Vicarious Disqualification of Public Law Offices
LACBA Update, May 2009
By Louisa Lau, member and former chair, LACBA Professional Responsibility & Ethics Committee. Lau is a supervising attorney 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.
Two previous articles in County Bar Update1 pointed out that California courts routinely permit ethical screening involving government or nonprofit attorneys, even in concurrent representation, to avoid application of vicarious disqualification of the government or nonprofit law offices.2
In October 2008, the California Supreme Court affirmed the appellate district’s decision reversing the juvenile court’s order of disqualification of the Children’s Law Center of Los Angeles in In re Charlisse C.3 and remanded the matter to the juvenile court for rehearing of the disqualification motion in accordance with the newly announced legal standard.
Children’s Law Center is a publicly funded nonprofit law office that represents parents and children in the Juvenile Dependency Court. It has an Operating Procedures and enforces ethical walls within its separate legal units. Unit 3 of CLC represented Charlisse in a dependency action arising from the alleged abuse by her mother, Shadonna, who was represented by CLC’s Unit 1 previously in other proceedings. Charlisse filed a motion to disqualify CLC based on the conflict of interest that arises from the prior representation of Shadonna and the current representation of Charlisse.
The juvenile court, hearing Charlisse’s motion to disqualify found no actual of conflict of interest and no improper disclosure of confidential information but was nevertheless concerned with the appearance of conflict and the ethical walls that may have been breached. It disqualified CLC based on a violation of the Castro4 and Christian5 safeguards that permit ethical screening in joint representation of multiple parties in the same action.
The supreme court concluded that the juvenile court applied an incorrect legal standard in disqualifying CLC. Unlike the Castro and Christian cases, which involve simultaneous representation, Charlisse involves the potential conflict arising from an attorney's successive representation of clients with potentially adverse interests. Accordingly, the factors emphasized in Castro and Christian are not dispositive in Charlisse. The primary value at stake in successive representation is the attorney’s duty to preserve former client confidentiality; therefore, the disqualification standards for the two situations differ. The court explained that in a successive representation situation, the correct legal standard generally requires disqualification of the attorney if the former client demonstrates a “substantial relationship” between the subject of the antecedent and current representations.
The supreme court held that although the juvenile court found CLC did not observe some of the safeguards Castro and Christian discussed, this did not automatically warrant disqualification. CLC did not dispute that the substantial relationship existed between the subjects of the former and current representation. The only issue is whether, under vicarious disqualification rule, disqualifying conflict of interest requires disqualification of the entire firm. The supreme court reiterated that California courts have generally declined to apply an automatic and inflexible rule of vicarious disqualification in the context of public law offices. Instead, in this context, courts have looked to whether the public law office has adequately protected and will continue to adequately protect the former client’s confidences through timely, appropriate, and effective screening measures and/or structural safeguards.6
The supreme court also recognized courts have held that where the attorney with the actual conflict has managerial, supervisorial, and/or policymaking responsibilities in a public law office, screening may not be sufficient to avoid vicarious disqualification of the entire office.7 The decisions disqualifying the entire law office are inapposite where the attorney who was subject to ethical screening was simply one of the attorneys in the office and did not have managerial, supervisory, and/or policymaking responsibilities. The court further noted that ethical screening might suffice to shield a senior supervisory attorney with a personal conflict and thus avoid vicarious disqualification of the entire government legal unit under that attorney’s supervision.8 The court further opined that, in ruling on disqualification motion involving this situation, a trial court should make a factual inquiry into the supervisor’s (1) actual duties with respect to those attorneys who will be ethically screened, and (2) responsibility for setting policies that might bear on the subordinate attorney’s handling of the litigation. In addition, the trial court should consider whether public awareness of the case or the conflicted attorney’s role in the litigation or another circumstance is likely to cast doubt on the integrity of the governmental law office’s continued participation in the matter.9
Finally, the court addressed CLC’s evidentiary burden to show that through timely, appropriate, and effective screening measures and/or structural safeguards, the confidential information acquired during the prior representation has been and will be adequately protected during the proposed current representation of Charlisse. This burden properly falls on CLC because it has unique access to the relevant information.10
1 The Continuing Saga of the Application of Disqualification Rules to Public Lawyers (August 2007), and Square Peg in Round Hole? Application of Rule 3-310 to Public Attorneys (March 2003).
2 Castro v. Los Angeles County Bd. of Supervisors, 232 Cal. App. 3d 1432 (1991).
3 In re Charlisse C., 45 Cal. 4th 145 (2008).
4 Castro, 232 Cal. App. 3d at 1437-38. (In addition to structural, physical, and administrative separation of the affected attorney or the legal unit, the public legal office maintains a copy of its "Conflict of Interest Policy and Procedures." It defined conflicts of interest, set forth a procedure to determine conflict of interests and a procedure to use in court if an attorney learned of a conflict of interest, and indicated how to report and record a conflict of interest.)
5 People v. Christian, 41 Cal. App. 4th 986 (1996).
6 In re Charlisse C., 45 Cal. 4th at 161-62.
7 See Younger v. Superior Court, 77 Cal. App. 3d 892 (1978) (assistant district attorney); People v. Lepe, 164 Cal. App. 3d 685 (1985) (district attorney); City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839 (2006) (city attorney).
8 City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839, at p. 850, fn. 2 (2006).
9 In re Charlisse C., 45 Cal. 4th at 165.
10 Id. at 612-13.