specify that it looked at the lodged documents. On a silent record the trial court is presumed to have been aware of and followed the applicable law when exercising its discretion. (In re JacobJ. (2005) 130 Cal.App.4th 429, 437.) The appellate court cannot presume error where the record does not establish on its face that the court misunderstood the scope of its discretion. (Ibid.) Therefore, we presume the trial court understood it had to assess whether Flatt, in looking through the documents attached to Jenkinss internal complaint, obtained information likely to be used to her advantage against County in representing Cooper.
We have reviewed these lodged documents. They are not Countys specific files on Coopers claims, and the references to Cooper contained in these documents are, at best, oblique, and so reasonably appear to have had marginal bearing on the Cooper case. Furthermore, as is undisputed, Flatt was familiar with Countys modus operandi for handling disability claims from her seven years of representing disabled County employees, including her frequent contacts with Jenkins in Jenkinss capacity as human resources manager of Countys disability program. Thus, the documents do not undermine the trial courts conclusion from the evidence before it that the documents contained few surprises and gave Flatt little confidential information to exploit. Under the circumstances, we find no abuse in the courts implied finding of absence of prejudice.
Breach of Ethical Standards
County contends Flatt should be disqualified for breach of the ethical standard set forth in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657 (State Comp.). State Comp. held that when a lawyer receives materials that obviously appear to be subject to an attorney-client privilege or are otherwise clearly confidential or privileged, and where the materials were apparently sent inadvertently, the lawyer should refrain from examining the documents any more than is essential to ascertain if the materials are privileged and, if she ascertains that they may be inadvertently delivered privileged attorney-client material, should immediately notify the party entitled to the privilege.
As Gregori v. Bank of America, supra, 207 Cal.App.3d at pages 308-309 observed, whether the misconduct claimed to warrant disqualification is proscribed by an ethical norm or a disciplinary rule or may be characterized as failure to avoid the appearance of impropriety, disqualification is determined by the same standard: is it reasonably probable the information obtained through the misconduct will likely be used to the recipients advantage against the opponent in the litigation? Here, based on the trial courts factual findings, the answer is no.
CONCLUSION
That a lawyers conduct was unquestionably unprofessional, ill-advised, and a manifestation of poor judgment does not, ipso facto, mandate disqualification. (Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 309.) Taken as a whole, the evidence on this record does not establish that Flatt obtained information from Jenkins that could be unfairly used to her client Coopers advantage. Therefore, we cannot say the trial court abused its discretion in denying the motion to disqualify.
DISPOSITION
The order is affirmed.
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Jones, P.J.
We concur:
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Simons, J.
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Needham, J.
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[1]On August 1, 2006, the trial court granted Countys ex parte application for an order that its motion to disqualify attorney Flatt, related orders, and all moving and opposing papers and exhibits for the motion be placed under seal. Pursuant to the parties stipulation at oral argument, the record on
