Case Number: YC066846    Hearing Date: January 05, 2015    Dept: 91

Plaintiff’s Motion for An Order to Disqualify Defendants’ Attorneys, filed on 12/15/14, is GRANTED. Cal Code Civ Procedure § 128.

There is no dispute that Steven Stutsman switched sides in the same action now pending before the court. He previously managed the representation of Plaintiff’s case for the firm of Hahn, Bistline and Associates. Nematollahi declaration, ¶ 3. Mr. Stutsman left the firm in July of 2014 and joined Wood, Smith, Henning & Berman (“Wood, Smith”). Nematollahi ¶ 5.

On 12/11/14, Clinton & Clinton (Defendants’ counsel) associated in Wood, Smith as additional counsel in this action. The only issue here is whether “ethical screening” is a permissible remedy where a party’s counsel switches sides in the same action. The case on which Defendants rely concluded that “when a tainted attorney moves from one private law firm to another, the law gives rise to a rebuttable presumption of imputed knowledge to the law firm, which may be rebutted by evidence of effective ethical screening.” Kirk v. First American Title Ins. Co., 183 Cal. App. 4th 776, 814 (Cal. App. 2d Dist. 2010)

However, Kirk acknowledges that the rule under Henriksen v. Great American Savings & Loan, 11 Cal. App. 4th 109, 114-115 (Cal. App. 1st Dist. 1992) still applies to require automatic disqualification where an attorney switches sides in the same case. Kirk at 800. Kirk did not involve an attorney switching sides in the same case. In Kirk, four attorneys who represented a title insurance company moved to a new law firm. The new law firm employed an attorney who had provided consultation services to Plaintiff’s attorney in that action. In that particular context, the court decided that imputed disqualification of the entire firm was not automatic, and that appropriate screening methods could be employed. Kirk at 783.

The rule requiring automatic disqualification remains undisturbed, where an attorney switches sides in the same lawsuit. Further, disqualification applies to the entire law firm. Henriksen v. Great American Savings & Loan, 11 Cal. App. 4th 109, 114-115 (Cal. App. 1st Dist. 1992).

While the court in Kirk developed an analysis for effective screening in that particular situation, it ultimately held that “if the tainted attorney was actually involved in the representation of the first client, and switches sides in the same case, no amount of screening will be sufficient, and the presumption of imputed knowledge is conclusive.” Kirk.

Accordingly, the firm of Wood,Smith is disqualified from further representation of defendants.
The firm of Clinton & Clinton is also disqualified as it associated in Wood, Smith as additional counsel. Under Kirk, the presumption of imputed knowledge is conclusive.