Thursday, August 26, 2004
S.C. to Review Disqualification of San Francisco City Attorney’s Office
By a MetNews Staff Writer
The California Supreme Court yesterday agreed to decide whether a San Francisco Superior Court judge properly disqualified the entire San Francisco City Attorney’s Office in a case involving a former client of City Attorney Dennis Herrera.
Justices Joyce L. Kennard, Ming Chin, and Janice Rogers Brown voted along with Chief Justice Ronald M. George at yesterday’s conference to review a June decision by the First District Court of Appeal affirming the disqualification. Justice Kathryn M. Werdegar was recused and did not participate.
In an opinion for Div. Five, Justice Linda M. Gemello said that when a private lawyer becomes head of a public law office, disqualification of the entire office is required in civil matters substantially related to the attorney’s earlier representation.
Justice Mark B. Simons dissented, arguing that a showing an effective “ethical screen” preventing Herrera from participating in the case was in place would have been sufficient.
The appeals court majority said disqualification would be necessary only in cases in which the public lawyer heads an office. San Francisco Superior Court Judge Donald S. Mitchell based his trial court ruling on a conclusion that vicarious disqualification of the entire office would be required whenever any lawyer with a public law office had represented a litigant in a substantially related matter.
Gemello said it was unnecessary for the appeals court to address that issue.
Herrera’s former client, Cobra Solutions Inc., is among three firms accused in a civil action of paying kickbacks to a city buildings department manager in return for illegal prepayments on technology contracts. The manager pled guilty to federal fraud charges in July.
The investigation initially focused on the other two firms, and was begun before Herrera was elected in November of 2001. Before his election, Herrera represented Cobra on a range of business matters, including dealings with the buildings department.
When evidence of Cobra’s involvement was uncovered, Herrera turned over all responsibility for overseeing the suit to his top deputy. But Cobra moved to disqualify the entire office.
Gemello noted that California case law on disqualification deals with lawyers moving from one private firm to another, from one public role to another, and from the public sector to the private sector, but not with the situation presented by the Cobra case.
Vicarious disqualification is presumptively required when lawyers moving from one private firm to another have represented a client on a substantially related civil matter, the justice pointed out, while for public lawyers moving between offices or into the private sector, effective screening has been considered sufficient.
In criminal matters, she observed, Penal Code Sec. 1424 permits disqualification of a district attorney’s office only upon a showing that a conflict which would make a fair trial unlikely exists.
Though she conceded in a footnote that the rationale for applying different rules in different contexts was “unclear,” Gemello said vicarious disqualification at least in situations like Herrera’s was necessary to preserve public confidence in the legal system.
“At the intersection of law and politics, where this head of office case lies, the preservation of the public trust in the scrupulous administration of justice and the integrity of the bar must be the paramount concern,” she wrote. “In the City Attorney’s prosecution of a former client for fraud, the public cannot be left to wonder whether their top civil lawyer is vigorously representing their interests, maintaining professional objectivity, and keeping inviolate his former clients’ confidences. We can ill afford the shades of doubt about the rectitude of our elected officials and our lawyers who are behind a screen. The stakes are too high for the politician’s career, for the citizens who deserve his unwavering loyalty, and for the former clients who trust him to maintain their confidences.”
No screening process, she asserted, could guarantee that the city attorney’s policymaking and personnel responsibilities would not provide an avenue for influencing the course of litigation involving a former client.
“The possibility that the City Attorney’s former client might be prosecuted for civil fraud by the City Attorney’s Office may test public faith in the integrity of the judicial system, raising the specter of perceptions that the former client will be treated more leniently because of its connections, or more harshly because of leaked confidences,” Gemello reasoned. “Neither perception is consistent with the notion that the power of the state to prosecute fraud will be exercised in an even-handed and impartial manner.”
In his dissent, Simons said the “current set of categorical rules that rigidly apply vicarious disqualification in certain contexts were developed decades ago” and are no longer workable.
“The realities of a modern law practice compel a more flexible approach,” he argued. “Lawyers are increasingly mobile, and mid-career shifts between the public and private sectors and within the private sector are common.”
Simons said he would have applied a “uniform rule” under which the presumption that vicarious disqualification is necessary would always be “rebuttable by evidence that the conflicted attorney has been effectively screened.”
Even assuming the categorical rules “retain their vitality,” he said, expanding vicarious disqualification to cases like Herrera’s was unwarranted and the City Attorney’s Office should have been permitted to prove that Herrera had been effectively screened.
The case is City and County of San Francisco v. Cobra Solutions, Inc., 04 S.O.S. 2916.
Copyright 2004, Metropolitan News Company