I'm somewhat on board with the result the Court of Appeal reaches in this case, which affirms the denial of an attorney disqualification motion by the trial court. There are nonetheless certain portions of the opinion that seem both doctrinally wrong as well as substantially pernicious in other cases, at least to people (like me) who are seriously concerned with legal ethics.
Here, an indigent person called up a public interest organization (California Indian Legal Services) to seek its representation in a lawsuit she wanted to file against her brother regarding a property dispute. An intake advocate talked to her about the lawsuit but the organization ultimately declined to represent her because she didn't live in the relevant county (Inyo) that the organization served. She subsequently was able to find a different firm to represent her and filed suit, at which point the organization she had contacted agreed to represent her brother in that very same action, and she then moved to disqualify that entity.
The Court of Appeal held that disqualification was not required, in part due to the fact that it was a public interest organization (seems right - DQ motions are somewhat disfavored for such entities), because the only person plaintiff talked to at that organization was an intake advocate who has now left the place (also seems right - that'd make it easy to screen, as well as practically limits the risk of potential transmission of confidential information), and in part due to the limited scope and nature of the information conveyed to the intake advocate (ditto: we're not massively worried about this, at least as a relative matter).
So all that seems fine to me.
What bothers me about the opinion, however, is its casual disregard of certain types of confidences and assertion that certain material doesn't count as "confidential" in the context of potential representation.
Justice Ramirez (somewhat) rightly notes that Rule 1.18 -- the ethical rule regarding duties owed to prospective clients -- doesn't expressly define what counts as "confidential information" under the rule. (Though that's largely because Rule 1.18 incorporates Rule 1.6 and Section 6068, neither of which use that term either.) It nonetheless says that if the lawyer received material in "confidence" (or "secrets") from a client, the lawyer and the firm is disqualified --unless there's effective screening, which there wasn't here.
Where the Court of Appeal errs, in my view, is when it holds that the law firm here didn't receive any confidential information from the client.
It's quite plausible that Justice Ramirez is right that the "income" information that the prospective client revealed to the legal advocate doesn't really count because it was only to see if she qualified for legal services and wasn't relevant to the lawsuit. Ditto, perhaps, for the "already-public" background data about the underlying piece of property; I could see not disqualifying someone for that.
But the Court of Appeal goes on to say the following:
"As for the information regarding plaintiff’s statements that defendant exercised undue influence on Willet, that information could not be viewed as confidential where it related to the theory of recovery she intended to pursue, and which would have been disclosed in the pleadings. The case-related information was not confidential, did not risk any harm to plaintiff, and was not material to her action to quiet title, although some of the information was, in fact, included in her quiet title action. Therefore, it cannot be said that the information that was communicated to the intake advocate, as relayed to those responsible for the decision whether or not to accept plaintiff’s case, was confidential in nature, much less harmful to plaintiff."
That just seems clearly wrong to me. That information is crystal clearly "confidential information" that is privileged under Section 962 of the Evidence Code since it was communicated solely for purposes of the anticipated litigation and not contemporaneously disseminated to third parties. That the client might subsequently reveal those same facts in the litigation is entirely irrelevant. You can't ask someone in a deposition or at trial "What did you tell your lawyer about your case?" even if you limit that inquiry to topics or information that were subsequently revealed by you in the case. It's privileged. It's confidential and protected.
Plus, the whole point of both Rule 1.18 and the underlying privilege is that we protect this information to make sure that no one gets to critically explore whether (or to what extent) the stuff that you said to your lawyer is consistent with what you later say under oath. Imagine that a prospective client tells the lawyer (as she might well have): "Yeah, my mother was a little bit out of it sometimes, but she was on balance coherent the majority of the time, and at least for the 5 minutes I talked to her, she seemed clear as far as I could tell." During the client's deposition, she might well have a much more forceful and less ambiguous recitation of those facts: "My mother was almost always coherent, and during the entire half hour I talked to her, she was clear as a bell." Do you think you're permitted to discover the quite-a-bit impeaching statement the client gave to her lawyer? No way. It remains fully confidential and protected -- and rightly so, because we don't want to chill attorney-client communications since we're worried that they might otherwise be less than forthright, with disastrous consequences.
The fact that the subject matter of the communication was later raised in the pleadings (or anticipated to be used therein) is totally irrelevant. It remains protected. So too here.
And that's true equally with both prospective and current clients. Once you, as a lawyer, have heard the unvarnished recitation of facts from the prospective client, you can't obviously can't ethically represent the adverse party in that exact same litigation. 'Cause if you could, you could -- and would -- surely ask (and know to ask) the obvious follow-up questions: "Didn't you in fact previously say, much earlier in time and before this litigation commenced, that she was only coherent a 'majority' of the time (rather than 'almost always', and say that she was only purportedly 'clear' for 5 minutes, rather than the half hour you referred to in your current sworn testimony?"
We don't allow that. If we did, you wouldn't be honest with your prospective lawyer. And you'd feel quite accurately unjustly turned upon if your would-be-lawyer used what you told him against you in the litigation.
The Court of Appeal repeats that same mistake, in my view, later in the opinion when it says: "We cannot consider communication of the nature of plaintiff’s anticipated action against defendant to be confidential information where plaintiff was seeking representation in anticipation of filing a lawsuit based on that information in court. Plaintiff’s cause of action alleges that any transfer of the title to the property in question is “void ab initio” without referring to any deed in favor of defendant, while also alleging that defendant is an ex-felon whose testimony in court would be subject to impeachment. It does not require prescience to predict that the basis of these allegations would be explored in discovery in this litigation. Plaintiff cannot reasonably assert that the preliminary information about the “issue” in the case was a confidential communication."
I could potentially agree that obviously public information isn't confidential and so doesn't necessarily require disqualification. But that's almost certainly not the only stuff that plaintiff revealed. And as an important doctrinal matter, it matters zero (in my view) that the information that you convey to your lawyer is information that you reveal "in anticipation of filing a lawsuit based on that information in court." When I tell a lawyer that someone punched me half a dozen times and it hurt like an 8 on a scale of one to 10, that stuff's privileged and confidential regardless of whether I presently intend to say the exact same thing (or perhaps something a little different) if asked that precise question at a deposition or at trial. My adversary doesn't get to learn what I told that would-be lawyer by either asking me at a deposition what I told him or by the mere expedient of hiring that attorney herself.
That's my view, anyway. I'd substantially narrow the opinion accordingly.
This from someone who occasionally teaches Professional Responsibility and takes this stuff seriously.
