The California Rules of Professional Conduct establish the most idiosyncratic legal ethics rules in the nation. So I'm hardly going to complain when the California judiciary interprets those provisions in a manner that makes them more consistent with the prevailing regime outside of our Great State. Besides, it makes my job easier -- that way when I teach my Professional Responsibility class (which I've taught for the past decade) I'm required to spend less time explaining the myriad of differences between the Model Rules of Professional Conduct and the ethical rules that apply here.
So it is not like I'm going to complain bitterly that the California Court of Appeal interpreted Rule 3-310(E) here to essentially to mean the same thing as Model Rule 1.10(b), notwithstanding the fact that those two provisions -- as well as the cases that have been decided thereunder -- are fairly divergent. But I would appreciate it if Justice Curry would at least expressly recognize that what he's doing is a fair piece different than what's been done before.
He holds in this case -- entirely plausibly -- that Mitchell Silberberg & Kupp isn't disqualified from representing defendant even though a former attorney at MS&K had an attorney-client relationship (albeit a very informal one) with the plaintiff, holding that disqualification isn't required because the relevant partner had left MS&K years ago and no one remaining at the firm knew anything about the prior representation. It's reasonable, and consistent with Rule 1.10(b), to adopt such an approach. Fair enough.
But two things. First, don't try to make it look like you're not doing anything fairly new. There's a fair bit of difference between this case and Adams v. Aerojet, in which the Court of Appeals held that disqualification might not be imputed to the departing lawyer based upon the activities of others at his former firm. We are now talking about eliminating the disqualification of the law firm; i.e., the entity that actually had the prior attorney-client relationship with -- and is now directly opposing -- the plaintiff. That's different.
Second, don't justify the rule based upon the view of attorneys as "free agents" who need mobility to freely move from firm to firm. That's a justification for cases like Adams, which narrowed the imputed disqualification of the departing attorney, but not a reason for limiting diqualification of the law firm itself. Indeed, if anything, the rule articulated by Justice Curry may actually give an incentive for law firms to fire particular attorneys if doing so will thereby terminate a conflict and permit them to take on a particular client. (This is analogous to the "Drop The Client Like a Hot Potato" problem we discuss in my class about the potential ability of law firms to avoid disqualification by firing a client and thereby turning a concurrent conflict into a much more limited successive conflict.)
So for those of us interested in legal ethics, it's an interesting case. Justice Curry may well reach the correct result, but perhaps could have done so a little bit more carefully, a bit more forthrightly, and with a bit more precise recognition of the proper basis for his approach.
P.S. -- For those less interested in legal ethics and more interested in salacious gossip, the plaintiff in this case -- Ilene Goldberg -- is herself a California attorney, and asserts lots of dirt in her Complaint. So the case (and especially her brief) offers a little something for everyone.
