Presented at the 34th ABA National Conference on Professional Responsibility in Boston on May 30, 2008
California currently does not have an imputation rule comparable to Model Rule 1.10, nor does California have rules that address screening in the case of former government lawyers, (Model Rule 1.11), former judges and third party neutrals (Model Rule 1.12) or in dealing with prospective clients (Model Rule 1.18). Instead, imputation of conflicts of interest is a matter of common law. See, California Practice Guide: Professional Responsibility (Thomson West (Rutter Group) 2007) ¶ 4:32 ff.
California cases were among the first to apply the imputed knowledge rule relying in part on DR 5-105(D). Chadwick v. Superior Court, 106 Cal. App. 3d 108, 116 (1980), superseded by statute on other grounds in People v. Conner, 34 Cal. 3d 141 (1983); Chambers v. Superior Court, 121 Cal. App. 3d 893, 898 (1981). The established rule in California is that where an attorney is disqualified that attorney’s entire firm is disqualified as well regardless of efforts to erect an ethical wall. Klein v. Superior Court, 198 Cal. App. 3d 894, 912-914 (1998); Henriksen v. Great American Savings & Loan, 11 Cal. App. 4th 109, 117 (1992).
The California Supreme Court has not expressly changed the presumption of shared confidences in successive representation cases. City & County of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839 (2006). However, based on a statement in People ex. rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc, 20 Cal. 4th 1135, 1151-1152 (1999) (that the record lacked an evidentiary basis for considering whether an ethical screen could be used to avoid disqualification of the law firm based on the firm’s disqualified “of counsel”), the Ninth Circuit expressed the belief in In re County of Los Angeles, 223 F.3d 990, 995 (9th. Cir. 2000) that the Court is “sending a signal that [it] may well adopt a more flexible approach to vicarious disqualification” in certain cases. Yet, the basic rule remains intact. Hitachi, Ltd. v. Tatung Company, 419 F. Supp. 2d 1158,1161 (N.D. CA. 2006).
Several courts have relaxed the imputation standard in specific situations. Goldberg v. Warner/Chappell Music, Inc., 125 Cal. App. 4th 752 (2005) (where the disqualified attorney leaves the firm and the prior firm shows it did not receive confidential information); Adams v. Aerojet-General Corp., 86 Cal. App. 4th 1324 (2001) (where the new firm shows that the lateral attorney had no exposure to confidential information relevant to the current action). Thus, California follows the rule in most jurisdictions that “double imputation” will not support disqualification. Frazier v. Superior Court, 97 Cal. App. 4th 23, 27 (2002); Derivi Construction & Architecture, Inc v. Wong, 118 Cal. App. 4th 1268, 1274-1276 (2004).
Courts will also permit screening in certain contexts. For example, a law firm will not be vicariously disqualified because a former judicial officer who heard a portion of the case subsequently joins a firm of one of the parties so long as no confidences were revealed to the judicial officer by the opposing side and appropriate screening procedures are established. Higdon v. Superior Court, 227 Cal. App. 3d 1667 (1991); In re County of Los Angeles, supra,223 F. 3d 990. However, screening will not avoid disqualification if the former judicial officer participated in settlement conferences in the case. Cho v. Superior Court, 39 Cal. App. 4th 113 (1995).
Screening procedures may also protect against the presumption of shared confidences when hiring former government lawyers (Chambers v. Superior Court, 121 Cal. App. 3d 893 (1981)) as well as private lawyers joining a government office. City of Santa Barbara v. Superior Court, 122 Cal. App. 4th 17 (2004). However, a public office may not avoid vicarious disqualification by using screening procedures to shield a conflicted lawyer that becomes the head of the office. Cobra Solutions, supra,38 Cal. 4th at 850. Screening procedures can also be effective in overcoming the presumption of shared confidences when hiring an opposing counsel’s former paralegal or secretary (In re Complex Asbestos Litigation,232 Cal. App. 3d 572 (1991)) or employing an expert previously consulted by the other side. Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067, 1087 (1994); Western Digital Corp. v. Superior Court, 60 Cal. App. 4th 1471 (1998).