Leibowitz v. EIGHTH JUD. DISTRICT COURT

• Decision Date: 03 November 2003
• Docket Number: No. 39683.,39683.
• Citation: Leibowitz v. EIGHTH JUD. DISTRICT COURT, 78 P.3d 515, 119 Nev. 523 (Nev. 2003)
• Parties: Steven LEIBOWITZ; Thomas Standish; and Ecker & Standish, Chartered, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the COUNTY OF CLARK, and the Honorable William O. Voy, District Judge, Family Court Division, Respondents, and Deena Leibowitz, Real Party in Interest.
• Court: Nevada Supreme Court

78 P.3d 515

119 Nev. 523

Steven LEIBOWITZ; Thomas Standish; and Ecker & Standish, Chartered, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the COUNTY OF CLARK, and the Honorable William O. Voy, District Judge, Family Court Division, Respondents, and Deena Leibowitz, Real Party in Interest.

No. 39683.

Supreme Court of Nevada.

November 3, 2003.

Ecker & Standish and Thomas J. Standish, Las Vegas; Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Petitioners.

Dickerson, Dickerson, Consul & Pocker and Robert P. Dickerson, Las Vegas, for Real Party in Interest.

Molof & Vohl and Robert C. Vohl, Reno, for Amici Curiae Sierra Nevada Association of Paralegals, National Association of Legal Assistants, and National Association of Legal Secretaries of Washoe County.

Before the Court En Banc.

OPINION

BECKER, J.

The law firm of Ecker & Standish was disqualified from representing petitioner Steven Leibowitz pursuant to our decision in Ciaffone v. District Court,¹ which addressed imputed disqualification based upon employment of a nonlawyer employee who had access to confidential or privileged information of an adverse party during the course of the employee's prior employment. For the reasons set forth below, we determine that screening is permissible for nonlawyer employees, clarify in part and overrule in part our decision in Ciaffone and grant the petition.

FACTS

This petition for a writ of mandamus arises out of a divorce proceeding. Steven and Deena Leibowitz were married in 1986. The parties later separated, and Deena filed a complaint for divorce in February 2000. Deena hired the law firm of Dickerson, Dickerson, Consul & Pocker (DDCP) to represent her. Steven retained the law firm of Ecker & Standish (ES) to represent him in the divorce proceedings.

After a number of contested hearings, the district court entered a final judgment resolving all the parties' property, custody, and other divorce issues. The final judgment was entered on July 26, 2001. Both Steven and Deena appealed the final judgment and the appeal is pending in this court.

Later in the summer of 2001, while the appeal was pending, Steven filed a motion seeking to modify child custody and visitation. The district court certified its inclination to consider the motion. On December 13, 2001, Steven filed a motion to remand the issue to the district court.² Deena opposed the motion. After filing the motion to remand, ES advised DDCP that ES had hired Haunani Magalianes, a former DDCP employee, as a legal assistant. Magalianes had performed limited work on Deena's file while employed at DDCP. During discussions regarding possible disqualification, ES discovered that one of its former employees, Pollie J. Baker, worked at DDCP for periods of time between June 2001 and April 2002.

Magalianes evidence

On February 14, 2002, attorney Howard Ecker advised DDCP via letter that ES had hired Magalianes. With respect to the Leibowitz case, Ecker indicated that Magalianes told him she might have revised the initial complaint in the divorce proceedings while working at DDCP. However, Magalianes advised Ecker that she did not believe she had obtained any privileged information as a result of her work in the Leibowitz matter.

DDCP employed Haunani Magalianes in its domestic division until May 26, 2000. Thereafter, Magalianes transferred to DDCP's civil division until approximately April 2001. According to Magalianes, during her employment in DDCP's domestic division, she had three contacts with the Leibowitz case. First, Magalianes took the initial phone call from Deena regarding potential representation by DDCP (i.e., name, phone number, basic facts, and type of case). Second, Magalianes prepared a short memorandum to attorney Robert P. Dickerson that contained the initial information obtained by Magalianes. Lastly, Magalianes prepared a substitution of attorneys form and a transmittal letter to Deena's former attorney regarding the substitution. DDCP asserts Magalianes also participated in a meeting involving a child custody dispute on May 26, 2000. Magalianes denies participating in this meeting. DDCP's billing records do not reflect Magalianes' attendance at the meeting, although one of the attorneys present filed an affidavit indicating Magalianes was present during a phone call with opposing counsel and at a conference among Deena's counsel after the telephone conversation. The telephone call and conference involved a dispute between Deena and Steven over who would be entitled to have custody during the Memorial Day weekend.

As a condition of her employment, and in the course of her employment with ES, Magalianes was screened from any contact with the Leibowitz case. Specifically, Magalianes had no access to actual or computer files and was prohibited from conversing with law firm personnel regarding the Leibowitz matter.

Baker evidence

ES employed legal assistant Pollie J. Baker from October 2000 until mid-January 2001. Baker worked primarily for ES attorney Ed Kainen. During the period of Baker's employment, ES represented Steven in the divorce proceedings. Attorney Thomas J. Standish testified that he did the majority of work on the Leibowitz divorce, but he had some help from Kainen. Baker had access to the Leibowitz files, but Baker averred that she did not have any contact with the Leibowitz case while employed at ES. ES presented evidence that Baker had actual involvement with the case.

Around June 2001, Baker went to work for DDCP and Baker worked there for several months. She left DDCP for a short period of time and returned in late 2001. Baker ended her relationship with DDCP on April 24, 2002. DDCP indicated that it did not inform ES about Baker's employment at the time because it was unaware of Baker's previous employment with ES. Baker's resume did not disclose her employment with ES.

ES filed a motion asking the district court to determine the disqualification issues. According to ES, it indicated if Ciaffone mandated disqualification whenever a nonlawyer employee had mere access to privileged or confidential information, then both firms should be disqualified. However, ES argued that Ciaffone only required disqualification when an employee actually obtained privileged or confidential information. Under this interpretation of Ciaffone, ES asserted that neither firm should be disqualified. DDCP's response argued that Ciaffone required disqualification of both firms. The district court concluded that Ciaffone mandated automatic disqualification whenever a nonlawyer employee had access to an adverse party's privileged or confidential information during employment by that party's attorneys. The district court also found that Magalianes had actual communication with Deena during her employment with DDCP, inferring that Magalianes may have obtained privileged or confidential information. As to Baker, the district court concluded that she did not view or have access to any of the Leibowitz files while employed at ES.³ The district court disqualified ES but declined to disqualify DDCP. This writ petition was then filed.

DISCUSSION

Petitioners seek a writ of mandamus compelling the district court to vacate its order disqualifying the law firm of ES from further representation of Steven. A writ of mandamus is an extraordinary remedy that will not issue if the petitioner has a plain, speedy, and adequate remedy at law.⁴ Whether to consider a petition for mandamus is entirely within the discretion of this court.⁵ The writ is generally issued "to compel the performance of an act" that the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion.⁶

This court has previously concluded that mandamus is an appropriate remedy in lawyer disqualification matters.⁷ In addition, we have said that "[d]istrict courts are responsible for controlling the conduct of attorneys practicing before them, and have broad discretion in determining whether disqualification is required in a particular case."⁸ However, "parties should not be allowed to misuse motions for disqualification as instruments of harassment or delay."⁹

Ciaffone clarified in part

First, petitioners contend the district court misapplied this court's decision in Ciaffone. They assert that Ciaffone does not automatically require disqualification of lawyers whenever they hire a nonlawyer who had access to an adverse party's privileged or confidential information during previous employment. Petitioners argue that Ciaffone stands for the proposition that the disqualification remedy is only available if the district court first determines that a lawyer's employee gained privileged and confidential information about an adverse party as a result of former employment. Petitioners contend that mere access to the adverse party's file during the former employment is insufficient to warrant disqualification. We agree.

Ciaffone recognized that the prohibitions against the unauthorized disclosure of confidential information encompassed in SCR 156 and 159(2) apply to an attorney's nonlawyer employees through SCR 187, which requires lawyers to hold their nonlawyer employees to the same professional standards applicable to attorneys.¹⁰ We held that the imputed disqualification requirements for attorneys and firms under SCR 160 apply to nonlawyer employees of an attorney or firm.¹¹ Thus, if a nonlawyer possesses privileged information, imputed disqualification should apply whenever the nonlawyer accepts employment with a firm or attorney who represents a client with a materially adverse interest to the former client. However, despite the statements in the opinion indicating that imputed disqualification does not apply if the nonlawyer employee did not obtain confidential information in the prior employment,¹² the facts in Ciaffone infer that mere exposure to a client's file...