Legal Ethics Corner
Ethics Corner 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 for SDCBA members.

 
Ethical Walls and Vicarious Disqualification: Not all Ethical Walls in the Government Context Will Stand (Part Two of Three) 
           
In the immediate prior Ethics Corner we addressed the bright line rule that where an attorney already in private practice is precluded from representing a party against his/her former client under Rule of Professional Conduct 3-310(E), i.e., because he/she has obtained “confidential information” material to the subsequent adverse representation, the entire law firm to which he/she later moves is also categorically disqualified. However, where the attorney moves from the governmental context to a private firm, ethical walls have received some judicial acceptance.
 
The first case in California to protect a firm from vicarious disqualification through the use of an ethical wall is Chambers v. Superior Court (1981) 121 Cal.App.3d 893. Therein, a former lawyer for the State, who had worked on a number of dangerous road condition cases while employed with the State, had moved to a private law firm that was suing the State for dangerous road conditions. The State moved to disqualify the firm. In opposition, the attorney declared that he had not and was not working on the case in question, had informed the State departmental law office that he would not share any information he had with his private firm employer, and had informed his private firm employer that his acceptance of employment was conditioned upon he not having to discuss or work on any case about which he had acquired information while working for the State. Nonetheless, the trial court granted the motion thereby disqualifying the firm.  On appeal, the Court reversed, reasoning that there are “substantial countervailing policy concerns” that justify the recognition of an ethical wall in this context.
 
Specifically, the Court of Appeal was concerned about the chilling effect such a vicarious disqualification rule would have on attorneys seeking governmental employment. It found guidance in an ABA ethics opinion:
 
Formal opinion No. 342 expressed concern for important policy considerations such as interference with the right to counsel of one's choice; a restrictive impact upon the disqualified attorney's future employment prospects; and potential harm to the ability of government to attract talented young attorneys, due to reduction of subsequent job opportunities (i.e., such attorneys might avoid government service "like the plague" for fear of becoming a carrier of the contagion of disqualification). (Id. at899.)
 
It also agreed with the observations of federal case law:
 
The iron rule [of vicarious disqualification] urged by the trial judge would act as a strong deterrent to the acceptance of Government employment by the most promising class of young lawyers. Indeed, in fairness to them, it would be necessary to warn them before signing on, of the disabilities likely to be incurred at a later date. Attorneys having both private and Government experience are often better qualified to be of value to courts, as their officers, and to their clients, public and private, than those having one or the other experience alone. (Id. at 900-901.)
 
Having established that the attorney in question had been completely walled off from the case at issue, the Court refused to vicariously disqualify the law firm.
 
The above reasoning was later followed in Higdon v. Superior Court (1991) 227 Cal.App.3d 1667, 1678-1681. There, a former commissioner who heard contested marital dissolution proceedings left the bench and joined the law firm representing some of the parties in the very same dissolution proceedings over which the judge previously presided. The court noted that no confidential information was involved:
 
We thus return to the fact that no conflict of interest is even alleged here; rather the appearance of impropriety is asserted as the sole basis supporting recusal of [former commissioner’s new law] firm. Except for authorized ex parte matters and instances of unethical behavior, a judge's role in a court proceeding does not present the opportunity for confidentiality with a party. ([Citation].) Nonetheless, the parties' and the public's perception of impropriety needs to be alleviated by a process which assures that neither the former judge nor his law firm has or will receive an unfair advantage. Screening serves this purpose. A trial court hearing a recusal motion thus must look beyond the mere allegation of appearance of impropriety to determine whether appropriate screening has occurred and whether screening can effectively continue to protect against the former judge's participation. (Id. at 1680.)
 
Because the trial court had failed to consider whether the screening implemented was effective, the matter was remanded for that purpose.
 
Chambers and Higdon do not, however, support the proposition that a former governmental lawyer or judicial officer can always be effectively screened to save his/her subsequent private firm employer from disqualification. In Cho v. Superior Court (1995) 39 Cal.App.4th 113, a judge who had presided over multiple settlement conferences in a case, and had received confidential party information relating to the merits of the moving party’s case as well as its “bottom line settlement,” later joined the firm representing that party’s opponent. Noting that Chambers and Higdon were not on point because neither case involved confidential information, the Court held that an ethical wall would not defeat vicarious disqualification under these facts:
 
No amount of assurances or screening procedures, no "cone of silence," could ever convince the opposing party that the confidences would not be used to its disadvantage. When a litigant has bared its soul in confidential settlement conferences with a judicial officer, that litigant could not help but be horrified to find that the judicial officer has resigned to join the opposing law firm-which is now pressing or defending the lawsuit against that litigant. [Fn. Omitted] No one could have confidence in the integrity of a legal process in which this is permitted to occur without the parties' consent. (Id. at 126.)
 
The Cho court’s statements, although made while addressing the government-to-private practice context, underscore one of the main concerns in the non-governmental private practitioner context. As will be addressed in the next Ethics Corner piece, the debate in that arena is heating up.
 
--Luis E. Ventura
 
**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.**