The Continuing Saga of the Application of Disqualification Rules to Public Lawyers
LACBA Update, August 2007
By Louisa Lau, immediate past chair, LACBA Professional Responsibility & Ethics Committee. Lau is a senior counsel with State Compensation Insurance Fund, and a former member of the California State Bar Committee on Professional Responsibility and Conduct. The opinions expressed are her own.
Rule 3-310 of the California Rules of Professional Conduct prohibits attorneys from representing more than one client with conflicting interests absent the client’s informed written consent. “When attorneys presumptively share access to privileged and confidential matters because they practice together in a firm, the disqualification of one attorney extends vicariously to the entire firm.”1 In People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., the California Supreme Court found vicarious disqualification appropriate even in a case of conflict with an “of-counsel” of the law firm.
The Rules of Professional Conduct on their face do not provide for differential standards nor do the official comments suggest this possibility. However, courts have taken a different approach with no small divergence and strong dissenting opinions, especially when applying the rules of disqualification to public counsels. For instance, in City of Santa Barbara v. Superior Court, attorney Knecht, moving from a law firm that represented the clients in a lawsuit against the city to the city attorney’s office, switched sides while the lawsuit was pending. The court opined that “[w]ere we concerned with a private law firm, the answer would be clear: Knecht’s disqualification would be mandatory and would extend to her entire law firm.”2 However, the court considered the city attorney’s office not a “law firm” within the meaning of the vicarious disqualification rules and held that screening with an “ethical wall” was sufficient to prevent vicarious disqualification of the city attorney’s office even when Knecht was directly and personally involved in the relevant matter.3
Other appellate courts have frequently rejected the analogy of public entities or nonprofit organizations to a private law firm since they receive public funding and do not charge clients, and the public counsels have no financial incentive to favor one client over any other. In People v. Christian,4 the court of appeal denied the claim that the representations of both appellants at trial by the public defender’s office and the alternate defender office constitute representations of conflicting interests although both offices were under the supervision of one public defender.5 It noted that “the record shows that, as Jackson claims, there was a potential and actual conflict of interest between him and his codefendant. However, the record also shows that each of the two trial attorneys vigorously defended his client, objecting to the admission of evidence when appropriate and even attempting to implicate each other’s client through argument and cross-examination.” It concluded that “there is simply no evidence that either attorney represented conflicting interests in his defense of this case.”6 This situation would never be permissible in cases involved with private firms.
In Castro v. Los Angeles County Bd. of Supervisors, the court of appeal upheld the trial court’s denial of a preliminary injunction, finding the doctrine of “vicarious” or firm disqualification inapplicable to the situation of public services lawyers.7 In Chadwick v. Superior Court, the court imposed no vicarious disqualification when a lawyer moved from one legal services agency to an adverse legal services agency.8 In Chambers v. Superior Court, the court likewise imposed no vicarious disqualification where a former public counsel who was not directly involved in the relevant matter moved to a private firm.9
Even in cases where the supreme court found conflicts in successive representations involving a public counsel and imposed vicarious disqualification, these decisions were not unanimous, and the public counsel in question was the head of the office and personally involved in the prior representation. For instance, in People ex rel Deukmejian v. Brown,10 the state attorney general had a conflict because he had a personal professional relationship with the prior clients, and in City and County of San Francisco v. Cobra Solutions, Inc.,11 the city attorney, while in private practice, had previously represented the company, which was being sued by the city in a matter substantially related to his prior representation of the company. In Cobra, the court reserved for later determination whether ethical screening might suffice to shield a senior supervisory attorney (as opposed to the head of the office) with a personal conflict. Justice Corrigan, joined by Chief Justice George, dissented, citing Formal Opinion No. 342 of the American Bar Association’s Committee on Ethics and Professional Responsibility that an automatic disqualification rule unreasonably impairs the government’s ability to function.12
While private attorneys may not compel clients “to accept the attorney’s invitation to ‘trust me’ when [the attorney] undertakes to align [him or her]self with a new client whose interests pose a conflict of interest” regardless of the attorney’s “vow to protect the client’s confidences,”13 courts have accepted public counsel’s averment of not possessing confidential information or that no conflict existed,14 and the presumption that the public counsel maintained sufficient independence from each other and acted ethically when representing each codefendant.15
Courts have recognized that “[a]lthough conflict rules clearly apply both to private and public sector attorneys, they appear to have been drafted with private attorneys primarily in mind [Citations omitted],” and “in general, courts should not assume the existence of conflicts of interest in the public sector absent evidence of any conflict, and should attempt to limit the reach of disqualification in such cases whenever possible.”16 As explained in In re Lee G., disqualification of public counsels should proceed with caution since such disqualification can result in increased public expenditure for legal representation. “Where only speculative or minimal benefit would be obtained by disqualification of public counsel, the ‘dislocation and increased expense of government’ is not justified. [Citation.]”17 Christian repeated the admonition of Castro, that “[s]peculative contentions of conflict of interest cannot justify disqualification of counsel.”18
The supreme court rejected a rule of per se disqualification in a case where a deputy public defender allegedly had an existing conflict. It reasoned that a rule of automatic disqualification would hamper the ability of the public defender’s office to represent indigents in criminal cases.19 Love v. Superior Court warned that particular caution should be exercised before the entire district attorney’s office, as opposed to a particular prosecutor, is recused.20 People v. Pineda also instructed that in the absence of some affirmative showing that a particular deputy public defender has acquired confidential adverse information about a defendant from files or other employees of the office, any claim of conflict of interest would be groundless.21
Public counsels were allowed to use “internal screening procedures or ‘ethical walls’ to avoid conflicts [between units] within government offices, such as those found acceptable in Castro...[Citations omitted].”22
Recently, the second appellate district, in In re Charlisse C., reversed the juvenile court’s order of disqualification, with one justice concurring and one dissenting. The majority, relying on Christian, Castro, City of Santa Barbara, In re Lee G., and Cobra, reasoned that the general conflicts of interest principles “largely developed and are typically applied in cases involving private law firms....To some extent, cases involving legal services agencies, including public law offices, present different circumstances that have justified modifying some of these principles.” It distinguished legal services counsels from private attorneys because (1) legal services counsels “do not have a financial interest in the matter on which they work. As a result, they may have less, if any, incentive to breach client confidences,” (2) disqualification of legal services counsels “can result in increased public expenditures for legal representation.” Therefore, disqualification should be avoided if the benefit is “only speculative or minimal,” and (3) public counsels “often develop specific expertise in particular areas of law, and disqualification may deprive the office’s clients of the benefits of this acquired and cultivated expertise.” Relying on these considerations, it “permitted the use of ethical screen to avoid vicarious disqualification.”23
These cases show that the rules of vicarious disqualification have been inconsistently applied to the private, public, or legal services counsels.
As suggested in “Square Peg in Round Hole? Application of Rule 3-310 to Public Attorneys,”24 if courts take on the tasks of deciding whether conflicts are tolerable in a particular setting with public counsels, results could differ from court to court that threaten uniform application. 25 To ensure uniform application of the Rules of Professional Conduct, perhaps Rules 1-10026 and 3-310 (B)(1)(d)27 should specifically provide articulated exceptions for public or legal services counsels, such as: (1) public law offices are not “law firms,” nor are separate units within a public law office considered “one firm” for purposes of disqualification; (2) ethical screening is sufficient for public law offices; and (3) for vicarious disqualification to apply, the head of the public office must be directly and personally in a relevant prior representation.
1 People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems Ins. (1999) 20 Cal 4th 1135, 1153-54.
2 City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17, 24.
3 Id. at 26-27.
4 People v. Christian (1996) 41 Cal.App.4th 986, 997.
5 Id. at 994.
6 Id. at 1001.
7 Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1441.
8 Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, 118-19.
9 Chambers v. Superior Court (1981) 121 Cal.App.3d 893, 902-03.
10 People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150.
11 City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal 4th 839, 847.
12 Id. at 855-57.
13 American Airlines v. Sheppard (2002) 96 Cal.App.4th 1017, 1040.
14 Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566, 1577, quoting People v. Clark (1993) 5 Cal.4th 950, 1001.
15 People v. Pastrano (1997) 52 Cal. App.4th 610, 617.
16 People v. Christian (1996) 41 Cal.App.4th, 986, 997-98.
17 In re Lee G. (1991) 1 Cal.App.4th 17, 28; see also Castro v. Los Angeles County Bd. of Supervisors 232 Cal.App.3d 1432, 1442; People v. Daniels (1991) 52 Cal.3d 815, 843.
18 Christian 41 Cal.App.4th at 1001-02.
19 Daniels 52 Cal.3d at 843.
20 Love v. Superior Court (1980) 111 Cal.App.3d 367, 371.
21 People v. Pineda (1973) 30 Cal.App.3d 860, 865
22 Christian 41 Cal.App.4th at 998.
23 In re Charlisse C., B194568 (Los Angeles County Super. Ct., No. CK49216), 17-18 filed 4/23/07.
24 Louisa Lau, Square Peg in Round Hole? Application of Rule 3-310 to Public Attorneys, COUNTY BAR UPDATE, (L.A. County B.Ass’n, Los Angeles, Cal.), March 2003.)
25 Even justices dealing with the same facts in the same case differed in opinion, such as in Charlisse (2-1 opinion), Deukmejian, and Cobra (where the supreme court concluded vicarious disqualification appropriate are not unanimous but are 5-2 majority opinions).
26 The Christian court noted that “Paragraph 3 of the comment of ABA rule 1.10 states: ‘Lawyers employed in the same unit of a legal organization constitute a firm, but not necessarily those employed in separate units.’ The California Rules of Professional Conduct are less explicit, defining a ‘law firm’ as among other things, ‘a public funded entity which employs more than one lawyer to perform legal services.’ (RULES OF PROF’L CONDUCT, R. 1-100(B)(1)(d).) The meaning of ‘entity’ [upon which vicarious disqualification may apply] is not explained.” (Christian 41 Cal.App.4th at 1000.)
27 The State Bar Rules Revision Commission is currently in the process of revising the California Rules of Professional Conduct including Rule 3-310 [ABA MR 1.7, 1.8, 1.9, 1.10, 1.11] Avoiding the Representation of Adverse Interests; Rule 1-100, Rules of Professional Conduct, in General.