2013-00147383-CU-PO

Kimberly Duran vs. North American Health Care, Inc.

Nature of Proceeding:      Motion to Disqualify the Law Firm of Schuering Zimmerman and Doyle

Filed By:   Guenard, Glenn

Plaintiffs Kimberly Duran, et al.’s motion to disqualify the law firm of Schuering,
Zimmerman, & Doyle, LLP as counsel for Defendants is granted.

In this action, Plaintiffs have filed suit against Carmichael Care, Inc., et als alleging that
inadequate medical and nursing care was provided to the decedent Margaret
Lawrence.  Plaintiffs seek to disqualify SZD as defense counsel on the grounds that
attorneys from SZD previously represented Plaintiff Kimberly Duran at her deposition
in an action for medical malpractice against Ms. Duran’s employer (Zeller action).  Ms.
Duran states that she was represented by Robert Zimmerman at her deposition and
provided SZD attorneys with sensitive and confidential information.  The deposition
occurred at the same time SZD represented Defendants North American Healthcare
and Carmichael Care, Inc. in the instant lawsuit in which Ms. Duran is a named
plaintiff.

Plaintiff first argues that disqualification is warranted on the basis that SZD
impermissibly simultaneously represented clients with adverse interests without
obtaining their informed written consent.  CRPC, Rule 3-310(c) provides that an
attorney shall not, without the informed written consent of each client, represent a
client in a matter and at the same time accept a client in a separate matter whose
interest in the first matter is adverse to the client in the first matter.  “Even though
simultaneous representations may have nothing in common and there is no risk that
confidences to which counsel is a party in the one case have any relation to the other
matter, disqualification may nevertheless be required.”  (Flatt v. Superior Court (1994)
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9 Cal.4   275, 284.)  [emphasis in original].)  “Indeed, in all but a few instances, the rule
of disqualification in simultaneous representations cases is a per se or ‘automatic’
one.”  (Id. [emphasis in original].)  Here, Plaintiff has shown that she was represented
by SZD, through Mr. Zimmerman at her deposition in the Zeller action, while at the
same time SZD represented Defendants in the instant action in which she is a named
plaintiff.

SZD concedes that concurrent adverse representations occurred when it represented
Ms. Duran at her deposition in the Zeller matter at the same time it represented
Defendants in the instant case.  SZD, however, argues that the automatic
disqualification rules do not apply because it was unaware that Ms. Duran was a
named plaintiff in the instant action and in any event does not represent her any more.
Thus, it maintains that the motion should not be analyzed under the concurrent
representation rules but rather the rules applicable to former representation.  The
Court disagrees.  SZD acknowledges that in most concurrent representation cases,  disqualification is per se, but cites to case law recognizing that disqualification may not
be automatic if there is immediate withdrawal upon discovery of the conflict.  Indeed,
“a law firm that knowingly undertakes adverse concurrent representation may not
avoid disqualification by withdrawing from the representation of the less favored client
before [the hearing on a motion to disqualify].”  (Truck Ins. Exchange v. Fireman’s
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Fund Ins. Co. (1992) 6 Cal.App.4   1050, 1507.)  However, an exception applies where
the concurrent adverse representation occurred by “mere happenstance” and
withdrawal is made immediately upon discovering the conflict.  (State Farm Mut. Auto.
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Ins. Co. v. Fed. Ins. Co. (1999) 72 Cal.App.4   1422,  1432-1433.)  In such a case, the
motion is analyzed under the former representation rule, rather than the automatic
disqualification rule applicable to concurrent representation.  (Id.)

According to SZD, this motion should be analyzed pursuant to the rules applicable to
former representation because its representation of Ms. Duran in the Zeller action
occurred inadvertently or by mere happenstance and that it no longer represents her.
However, a lawyer may not avoid the automatic disqualification rule applicable to
concurrent representation of conflicting interests by unilaterally converting a present
client into a former client.  In fact, such conversion may itself be a breach of loyalty.
American Airlines  v. Sheppard (2002) 96 Cal. App. 4th
1017, 1037. The problem, however, is that Plaintiff’s declaration indicates that SZD’s
representation of her continued beyond the deposition itself.  Indeed, she declares that
SZD has written to her since the deposition asking to review her testimony and has
indicated that it will represent her at trial in the Zeller action.  (Duran Decl. ¶ 7.)  The
declarations from SZD in support of its opposition do not controvert these statements.
Indeed, attorney Zimmerman’s declaration simply states that he offered to represent
Ms. Duran at her deposition in the Zeller case and that at the time, he was unaware
she was a plaintiff in the instant action.  (Zimmerman Decl. ¶ 3.)  He states that he only
became aware of the fact Ms. Duran was a plaintiff in the instant action when her
counsel recently brought it to his attention.  (Id.)  Zimmerman does not state that SZD
never communicated with her after the deposition in the Zeller action or that it no
longer represents her or even that it never offered to represent her at trial.  Further,
attorney Giardina only states that he was unaware that Zimmerman had represented
Ms. Duran in the Zeller case until Ms. Duran’s counsel mentioned it.  (Giardina Decl. ¶
5.)  Like Zimmerman, Giardina fails to state that SZD no longer represents Ms. Duran.

There is no dispute here that SZD concurrently represented clients with adverse
interests.  SZD admits as much.  Further, Plaintiff’s evidence, essentially
uncontroverted by SZD, is that SZD not only represented her at her deposition, but
continued to represent her after the deposition and indeed offered to continue
representing her through trial in the Zeller action.  While it may be true that SZD’s
representation of Ms. Duran in the Zeller action occurred by mere happenstance, there
is no evidence that SZD’s representation of Ms. Duran has ceased, or if it has ceased,
when exactly it ceased.  Thus, contrary to SZD’s opposition, it has not shown that any
exception to the automatic disqualification rule applies.  As a result, given the
undisputed existence of SZD’s representations of clients with adverse interest, which
Plaintiff has shown (and which SZD failed to controvert) continues, the motion must be
granted.  Further, the entire law firm of SZD must be disqualified, not simply attorney
Zimmerman.  Generally, the disqualification of an attorney vicariously disqualifies the
attorney’s law firm.  (Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4
th 453, 463.)  It appears undisputed that this is a “concurrent representation conflict” —
e.g. a lawyer (though more usually it is different lawyers, but within the same law firm,
as is presented here) might find himself/herself representing one client in a particular  matter against an opposing party, which happens to be a client of the firm in an entirely
different, unrelated matter. In the context of a law firm, every lawyer in the firm is
deemed to represent every client of the firm. So arguably, when one lawyer in the firm
represents a client in one matter, but another lawyer in the firm opposes that same
client in another, “all feeling of loyalty is necessarily destroyed.” Grievance Committee
v. Rottner (1964) 203 A. 2d 82, 84, cited with approval in Flatt, supra, at p. 286 [When
a client engages the services of a lawyer in a given piece of business he is entitled to
feel that, until that business is finally disposed of in some manner, he has the
undivided loyalty of the one upon whom he looks as his advocate and his champion. If,
as in this case, he is sued and his home attached by his own attorney, who is
representing him in another matter, all feeling of loyalty is necessarily destroyed ….”] .

Given the above, the Court need not determine whether disqualification would also be
appropriate under the rules regarding the representation of former clients with adverse
interests.  The Court notes, however, that Plaintiff’s showing in this regard is entirely
conclusory as her declaration simply indicates that SZD gained “private, sensitive, and
confidential information” from her.  (Duran Decl. ¶ 7.)  Though the Court need not
make such determination, it notes that such a showing is not per se sufficient to
support disqualification if Duran were considered a former client of SZD.  Indeed, a
member shall not, without the informed written consent of the client or former client,
accept employment adverse to the client or former client where, by reason of the
representation of the client of former client, the member has obtained confidential
information material to the employment.  (CRPC, Rule 3-310(E).)  “In order to
disqualify the attorney, the former client must show that the subjects of the successive
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representations are the same.”  (Khani v. Ford Motor Co. (2013) 215 Cal.App.4   916,
918.)  A substantial relationship exists where “the attorney had a direct professional
relationship with the former client which the attorney personally provided legal advice
and services on a legal issue that is closely related to the legal issue in the present
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representation.”  (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4   698, 710
-711.)  “[S]uccessive representations will be ‘substantially related’ when the evidence
before the trial court supports a rational conclusion that information material to the
evaluation, prosecution, or settlement or accomplishment of the former representation
given its factual and legal issues is also material to the evaluation, prosecution,
settlement or accomplishment of the current representation, given its factual and
issues.”  (Id. at 713.)  Plaintiff has failed to show that any information to which SZD
was exposed is material to SZD’s representation of Defendants in the instant action
even though both actions involved claims of medical malpractice.  In a similar vein,
courts have found that successive representations in cases with similar subject matter,
e.g. lemon law cases, was not enough to show that the representations were
substantially related.  “The evidence in this case does not establish that any
information to which Shahian was exposed during his representation of Ford would be
material to his representation of Khani in this case.  While Ford presented evidence
that Shahian represented it in California lemon law cases, it did not establish that any
confidential information about the defense in those cases could be at issue in this
case…Ford’s bare-bones evidence in this case is insufficient to establish that
Shahian’s previous representation of Ford in California lemon law cases exposed him
to confidential information that would be material to his current representation of
Khani”  (Khani v. Ford Motor Co. (2013) 155 Cal.Rptr.3d 532, 536.)  Disqualification
would not be appropriate in the event Duran was considered a former client, though as
discussed above, the evidence demonstrates that the motion should be analyzed
under the automatic disqualification rules governing concurrent representation of
clients with adverse interests.             In sum, the motion is granted.  SZD is disqualified as counsel of record for Defendants
in this action.

Plaintiff’s counsel shall prepare a formal order pursuant to CRC Rule 3.1312.