Chambers v. Superior Court

• Decision Date: 23 July 1981
• Citation: 175 Cal.Rptr. 575,121 Cal.App.3d 893
• Parties: Colleen Elizabeth CHAMBERS and Alice P. Chambers, Petitioners, v. The SUPERIOR COURT of the State of California In and For the COUNTY OF SHASTA, Respondent, The STATE of California, Real Party in Interest. Civ. 20196.
• Court: California Court of Appeals Court of Appeals

Page 575

175 Cal.Rptr. 575

121 Cal.App.3d 893

Colleen Elizabeth CHAMBERS and Alice P. Chambers, Petitioners, v. The SUPERIOR COURT of the State of California In and For the COUNTY OF SHASTA, Respondent, The STATE of California, Real Party in Interest.

Civ. 20196.

Court of Appeal, Third District, California.

July 23, 1981.

Memering & DeMers, and Henry R. Crowle, Sacramento, for petitioners.

No appearance for respondent.

Richard G. Rypinski, Chief Counsel, Gordon S. Baca, Asst. Chief Counsel, Stephanie Sakai and Milton B. Kane, Sacramento, for real party in interest.

CARR, Associate Justice.

By petition for writ of mandate plaintiffs seek relief from an order of the trial court granting defendants' motion to disqualify plaintiffs' law firm from further representing plaintiffs in the underlying action.

Confronting us is an issue of first impression in this state on vicarious disqualification of a former government employee's current law firm. We view the issue in light of substantial countervailing policy concerns and conclude that vicarious disqualification under the facts of this case was unwarranted and an abuse of discretion.

On January 23, 1978, petitioners, Colleen and Alice Chambers, filed a complaint essentially alleging that defendants State of California (hereafter State) and County of Shasta so negligently serviced Route 151 that the road surface was in a dangerous, defective and unsafe condition, causing the car of defendant, Leslie Ann Kerns to collide with the car driven by plaintiff, Colleen Elizabeth Chambers with resulting in injuries to Chambers.

On August 11, 1980, State moved to disqualify plaintiffs' law firm, Memering & DeMers, on the ground a current member of the firm, Patrick J. Waltz, previously was employed by the State and possessed confidential information regarding this action. ¹ In support of its motion, defendant submitted the declaration of Milton B. Kane, an attorney for State, wherein Kane stated Waltz had access to confidential information from cases of a similar nature to this action and Waltz had, in fact, discussed this case with Kane while still an employee of the State.

In opposition to the motion, petitioners filed a declaration by Waltz in which he stated he did not represent the defendant in this matter, that he is not working on the case in his employment at Memering & DeMers; that while employed with the State he "was never assigned to do any legal work on the subject law suit," although Kane had briefly discussed with him the facts of the subject lawsuit; that he had specifically stated to Kane and Gordon Baca, their supervisor, that he would not discuss with anyone in the Memering & DeMers law firm the facts of the lawsuit; that Waltz specifically told Memering & DeMers' offer of employment was accepted on the condition that he would not be asked to discuss or involve himself in any cases on which he had worked or of which he had acquired any knowledge during the course of his State employment. Waltz's under penalty of perjury declaration concluded with the averment that he has not discussed nor will he discuss with anyone, any aspect of the subject suit. The record is barren of any evidence Waltz used information from his State employment in any manner which would be adverse to defendant, or in any manner at all.

Following the granting of defendant's motion on August 12, 1980, plaintiffs filed a motion for reconsideration, supported by declarations of Waltz and Crowle.

Both Waltz and Crowle declared defendant's motion to disqualify was pursuant to a new policy adopted by the new chief counsel of the department. Crowle declared he formerly had been employed as an attorney for the Department of Transportation, and in this capacity, worked on and knew of a number of cases involving counsel who were formerly attorneys for the Department of Transportation. Yet, Crowle stated, he had never known of an instance in which the State had made a motion to disqualify its former employees' current firms because of their prior employment, and throughout his employment with Memering & DeMers, the Department of Transportation has never moved to disqualify the firm because of his former employment, although a number of cases involving the department have been handled by Memering & DeMers during his employment.

Upon denial of the motion for reconsideration, and upon application we issued an alternative writ.

Initially we note that State as real party in interest has filed only a memorandum of points and authorities in opposition to the petition. Thus, we accept as true the uncontradicted allegations of the petition and its supporting exhibits. ²

State initially contends petitioner has a remedy at law in the form of a direct appeal (Jacuzzi v. Jacuzzi Bros., Inc. (1963) 218 Cal.App.2d 24, 32 Cal.Rptr. 188) and therefore mandamus is inappropriate. (Lincoln v. Superior Court (1943) 22 Cal.2d 304, 139 P.2d 13.) Where the remedy by appeal is not speedy and adequate, then in an otherwise proper case, mandate may lie. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 657, 242 P.2d 1.) This case is already over three years old. The plaintiff, virtually an innocent bystander, and entitled to have counsel of choice, should not be subjected to unnecessary further delays. With that in mind and in the interest of judicial economy, this court, in its discretion, may properly grant the petition for writ of mandate. We note that by issuing the alternative writ we have necessarily determined there is no adequate remedy in the ordinary course of the law and this proceeding is an appropriate one for the exercise of our original jurisdiction. (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 492, 96 Cal.Rptr. 553, 487 P.2d 1193; Sierra Breeze v. Superior Court (1978) 86 Cal.App.3d 102, 104, 149 Cal.Rptr. 914.)

The rules of professional conduct of the State Bar of California, provide: "A member of the State Bar shall not accept employment adverse to a client or former client, without the informed and written consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client." (Rule 4-101, Rules of Professional Conduct.) "This rule implements the duty of an attorney 'To maintain inviolate the confidence, and at every peril to himself to preserve the secrets of his client.' (Bus. & Prof. Code, § 6068, subd. (e); Jacuzzi v. Jacuzzi Bros., Inc., 218 Cal.App.2d 24, 28, 32 Cal.Rptr. 188.) Thus it is only within the context of the attorney-client relationship that the impact of this rule is felt. Once the relationship is established, the question is whether confidential information was imparted during its existence. For a conflict to arise there must be a threatened disclosure of that information resulting from adverse employment of the attorney. (N)othing in the rule prohibits an attorney from accepting employment adverse to a former client if the matter has no relationship to confidential information acquired by reason of or in the course of his employment by the former client .... (Goldstein v. Lees, 46 Cal.App.3d 614, 619, 120 Cal.Rptr. 253.)" (In re Charles L. (1976) 63 Cal.App.3d 760, 763-764, 132 Cal.Rptr. 840.)

The general concept of vicarious disqualification has been treated in a long line of Federal cases. (See, e. g. Trone v. Smith (9th Cir.1980) 621 F.2d 994; Cinema 5, Ltd. v. Cinerama, Inc. (2d Cir.1976) 528 F.2d 1384; Hull v. Celanese Corp. (2d Cir.1975) 513 F.2d 568; Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corp. (2d Cir.1975) 518 F.2d 751; Lasky Brothers of W. Va. Inc. v. Warner Bros. Pictures (2d Cir.1955) 224 F.2d 824, cert. den., 350 U.S. 932, 76 S.Ct. 300, 100 L.Ed. 814; Consolidated Theatres v. Warner Bros. Cir. Man. Corp. (2d Cir.1954) 216 F.2d 920; In re Airport Car Rental Antitrust (N.D.Cal.1979) 470 F.Supp. 495; United States v. Standard Oil Co. (S.D.N.Y.1955) 136 F.Supp. 345; T. C. Theatre Corp. v. Warner Brothers Pictures (S.D.N.Y.1953) 113 F.Supp. 265.)

In main, these decisions are geared to pertinent Disciplinary Rules promulgated by the American Bar Association, as contained in the Code of Professional Responsibility (hereafter "the Code"). ³

Disciplinary Rule 5-105(D) relating to vicarious disqualification states "If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."

Disciplinary Rule 4-101(B) is violated when a lawyer knowingly reveals a confidence or secret of a client or uses a confidence or secret improperly as specified in the rule. As a procedural matter, many courts have held that a lawyer is disqualified to represent a party in litigation if he formerly represented an adverse party in a matter "substantially related" to the pending litigation. (See Emle Industries, Inc. v. Pantentex, Inc. (2d Cir.1973) 478 F.2d 562; American Can Company v. Citrus Feed Co. (5th Cir.1971) 436 F.2d 1125; Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corp., supra, 518 F.2d 751; Kaufman, The Former Government Attorney and the Canons of Professional Ethics (1957) 70 Harv.L.Rev. 657.) The disqualification is prompted by the policy concern of protecting the former client in advance of and against a possible future violation of Disciplinary Rule 4-101(B).

Canon 9 concerns the lawyer's obligation to avoid even the appearance of impropriety and Disciplinary Rule 9-101(B) provides that "A lawyer shall not accept private employment in a matter which he had substantial responsibility while he was a public employee."

Of crucial significance to the issue before us is Formal Opinion No. 342 of the American Bar Association Standing Committee on Ethics and Professional Responsibility which addressed the concern of many government agencies and...