In Re: Hoglund County of Los Angeles

• Decision Date: 19 April 2000
• Docket Number: No. 00-70077,00-70077
• Citation: In Re: Hoglund County of Los Angeles, 223 F.3d 990 (9th Cir. 2000)
• Parties: (9th Cir. 2000) In re: COUNTY OF LOS ANGELES; In re: SCOTT HOGLUND COUNTY OF LOS ANGELES; In re SCOTT HOGLUND, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent, JAMES FORSYTH, Real Party in Interest. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 990

223 F.3d 990 (9th Cir. 2000)

In re: COUNTY OF LOS ANGELES;

In re: SCOTT HOGLUND COUNTY OF LOS ANGELESIn re SCOTT HOGLUND, Petitioners, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent,JAMES FORSYTH, Real Party in Interest.

No. 00-70077

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Submitted April 19, 2000^* Pasadena, California

Filed August 31, 2000

Alan Diamond, Greines, Martin, Stein & Richland, Beverly Hills, California, for the petitioners.

Stephen Yagman, Marion R. Yagman, Kathryn S. Bloomfield, Yagman Yagman & Reichmann, Venice, California, Professor Erwin Chemerinksky, The Law School, University of Southern California, Los Angeles, CA, for the real party in interest.

Petition for Writ of Mandamus to the United States District Court for the Central District of California;Florence Marie Cooper, District Judge Presiding. D.C.No. CV-98-07731-FMC

Before: Alex Kozinski, Ferdinand F. Fernandez and Pamela Ann Rymer, Circuit Judges.

KOZINSKI, Circuit Judge.

James Forsyth, the plaintiff in the underlying case, Forsyth v. County of Los Angeles, CV-98-7731-FMC (CWx), is represented by attorney Stephen Yagman and the law firm of Yagman & Yagman & Reichmann.Joseph Reichmann is a retired United States Magistrate Judge who, five years ago, presided over settlement negotiations in Thomas v. County of Los Angeles, CV-93-5390-JSL (JRx).Forsyth and Thomas are police brutality cases, arising out of different incidents separated in time by several years.They are related only in the sense that the County of Los Angeles and one of its deputy sheriffs, Scott Hoglund, are defendants in both cases.

Defendants moved to disqualify the Yagman firm on the ground that, during the settlement negotiations in Thomas, Reichmann met with defense counsel ex parte and therefore had access to confidential information pertaining to the County of Los Angeles and Deputy Sheriff Hoglund.Yagman did not contest the disqualification of Reichmann but proffered the following evidence: Reichmann joined the Yagman firm as a partner on November 1, 1999, and has had no involvement in the Forsyth case.Moreover, a week before Reichmann joined the firm, Stephen Yagman removed all of the files pertaining to the case to his home and instructed the firm's only other lawyer, partner Marion Yagman, not to discuss the case with Reichmann.Reichmann himself submitted a declaration stating that he had no recollection of the settlement discussions in Thomas, and that he does not recall having received any confidential information from defendants' lawyer in that case.Reichmann, moreover, explained that "as a magistrate judge from 1980 to 1996, it was my longstanding, regular, and continuing practice in conducting settlement conferences (1) not to go into the merits of actions, (2) not to request or receive either confidential or strategic information from counsel, and (3) to discuss only monetary matters."ReichmannDecl. at 2, Ex. 6 to Pet. for Writ of Mandamus.

For their part, defendants submitted the declaration of Richard Kemalyan, defense counsel in Thomas, who stated as follows: "I do not have a specific recollection of the details of what communications were made between declarant and Magistrate Judge Reichman [sic] outside the presence of plaintiff's counsel.I am sure that in the normal course of the Settlement Conference, I did have private and confidential communications with Magistrate Judge Reichman [sic].I cannot recall the details of those communications."KemalyanDecl. at 1, Ex. 5 to Pet. for Writ of Mandamus.

The district court denied the motion to disqualify the Yagman firm, finding no evidence that Reichmann received confidential information during the settlement negotiations in Thomas.The court also found that the wall of confidentiality erected to shield Reichmann from the Yagmans was adequate to protect the interests of the defendants.Defendants brought this petition for a writ of mandamus seeking reversal of the district court's order and disqualification of the Yagman firm.We stayed the trial while we considered the petition.SeeCounty of Los Angeles v. United States Dist. Court, No. 0070077(9th Cir.Jan. 31, 2000)(unpublished order).

Until recently, the practice of judicial officers returning to law firms was rare, and the relevant authorities are sparse.The case law draws a distinction between situations where a judicial officer acted merely as an adjudicator and those where he acted as a mediator or settlement judge.The difference is based on the fact that mediators are far more likely than adjudicators to learn confidential information from the parties:

[Mediation] . . . differs significantly from more formal adversarial proceedings at which an adjudicative officer presides.Most importantly, the mediator is not merely charged with being impartial, but with receiving and preserving confidences in much the same manner as the client's attorney.In fact, the success of mediation depends largely on the willingness of the parties to freely disclose their intentions, desires, and the strengths and weaknesses of their case; and upon the ability of the mediator to maintain a neutral position while carefully preserving the confidences that have been revealed . . . .

Adversarial proceedings, on the other hand, are characterized by vigorous attempts to maintain confidences.Attorneys who have received such confidential information are under a strict duty to avoid, without the consent of the client, any disclosures of that information.And because adjudicators do not occupy a relationship of confidence and trust with the parties akin to that occupied by the attorneys, they do not, for the most part, have access to those confidences.Thus, although mediators function in some ways as neutral coordinators of dispute resolution, they also assume the role of a confidant, and it is that aspect of their role that distinguishes them from adjudicators.

Poly Software Int'l., Inc. v. Su, 880 F. Supp. 1487, 1494(D. Utah1995)(footnote omitted).

Adjudicators do sometimes become privy to confidential information, such as when they must rule on claims of privilege.However, the distinction between adjudicators and mediators is useful in most cases.Thus, when a judicial officer who served as an adjudicator returns to practice, his participation as a lawyer will normally be constrained only by Rule 1.12(a) of the Model Rules of Professional Conduct, which provides: "[A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer . . . unless all parties to the proceeding consent after consultation."¹Disqualification pursuant to this rule is personal, not vicarious.This means that, though the lawyer himself is automatically disqualified, his law firm may serve as counsel, so long as an ethical wall has been erected to bar the disqualified lawyer from any participation in the case.SeeHigdon v. Superior Court, 227 Cal. App. 3d 1667, 1680(1991).

The rule is quite different for a judge who has participated in mediation or settlement efforts, or who has otherwise received confidential information from the parties in a case.As explained in Poly Software, such a judge becomes a confidant of the parties, on a par with the parties' own lawyers.Under those circumstances, the judge will be conclusively presumed to have received client confidences in the course of the mediation,² and his later participation in the case will be governed by the same rule that governs lawyers: He may not participate in the case and, pursuant to Model Rules of Professional ConductRule 1.10(a), neither may his law firm.SeeCho v. Superior Court, 39 Cal. App. 4th 113, 125(1995)("When a litigant has bared its soul in confidential settlement conferences with a judicial officer, that litigant could not help but be horrified to find that the judicial officer has resigned to join the opposing law firm--which is now pressing or defending the lawsuit against that litigant.");see alsoMcKenzie Constr. v. St. Croix Storage Corp., 961 F. Supp. 857, 85962(D.V.I.1997).

The law firms facing disqualification in Cho and McKenzie were handling the very cases over which the former judges had presided.SeeCho, 39 Cal. App. 4th at 126;McKenzie, 961 F. Supp. at 862.Our situation is different because Reichmann presided as settlement judge over a case other than the present one.Presuming that Reichmann learned confidential information as settlement judge in Thomas, it doesn't follow that any of that information pertains to Forsyth.When the two cases involve different parties and/or different incidents, disqualification of the former judge and his law firm is appropriate only if the two cases are "substantially factually related."Poly Software, 880 F. Supp. at 1494.This standard is derived from Rule 1.9 of the Model Rules of Professional Conduct, which deals with the question of when an attorney is disqualified from representing a client because the attorney previously represented a party adverse to the client in a related case.SeeRosenfeld Constr. v. Superior Court, 235 Cal. App. 3d 566, 577(1991).As we have concluded, a judge who participates in a mediation or presides over settlement negotiations gains access to confidential client information, just as if he were a lawyer for one of the parties.Because the "substantially factually related" standard is a proxy for the disclosure of confidential information, it makes sense to use the same standard to determine when a settlement judge will be disqualified in a related case.

We explained the "substantially factually related"standard in Trone v. Smith, 621 F.2d 994, 998(9th Cir.1980): "If there is a reasonable probability that confidences were disclosed [in an earlier representation] which could be used against the client...