5.1.9

Rule 3-310:  Avoiding the Representation of Adverse Interests

Case:

Abubakar v. County of Solano (E.D.Cal. 2008) 2008 WL 336727

Issue:

Did nine correctional officer-plaintiffs in a wage and hour action against the county with some 160 named plaintiffs form an attorney-client relationship with private counsel for the county for conflict of interest purposes, requiring disqualification of that counsel, by meeting with counsel for the county, while the wage lawsuit was pending, as part of a  group of 15 officers that met in groups of four or five to discuss the defense of a separate case against the county alleging improper strip search practices, where counsel initially told the officers he would defend them as witnesses in the strip search case and defend their depositions?

Holding:

No.  An attorney-client relationship could only have been formed if the attorney had knowingly obtained material confidential information from the officers.  (Id. at *5, citing People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1148.)  The Court held that the officers’ asserted belief that the counsel for the county was their attorney as a result of the meeting was unreasonable as a matter of law, even though counsel had promised to represent them as witnesses and later sent them a letter terminating any attorney-client relationship when counsel realized nine of the officers with whom they had met were named plaintiffs in the wage action counsel also was defending on behalf of the county. 

In resisting the motion for disqualification, counsel for the county denied that he had obtained any information from the officers in the meeting that he could not have obtained in a deposition.  In addition, neither of the two officers who met with counsel for the county asserted in their declarations in support of the disqualification motion that they had divulged confidential information to him.  “Here, the silence of the officer declarations on that issue is telling.  While certainly not dispositive, the short length of the meetings (approximately one hour), combined with the fact that [counsel] did most of the talking also supports the inference that no confidential information was disclosed.”  (Id. at *5.)

The Court added that its finding “dovetail[ed] with the practical reality that any harm suffered by the plaintiffs is likely minimal.”  Even if the officers believed counsel was their attorney, counsel disabused them of this a week later when he sent them a letter clarifying his status.  “The absence of practical harm is juxtaposed against the serious consequences that would flow from disqualification, including financial burdens on the county and interference with its choice of counsel.”  (Id. at *6.)

Notes:

The Court declined to determine whether any exception applied to the general rule of per se disqualification for simultaneous representation because of its conclusion that no attorney-client relationship was formed.  The Court noted, however, that only the “mere happenstance” exception would even arguably apply.  Under that exception, an attorney “immediately withdraws from an unseen adverse representation which occurs by ‘mere happenstance,’ and . . . the attorney play[s] no role in creating the conflict as when a corporate client is acquired by another company.”  (Id. at *4, note 1, citing, inter alia, State Farm Mut. Auto Ins. v. Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1432.  Internal quotation marks and other citations omitted.)  That exception would not apply because it was foreseeable that there would be overlap between the wage plaintiffs and the strip search officer witnesses.  “Although it is understandable that the numerosity of the [160] plaintiffs in this action makes it difficult to remember all their names, that is a foreseeable risk that should have counseled more caution, not less.”  (Ibid.)

The Court noted that its focus on confidentiality was “somewhat anomalous” given that “the primary fiduciary value at stake in concurrent representation cases is that of loyalty rather than confidentiality. . . .”  (Id. at *5.)  “Nevertheless, the relationship between an attorney and a client must mature to a sufficiently serious stage before courts will intervene to protect a would-be client’s trust in his or her attorney – particularly with the harsh remedy of disqualification.  The disclosure of confidential information may not be a perfect barometer of that maturation, but it is not an irrational line to draw.”  (Id. at *5, note 3.)

The Court agreed with the plaintiffs that counsel’s meeting with the nine officers in connection with the strip search meeting violated Rule of Professional Conduct 2-100 prohibiting ex parte contact with a represented party.  That is because the officers claimed, even though they did not specifically allege in the complaint, that strip searches constituted part of the uncompensated overtime work in the action.  “But given that [counsel’s] communication was obviously inadvertent, and that no confidential information was disclosed during this contact, the harsh penalty of disqualification would not be appropriate.”  (Id. at *6.)  This was especially so given that disqualification for a 2-100 violation is only appropriate where it is certain to have a “continuing effect” on the proceeding.  (Ibid., citation omitted.)