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

APPEAL from an order of the Superior Court of Los Angeles County, Stanley Genser, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Reversed.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke and Seth M. M. Stodder for Objector and Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Peter Ferrera, Assistant County Counsel, for Plaintiff and Respondent.

John L. Dodd & Associates and John L. Dodd; John Cahill, under appointment by the Court of Appeal, for Defendant and Respondent and Minor.

introduction

The Childrens Law Center of Los Angeles (the Center) appeals from an order of the juvenile court disqualifying the Center from representing Charlisse C. (child), a child in a dependency proceeding. The motion to disqualify was filed by childs mother, Shadonna C. (mother), age 19, a former client of the Center. The juvenile court disqualified the Center on the ground that the Center had violated the safeguards against conflicts of interest in concurrent representations approved by the Courts of Appeal in Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1435-1445 (Castro) and People v. Christian (1996) 41 Cal.App.4th 986, 991-1002 (Christian). This court reverses the disqualification order.

The Center is a publicly funded, nonprofit law office that represents parties in the Los Angeles County Juvenile Dependency Court. The Center is organized into three units, which are intended to function as independent law firms for conflict of interest purposes. The Centers Unit 1 (or its predecessor) represented mother when she was a foster child in the dependency system. From 2002 to 2005, Unit 2 represented childs older sibling, who was adopted by a grandparent. In this case, Unit 3 undertook to represent child when the Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition, pursuant to section 300 of the Welfare and Institutions Code,^[1]concerning child. An attorney appointed to represent mother in the dependency proceeding asserted a conflict of interest, claiming that Unit 3 should be disqualified from representing child in this proceeding due to alleged breaches in ethical screens established within the Center between Units 1, 2, and 3. The alleged breaches occurred several years ago, and there is no evidence that any such breaches involved information concerning the parties in this case.

In this case involving successive representations, past breaches in the Centers ethical screens do not require disqualification of childs attorney when mother has failed to demonstrate a reasonable possibility that confidential information relating to Unit 1s prior representation of mother would be shared with or be readily accessible to childs current attorney in Unit 3. Under these circumstances, knowledge of confidential information about mother need not be imputed to childs attorney.

Contrary to the test employed by the juvenile court, the issue raised by mothers motion to disqualify the Center is not whether the Centers recent administrative reorganization and the other conduct attributed to the Center and its director gave rise to the appearance of a conflict of interest. Nor is the issue, as seemingly considered by the juvenile court, whether the Centers reorganization and other conduct, in the abstract, strictly adhered to the specific safeguards approved by the court in Castro, supra, 232 Cal.App.3d 1432.

Rather, mothers motion for disqualification raises the issue of whether, in the circumstances of this case, there is a conflict of interest that requires the disqualification of childs attorney. Unlike Castro, supra, 232 Cal.App.3d 1432, and Christian, supra, 41 Cal.App.4th 986both of which involved the concurrent representation of clients with conflicting intereststhis case involves the successive representation of clients with conflicting interests. Thus, whether there is a disqualifying conflict in this case turns on whether it is reasonably likely that confidential information relating to mothers prior representation by the Centers Unit 1 would be shared with or be readily accessible to childs current attorney in the Centers Unit 3. (See Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 710 (Jessen) [where the former attorney-client relationship is peripheral or attenuated instead of direct, then the presumption [that the attorney acquired confidential client information] will not be applied in the absence of an adequate showing that the attorney was in a position vis--vis the client to likely have acquired confidential information material to the current representation].) The record in this case does not support the juvenile courts conclusion that disqualification is required. Furthermore, because the juvenile court disqualified the Center based entirely on structural factors that bear no relation to any particular, identifiable case, affirming the juvenile courts order in this case would, in effect, require the unwarranted disqualification of the Center in virtually every case involving either the concurrent representation of multiple siblings or the successive representation of a parent or sibling and a child.^[2]

background

The County of Los Angeles created the Center, formerly called Dependency Court Legal Services (DCLS), to provide legal services to parents and children in the dependency court, and specifically to provide representation when legal services are required under section 317. Effective July 1, 2005, such legal services are provided by the Center pursuant to a contract with the Administrative Offices of the Courts (the 2005 Agreement).

Prior to July 1, 2005, DCLS operated under an agreement with the Los Angeles County Board of Supervisors (the 1990 Agreement) that required DCLS to maintain a structure that permitted up to three independent attorneys to be assigned to represent different parties in the same proceeding, without giving rise to a disqualifying conflict of interest. To the extent relevant here, the 1990 Agreement required DCLS to maintain an operating structure as follows: 1. [DCLS] 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. [DCLSs] 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 [DCLS]. []  7. [DCLSs] 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. [DCLSs] 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.

The 2005 Agreement changed the Centers operating structure insofar as conflicts of interest are concerned. Section B.2 of the 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 law. []  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.

On July 26, 2006, the DCFS, which is not a party to this appeal, filed a juvenile dependency petition concerning child. The petition alleged that child, 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. The petition further alleged that in January 2002, at the age of 14, mother gave birth to childs older sibling, Donna C., who had been adjudicated a court dependent and ultimately adopted by a grandparent. The detention report stated that mother was a former foster youth.

At the detention hearing on July 26, 2006, the juvenile court appointed an attorney not employed by the Center to represent mother. The juvenile court then appointed an attorney from Unit 3 of the Center to represent child. The minute order provided, CLC 3 Attorney, LINDA JACKSON . . . , appears and is appointed to represent the minor(s).

On August 18, 2006, mother filed a written motion to disqualify the Center and its Unit 3 as counsel of record for child and 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. Mother alleged that the Centers operating procedures changed under the 2005 Agreement and that certain events had occurred that compromised the independence of the Centers three units. Citing City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 851-853 (Cobra Solutions), mother argued that she was a former client of the Center^[3]and that a Center attorney could not ethically take a position adverse to her without breaching its continuing duty of loyalty to her.

With respect to the Centers operating procedures, mother referenced an October 20, 2005 memorandum to the Centers staff from its director, Ms. Miriam Krinsky. The memorandum provided:

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 [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 unit 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 attorney the 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.

Mother submitted additional evidence that included the following: In January 2003, Ms. Krinsky requested that an attorney in one of the units quash a subpoena for an employee of DCFS; in 2003, Ms. Krinsky asked questions indicating that she had knowledge about a case in one of the units; in June 2003, Ms. Krinsky had the Centers computer administrator put her e-mail address on the interoffice e-mail group of each of the three law units, although this practice was discontinued shortly thereafter; in 2003, Ms. Krinsky imposed a policy on all three units that required her approval before a Code of Civil Procedure section 170.6 affidavit of prejudice could be used on a blanket basis or in a class of cases to disqualify a judicial officer, although this procedure was suspended less than a year later; in 2005, when an attorney left the Center, Ms. Krinsky transferred cases among the three units; Ms. Krinsky once asked one of the attorneys in Unit 2 about a case; secretaries transferred among the units; the Center terminated the employment of one of the attorneys in one of the units; and the units shared the same library.

At the disqualification hearing on September 22, 2006, the juvenile court stated: I get the impression that [the Center] says one thing and does something else. []  They have established a structure which they claim they strictly adhere to, but the underlying facts suggest otherwise. The juvenile court concluded that, regardless of the Centers internal operating procedures, the Centers ethical walls may have been breached giving the appearance of conflict. The juvenile court indicated that it would grant an evidentiary hearing before ruling on the matter, but the Center declined the offer and submitted on the tentative ruling. The juvenile court granted the disqualification motion but stayed the order for one week. The Center timely appealed.

Discussion

A. The Center Has Standing to Seek Appellate Review of the Disqualification Order.

Mother contends that the Center lacks standing to appeal the disqualification order. Child, now represented on appeal by independent counsel assigned by the California Appellate Project, joins in mothers standing contention. The standing issue arises because neither mother; child; nor the Centers Unit 3, which was the attorney of record in the juvenile court, sought appellate review of the disqualification order. Mother argues that the Center is an umbrella entity that is neither an aggrieved party nor the attorney that was actually disqualified.

A party has standing to seek review of a judgment or order by demonstrating that the party is legally aggrieved within the meaning of Code of Civil Procedure section 902. (Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1201; Bratcher v. Buckner (2001) 90 Cal.App.4th 1177, 1184.) One is considered, aggrieved whose rights or interests are injuriously affected by the judgment. [Citations.] Appellants interest must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment. [Citation.] (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737; accord, United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300, 1304-1305.) [A] party must be beneficially interested (Code Civ. Proc.,  1086), i.e., have some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. [Citation.] This standard . . . is equivalent to the federal injury in fact test, which requires a party to prove by a preponderance of the evidence that it has suffered an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. [Citation.] (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361-362.) (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1182; see Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796 [to show beneficial interest party must show some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large].) The purpose of a standing requirement is to ensure that the courts will decide only actual controversies between parties with a sufficient interest in the subject matter of the dispute to press their case with vigor. [Citations.] (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439; Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 314-315.)

Since 1990, the Center and its predecessor organization, DCLS, have provided legal representation to children and other litigants in dependency litigation in Los Angeles County. The Center is contractually obligated to the Administrative Office of the Courts to provide conflict-free representation to children in dependency litigation. The Center has a substantially immediate and concrete stake in the present litigation. The Centers interest is not nominal or remote. Further, because of the on-going contractual obligations owed to the Administrative Office of the Courts, the Center has a sufficient interest to pursue its position. The Center meets the tests for standing to appeal. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com., supra, 21 Cal.4th at pp. 361-362; Carsten v. Psychology Examining Com., supra, 27 Cal.3d at p. 796; County of Alameda v. Carleson, supra, 5 Cal.3d at p. 737.)

B. The Juvenile Court Erred in Disqualifying the Center.

1. Standard of Review.

Generally, a trial courts decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial courts express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial courts factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial courts discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial courts determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial courts exercise of discretion. [Citation.] (SpeeDee Oil, supra, 20 Cal.4th at pp. 1143-1144; see also Cobra Solutions, supra, 38 Cal.4th at p. 848.)

2. General Principles.

Although this court reviews a juvenile courts ruling on a motion for disqualification for abuse of discretion, that discretion is limited by the applicable legal principles. (SpeeDee Oil, supra, 20 Cal.4th at p. 1144.) To understand the bounds of the juvenile courts discretion in this case, it is important to review the relevant general principles.

(a) Conflicts of Interest and Vicarious Disqualification.

Conflicts of interest (conflicts) arise in legal representation when there is a substantial risk that the lawyers representation of the client would be materially and adversely affected by the lawyers own interests or by the lawyers duties to another current client, a former client, or a third person. (Rest.3d of the Law Governing Lawyers, 121 (Restatement); see Flatt v. Superior Court (1994) 9 Cal.4th 275, 282-283 & fn. 2 (Flatt).) Conflicts typically implicate two of lawyers most basic duties to their clients: the duty of undivided loyalty and the duty to protect confidential client information. (Cobra Solutions, supra, 38 Cal.4th at p. 846.)

For example, absent both clients informed written consent (Cal. Rules of Prof. Conduct, rule 3-310(A) (CRPC)), a lawyer may not simultaneously represent two clients who have adverse interests. (CRPC Rule 3-310(C); see ABA Model Rule of Professional Conduct, rule 1.7(a) (Model Rules).)^[4] This is because the lawyer, in the course of vigorously representing one client, Client A, has the capacity to be disloyal to the other, Client B, by failing to recommend, assert, or vigorously advocate legal, factual, or negotiating positions that are favorable to Client B but harmful to Client A. (Flatt, supra, 9 Cal.4th at p. 282; see generally, Model Rule 1.7 coms. [6]-[8].) The lawyer would also be able to disclose or misuse confidential information relating to Client B to gain an advantage for Client A. (SpeeDee Oil, supra, 20 Cal.4th at p. 1147; see generally, 1 Hazard & Hodes, The Law of Lawyering (3d ed. 2007 supp.) Conflicts of Interest, 10.2, pp. 10-6 to 10-10 (Hazard & Hodes).) Situations involving the simultaneous representation of conflicting interests are sometimes referred to as concurrent conflicts. (See generally, 1 Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2006) 4:27-4:50, pp. 4-11 to 4-20.1.)

Similarly, a lawyer may not, without informed written consent, represent a new client, Client C, whose interests are adverse to those of a former client, Client D, when the lawyer obtained confidential information from Client D that is material to the employment with Client C. (CRPC Rule 3-310(E); Cobra Solutions, supra, 38 Cal.4th at pp. 846-847; see also Model Rule 1.9(a).) Although a lawyers duty of loyalty in such circumstances runs only to the new client, Client C, the lawyers duty to protect Client Ds confidential information persists even after their client-lawyer relationship ends. (SpeeDee Oil, supra, 20 Cal.4th at pp. 1146-1147.) Because the lawyer, who is duty-bound vigorously to represent Client C, might be tempted to disclose or misuse the confidential information of Client D, the lawyer is faced with conflicting duties to his present and former clients. (Cobra Solutions, supra, 38 Cal.4th at p. 847.) Such circumstances are sometimes referred to as successive conflicts. (See generally, 1 Vapnek, supra, 4:160 at pp. 4-58.9 to 4-58.10.)

The ethics rules and judicial decisions that govern conflicts are primarily intended to prevent, rather than to remedy or to punish, breaches of lawyers duties of loyalty and confidentiality. (See 1 Hazard & Hodes, supra, Conflicts of Interest, 10.4 at pp. 10-12 to 10-13.) The [conflict of interest rules are] designed not alone to prevent the dishonest practitioner from fraudulent conduct, but also to keep honest attorneys from having to choose between conflicting duties, or being tempted to reconcile conflicting interests, rather than fully pursuing their clients rights. (SpeeDee Oil, supra, 20 Cal.4th at p. 1147, quoting Anderson v. Eaton (1930) 211 Cal. 113, 116.)

In the litigation context, in which the adversarial nature of proceedings makes the lawyers dilemma particularly acute, courts may disqualify a lawyer who is precluded from representing one or more parties to the litigation by a conflict. (Cobra Solutions, supra, 38 Cal.4th at p. 846.) Disqualification not only prevents the lawyer from breaching his or her duties, but also protects the judicial process from any taint of unfairness that might arise from the conflict. (Ibid. [the paramount concern [in disqualification proceedings] must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar]; see 1 Hazard & Hodes, supra, Conflicts of Interest, at 10.2 at pp. 10-7 to 10-8.)

Accordingly, a litigant seeking to disqualify a lawyer does not need to demonstrate an actual breach of duty. A lawyer who represents clients with adverse interests in the same litigation automatically will be disqualified, as will a lawyer who switches sides during pending litigation, because both situations present an unacceptable risk that the lawyers duties of loyalty and confidentiality will be compromised. (Cobra Solutions, supra, 38 Cal.4th at p. 846.) A lawyer who concurrently represents adverse litigants in entirely unrelated matters will also be disqualified, even when there is no possibility that confidential information will be misused, because of the risk that the attorneys duty of undivided loyalty to each client will be compromised. (Flatt, supra, 9 Cal.4th at pp. 284-287; Truck Ins. Exchange v. Firemans Fund Ins. Co. (1992) 6 Cal.App.4th 1050, 1056-1059.)

In successive-conflict cases, a lawyer will be disqualified if the lawyers representation of a current client is substantially related to the lawyers representation of a former client. (Cobra Solutions, supra, 38 Cal.4th at p. 847; CRPC 3-310(E); see Model Rule 1.9(a).) The party seeking disqualification does not have to establish that the lawyer actually possesses material confidential information. Rather, if the subject of the prior representation put the attorney in a position in which confidences material to the current representation would normally have been imparted to counsel, the court will conclusively presume that the lawyer possesses such information. (Cobra Solutions, supra, 38 Cal.4th at p. 847.) [T]he rule followed in California is that the attorneys possession of confidential information will be presumed only when a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney. . . . [Citation.] (H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1454.)

Accordingly, whether an attorney should be disqualified in a successive representation case turns on two variables: (1) the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation, and (2) the relationship between the attorney and the former client with respect to the legal problem involved in the former representation. (Jessen, supra, 111 Cal.App.4th at p. 709.) If the relationship between the attorney and the former client is shown to have been directthat is, where the lawyer was personally involved in providing legal advice and services to the former clientthen it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client. (Ibid.) However, if the court determines the former attorney was not placed in a direct, personal relationship with the former client, the court must assess whether the attorney was positioned during the first representation so as to make it likely the attorney acquired confidential information relevant to the current representation, given the similarities or lack of similarities between the two. (Id. at p. 711; accord, Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1333 [inquiry is whether the attorney was reasonably likely to have obtained confidential information]; Ochoa v. Fordel, Inc. (2007) 146 Cal.App.4th 898, 907-909 [same].)

Furthermore, in most cases, if a lawyer is personally disqualified from representing a client in a particular matter, that disqualification extends to all lawyers in the same law firm. (Cobra Solutions, supra, 38 Cal.4th at pp. 847-848.) This is because attorneys, working together and practicing law in a professional association, share each others, and their clients, confidential information. (SpeeDee Oil, supra, 20 Cal.4th at pp. 1153-1154.) Rather than inquire as to whether confidential information actually was shared, the law imputes knowledge of confidential client information to all lawyers in the firm, thus compelling the disqualification of all lawyers so tainted. (Id. at pp. 1153-1155.) This is the doctrine of vicarious disqualification. (See generally, 1 Vapnek, supra, 4:203-4:205.1 at pp. 4-60.13 to 4-61.)

Two aspects of the doctrine of vicarious disqualification deserve particular mention in relation to this case. First, because the doctrine is based on the presumption that lawyers within firms share client confidences, vicarious disqualification in a particular case will extend only to lawyers in the same law firm as the lawyer personally disqualified. (See Christian, supra, 41 Cal.App.4th at p. 1000.) Law firm in this context is not limited to traditional private law firms, but may extend to lawyers whose association is such that they have mutual access to information concerning the clients they serve. (Model Rule 1.0(c) & com. [2].) This may include lawyers employed in a legal services organization. (Model Rule 1.0(c); see post at B.2.(b).) Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of the conflict-of-interest rules. (Model Rule 1.0 com. [4]; see generally, 1 Hazard & Hodes, supra, Imputed Disqualification, 14.5 at pp. 14-12 to 14-14.) In the context of private law firms, there is no definitive authority in California as to whether a so-called ethical wall or ethical screena mechanism that prevents individual lawyers in a firm representing an existing client from intentionally or inadvertently obtaining material confidential information relating to the prior representation of another clientcan be used to preclude vicarious disqualification in successive-conflict cases. (See Hitachi, Ltd. v. Tatung Co. (N.D. Cal. 2006) 419 F.Supp.2d 1158, 1161-1164 [reviewing cases]; 1 Vapnek, supra, 4:204.4 at pp. 4-60.14 to 4-61; St. John, Screened Out: When an Ethical Screen Can Be Used to Avoid Vicarious Disqualification of a Law Firm Remains Unsettled (Feb. 2005) Los Angeles Lawyer 29-30, 32-34.)

Second, in cases of successive conflicts, vicarious disqualification is required only if the lawyers in a firm are still tainted by imputed knowledge of a former clients confidential information. If the attorney or attorneys who personally would be disqualified have left the firm, then disqualification of the firm may not be required. When . . . the [law firm] relationship between the tainted attorneys and nontainted attorneys is in the past, there is no need to rely on the fiction of imputed knowledge to safeguard client confidentiality and opportunity exists for a dispassionate assessment of whether confidential information was actually exchanged. (Goldberg v. Warner/Chappell Music, Inc. (2005) 125 Cal.App.4th 752, 765 (Goldberg), quoting Adams v. Aerojet-General Corp., supra, 86 Cal.App. at p. 1335.) Model Rule 1.10(b), cited with approval in Goldberg, supra, 125 Cal.App.4th at pp. 765-766, addresses this issue, stating, When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has [confidential client information]. This concept is also contained in the Restatement.^[5]

(b) Vicarious Disqualification and Legal-Services Agencies.

The conflicts-of-interest principles described above largely developed and are typically applied in cases involving private law firms. (Christian, supra, 41 Cal.App.4th at p. 997.) To some extent, cases involving legal-services agencies, including public law offices, present different circumstances that have justified modifying some of those principles. (Id. at pp. 997-998.)

Story continued as Part II..

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Analysis and review provided by La Mesa Property line Lawyers.

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

^[2] Courts have noted that [m]otions to disqualify counsel are especially prone to tactical abuse . . . . (City of Santa Barbara v Superior Court (2004) 122 Cal.App.4th 17, 23 (City of Santa Barbara); accord, People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil); Faughn v. Perez (2006) 145 Cal.App.4th 592, 602.)

^[3] Mother did not submit her own sworn statement in support of her motion.

^[4] California has not adopted the ABA Model Rules . . . , although they may serve as guidelines absent on-point California authority or a conflicting state public policy. (Cobra Solutions, supra, 38 Cal.4th at p. 852.)

^[5] Section 124(1) of the Restatement provides, [An imputed conflict] does not restrict an affiliated lawyer when the affiliation between the affiliated lawyer and the personally prohibited lawyer that required the imputation has been terminated, and no material confidential information of the client, relevant to the matter, has been communicated by the personally prohibited lawyer to the affiliated lawyer or that lawyers firm.