Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Attorney Mobility: Switching Sides, Conflicts and Law Firm Disqualification.

Attorneys, like star athletes, move from team to team. The days of single city law firms and lifetime commitments by firms to their attorneys and attorneys to their firm are long since gone. Attorneys have become fungible and move from firm to firm- often to firms with many attorneys spread among far flung offices.

The law of conflicts and of law firm disqualification has also evolved in recognition of the dynamics of attorney mobility and firm size. The Fourth District Court of Appeal in California Self – Ensurers’ Security Fund v. The Superior Court of Orange County (ActivCare Living) 2018 DJDAR 1005 held that an attorney who “switches sides” by moving to a firm which represents a party adverse to a previously represented party by that attorney does not automatically disqualify the new firm from continued representation of its client.

Attorney Selesnick had worked for the Michelman law firm and while there represented ActivCare. ActivCare was a defendant in litigation brought by Fund, represented by the Nixon Peabody law firm. While at the Michelman law firm Selesnick worked on the case, participated in confidential discussions and was aware of matters of strategy and tactics. On February 1, 2017 Selesnick left the Michelman law firm and joined Nixon Peabody. Nixon Peabody parted ways with Selesnick on March 8, 2017. The firm established an ethical wall, although that appears to have been after the Michelman law firm complained about the conflict.

The Michelman law firm moved to disqualify Nixon Peabody and the trial court concluding that disqualification was mandatory granted the motion. The Court of Appeal reversed and remanded the matter to the trial court directing it to vacate its order disqualifying Nixon Peabody and to consider all relevant facts and circumstances regarding whether or not confidential information had been disclosed and other relevant facts.

The Court of Appeal in its discussion reviewed the California Supreme Court and appellate court decisions dealing with disqualification of law firms where an attorney has been hired and has “switched sides.” In the discussion, the court notes that the two relevant policies of ensuring the protection of client confidences and the preservation of a client’s expectation of and right to the undivided loyalty of her attorney are significant in the analysis. Where an attorney leaves a firm, the concern of loyalty is not relevant. However, the trial court’s attention should be addressed to whether or not there has been disclosure of confidential information. That should be the focus of the trial court.

The court continued that it is to be presumed there has been disclosure of confidential information. However, that presumption is rebuttable. Also, the establishment of an ethical wall is a factor to be considered but is not outcome determinative.

The decision serves as an alert to both law firms and mobile attorneys to ensure that their conflict checks are complete and exhaustive. Further, the decision is also significant for the court’s recognition of the economics of the legal profession and of the ongoing evolution of the law in recognition of those economics. Finally, the decision is a very good recapitulation of the state of the law of firm disqualification.

-- Charles Berwanger 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**