explaining that, “[t]he vicarious disqualification rule recognizes the everyday reality that attorneys, working together and practicing law in a professional association, share each other’s, and their clients’, confidential information”
How later courts described this case
- explaining that, “[t]he vicarious disqualification rule recognizes the everyday reality that attorneys, working together and practicing law in a professional association, share each other’s, and their clients’, confidential information”
- ruling that “a presumption that an attorney has access to privileged and confidential matters relevant to a subsequent representation extends the attorney’s disqualification vicariously to the attorney’s entire firm”
- observing that a motion to disqualify a party's counsel may implicate several important interests, including a client's right to choose legal counsel, the expense of obtaining substitute counsel, and the possibility that such a motion was brought for tactical purposes
- stating that “judges must examine these motions carefully to ensure that literalism does not deny the parties substantial justice”
Written by the judges who cited it.
The opinion
MOSK, J.
I concur in the result.
An attorney who is designated of counsel to a law firm should be subject to the same rules as a partner or associate of the firm for conflicts purposes. This is a bright-line rule. We need not inquire into the particulars of the of counsel relationship in question.
Attorney Eliot G. Disner held himself out to the public as “of counsel” to the firm of Shapiro, Rosenfeld & Close, i.e., as having a “close, personal, continuous, and regular” relation with the firm. (Rules Prof. Conduct, rule 1-400(E), std. (8).) He must, accordingly, be considered a member of the firm for purposes of the vicarious disqualification rule, whatever the minutiae of how he and the rest of the Shapiro firm handled their billings and payroll.
It appears that there was a conflict of interest, albeit a brief one, between the interests of Disner, who received confidential information from and advised Mobil Oil Corporation, and the rest of the Shapiro firm, which was simultaneously associated as counsel for interveners in the same matter. Hence, the Shapiro firm must be disqualified per se. This, too, is a bright-line rule. As has previously been explained: “The paradigmatic instance of . . . prohibited dual representation—one roundly condemned by courts and *1157 commentators alike—occurs where the attorney represents clients whose interests are directly adverse in the same litigation.” (Flatt v. Superior Court (1994) 9 Cal.4th 275, 284, fn. 3 [ 36 Cal.Rptr.2d 537 , 885 P.2d 950 ]; see Rules Prof. Conduct, rule 3-310.) A simple conflicts check would have avoided the problem. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 1 (The Rutter Group 1998) ¶ 1:71, pp. 1-19 to 1-20.)
I write separately because, in my view, this matter involves a straightforward question of law, not of fact. The majority suggest, in my view incorrectly, that it matters how long the conflict herein lasted, how promptly Mobil sought to disqualify Disner, and whether attorneys from the Shapiro firm actually had access to Mobil’s confidences. The precise details of the interactions between Disner and the Shapiro firm and their clients are not the point. Nor are we called upon to parse declarations by the attorneys that they did not discuss the merits of the action or intend to do so. Regardless whether any attorneys in the Shapiro firm apart from Disner were actually exposed to Mobil’s confidences or instituted any formal “ethical screen” to preserve confidentiality, disqualification in these circumstances was automatic, as a breach of the twin duties of loyalty and confidentiality owed by an attorney to his client.
For these reasons, the judgment of the Court of Appeal should be reversed.