2011-00113309-CU-PA

Bernard Porter vs. David Lowe

Nature of Proceeding: Motion for Order Disqualifying Counsel

Filed By: Beals, John D.

Plaintiff’s Motion to Disqualify Counsel for the Defendant David Lowe is DENIED.

The motion to disqualify defense counsel David L. Winter and Bates, Winter &
Cameron LLP, is made on the basis that Judy Rolandsson, paralegal/secretary to
defense counsel David L. Winter, was previously employed by plaintiff’s counsel John
D. Beals and the Piering Law Firm.

Rolandsson was employed by opposing counsel the Piering Law Firm, from Feb. 2011
to June 2011 as a paralegal/assistant.

Moving party asserts that Rolandsson specifically worked on plaintiff’s file and became
privy to sensitive and confidential information relating to this matter.

The Rolandsson declaration in opposition represents that she has never been a
paralegal, but is a legal secretary. She declares that she does not recall ever working
on this case or speaking to anyone about it while employed by the plaintiff’s firm.

During the time that Rolandsson was employed by plaintiff’s counsel, defense counsel
had not yet been retained to represent the defendant.

Plaintiff’s complaint in this motor vehicle negligence action was filed on Oct. 31, 2011,
after Rolandsson left her employment with plaintiff’s counsel.

Rolandsson’s employment as a legal secretary by defense counsel commenced on
Nov 28, 2011. At that time, defense counsel had not yet been retained to represent
the defendant in this action.

Defense counsel was retained to represent he defendant in this action commencing on
Oct. 10, 2012.

Rolandsson declares that on or about Nov. 28, 2012, plaintiff’s counsel was aware of
her employment by defense counsel, as he appeared in the defense firm’s office on
another matter and spoke in person to Rolandsson, inquiring about her well being.

Moving party asserts that defense counsel never informed plaintiff’s counsel that he
had employed Rolandsson, who was actively working on this case.

Defense counsel in opposition, declares that in the year between the time that
plaintiff’s counsel became aware that Rolandsson was employed by defense counsel
and the filing of this motion to disqualify, plaintiff’s counsel occasionally told him to “say
hello to Judy for me”.

On July 1, 2013, Rolandsson served the defendant’s answer to the complaint on
plaintiff’s counsel. No objection was raised at that time by plaintiff’s counsel.

On Sept. 4, 2013, discovery was served by Rolandsson; without objection from
plaintiff’s counsel. Plaintiff’s deposition was notice was served by Rolandsson on
Sept. 9, 2013; without objection. On Sept. 13, 2013 defendants’ discovery responses
were served; without objection.

Plaintiff’s counsel did not object until the notice of continued deposition was served by
Rolandsson on Oct. 1, 2013.

Hiring a former employee of an opposing counsel is not, in and of itself, sufficient to
warrant disqualification of an attorney or law firm. In re Complex Asbestos Litigation, et
al. v. Owens-Corning Fiberglass Corporation, et al. (1991) 232 Cal.App.3d 572, 592.
Only if the former employee possesses confidential attorney-client information,
materially related to the pending litigation, should there be the implication of the rare
and highly scrutinized disqualification of counsel. Comden v. Superior Court (1978), 20
Cal.3d 906, 915.

Both parties rely upon In re Complex Asbestos Litigation, to support their respective
positions. It is, perhaps, instructive to address that case in some detail herein. In In re
Complex Asbestos Litigation a paralegal worked for a law firm representing the
defendants in the asbestos litigation. Before leaving the defendants’ law firm, the
paralegal accessed the firm’s computer and obtained confidential information
regarding the plaintiffs’ cases being handled by another law firm. The paralegal then
went to work for that law firm. The defendants’ law firm moved to disqualify the
plaintiffs’ firm and the trial court granted the motion. The appellate court affirmed. In
doing so the court set forth for the first time in California standards for disqualifying a
law firm based on a nonattorney’s conflict of interest. The court stated that the party
seeking disqualification must show that its present or past attorney’s former employee
possesses confidential attorney-client information materially related to the proceedings
before the court. The party should not be required to disclose the actual information
contended to be confidential. However, the court should be provided with the nature of
the information and its material relationship to the proceeding. Once this showing is made, a rebuttable presumption arises that the information has
been used or disclosed in the current employment. To rebut the presumption, the
challenged attorney has the burden of showing that the practical effect of formal
screening has been achieved. The showing must satisfy the trial court that the
employee has not had and will not have any involvement with the litigation, or any
communication with attorneys or coemployees concerning the litigation that would
support a reasonable inference that the information has been used or disclosed. If the
challenged attorney fails to make this showing, then the court may disqualify the
attorney and the law firm.

It is to be noted that the standards for disqualifying an attorney differ from the
standards for disqualifying a nonattorney for conflict of interest with a former client. In
the case of an attorney, the court will presume that the attorney possesses confidential
information if there is a substantial relationship between the former and current
representations [ H.F. Ahmanson & Co. v. Salomon Bros., Inc. (1991) 229 Cal. App. 3d
1445, 1452]. In the case of a nonattorney, “the party seeking disqualification must
show that its present or past attorney’s former employee possesses confidential
attorney-client information materially related to the proceedings” [ In re Complex
Asbestos Litigation, supra, at p. 596; accord Western Digital Corp. v. Superior Court
(1998) 60 Cal. App. 4th 1471, 1487, (rule applied to expert witness)]. The party
seeking disqualification of the nonattorney need not reveal the confidential information
itself, but must provide the court with “the nature of the information and its material
relationship to the proceeding” [ In re Complex Asbestos Litigation (1991) 232 Cal.
App. 3d 572, 596] .

The court explained its reasons for adopting a more restrictive rule in the case of the
nonattorney as follows :

T]he substantial relationship test is a tool devised for presuming an attorney
possesses confidential information material to a representation adverse to a former
client. The presumption is a rule of necessity because the former client cannot know
what confidential information the former attorney acquired and carried into the new
adverse representation. The reasons for the presumption, and therefore the test, are
not applicable though, when a nonlawyer employee leaves and the attorney remains
available to the client. The client and the attorney are then in the best position to know
what confidential attorney-client information was available to the former employee.

In addition, the court noted that the broader “substantial relationship” test “presents
unnecessary barriers to employment mobility” and “sweeps more widely than needed
to protect client confidences … . [The] rule could easily result in nonlawyer employees
becoming ‘Typhoid Marys,’ unemployable by firms practicing in specialized areas of
the law where the employees are most skilled and experienced” [ In re Complex
Asbestos Litigation (1991) 232 Cal. App. 3d 572, 595] .

The sole evidence provided in support of the moving papers to disqualify based on
Rolandsson is Beal’s declaration that she “worked closely on the plaintiff’s file and was
privy to confidential information.” The Court finds this evidence to be wholly
conclusory and insufficient to support a determination that Rolandsson had access to
confidential attorney client communications regarding this action during her four
months of employment by plaintiff’s counsel. Although Beals provides a second
declaration in reply asserting the Rolandsson became privy to confidential attorney- client information during weekly case review meetings, the Court will not consider new
evidence (other than rebuttal) in reply, as the opposing party is deprived of an
opportunity to respond. Even were the Court to credit this evidence, it is insufficient to
support disqualification. Mere exposure to the confidences of an adversary does not,
standing alone, warrant disqualification. Protecting the integrity of judicial proceedings
does not require so draconian a rule. Knowledge of confidential information, however,
is not automatically imputed to or from nonlawyer support personnel. Rather, under
existing California authority, the party seeking disqualification must demonstrate that
the nonlawyer employee actually possesses confidential information that is material to
the representation. (In re Complex Asbestos Litigation , supra, at pp. 595-596 ].
California’s rule is consistent with the prevailing majority rule in the United States on
this point. There is no evidence in this case of any breach of confidence by the
secretary; to the contrary, the Rolandsson declaration avers that she did not work on
the case or speak with anyone about it, while at her former firm.

Additionally, an unreasonable delay shall be a factor considered to justify denial of a
disqualification motion. Liberty Nat’l Enterprises, LP. v. Chicago Title Inc. Co. (2011)
194 Cal.App.4th 839, 845. Delay is significant not only from the perspective of
prejudice to the nonmoving party, it is also an indication that the alleged breach of
confidentiality was not seen as serious or substantial by the moving party. Id. In Zador
Corp. v. Kwan [(1995) 31 Cal. App. 4th 1285, 1302], the court considered the
defendant’s delay in moving to disqualify plaintiff’s counsel. In overruling the trial
court’s disqualification order, the court noted: “Motions to disqualify are often used as a
tactical device to delay litigation.” In this case, the Heller law firm previously
represented Zador and Kwan on the subject matter in litigation. The court agreed that
Kwan moved to disqualify Heller soon after Zador filed a cross-complaint against him.
However, “it is also true that the possibility of litigation was evident nearly three years
before Kwan filed his motion [in 1993]. In 1990, Heller advised Kwan of the potential
conflict. Kwan retained separate counsel. Further, Kwan’s counsel threatened to
disqualify Heller if Zador sued Kwan. Thus, it is a possibility that the motion to
disqualify was used as a litigation tactic.”

Here, where plaintiff’s counsel knew that his former assistant worked for the defense
counsel and asked defense counsel to “say hello to Judy for me” on subsequent
occasions, the court cannot ignore the inference that the alleged breach of
confidentiality was not seen as serious by the moving party.

Additionally, as noted, the Court can properly consider the possibility that the party
brought the motion as a tactical device to delay litigation. In exercising its discretion
with respect to granting or denying a disqualification motion, a trial court may properly
consider the possibility that the party brought the motion as a tactical device to delay
litigation. Where the party opposing the motion can demonstrate prima facie evidence
of unreasonable delay in bringing the motion causing prejudice to the present client,
disqualification should not be ordered.

This Court finds the one year delay between Nov. 28, 2012 and this motion to be
excessive and the nature of the asserted conflict to be insufficiently substantiated by
moving party.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.