Thursday, September 9, 2004
Mere Hiring of Opposing Counsel Does Not Require Disqualification of City Attorney’s Office—C.A.
By a MetNews Staff Writer
The fact that a lawyer became a deputy city attorney does not necessarily require that the entire city attorney’s office be disqualified from litigation with the lawyer’s former client, the Court of Appeal for this has ruled.
Div. Six Tuesday overturned a Santa Barbara Superior Court judge’s ruling that the Santa Barbara City Attorney’s Office be disqualified from representing the city in litigation with homeowners whose property was flooded last year by water and sewage from a city main.
The homeowners claim the city was at fault because it failed to properly maintain and repair the sewer line. The city blames the plaintiffs, saying they should have equipped their sewer lateral with a working backflow device.
The plaintiffs are represented by the law firm of Hatch & Parent. One of the two Hatch & Parent lawyers who were initially primarily responsible for the matter, Sarah Knecht, left the firm earlier this year to become a deputy city attorney.
The city’s primary attorney on the case is Assistant City Attorney Janet McGinnis. When Knecht joined the office as a non-litigating and non-supervising deputy, McGinnis constructed an “ethical wall,” ordering that no one in the office communicate with Knecht about the case.
Judge James Brown ruled that the ethical wall was insufficient. But Justice Kenneth Yegan, writing for the Court of Appeal, disagreed.
Past cases, Yegan acknowledged, have not found the use of an ethical wall or screen to be sufficient when the attorney involved had actual knowledge of confidential information. But nor have they countenanced the disqualification of an entire public law office, as distinguished from a private firm, because one of its attorneys had been the lawyer for the adverse party, the justice said.
On the facts, the justice concluded, the motion to disqualify should have been denied, since there had been no actual breaches of confidence and the court should have presumed that Knecht would not engage in conduct she knew to be unethical.
Knecht’s role within the city attorney’s office should also have been considered, Yegan wrote, explaining:
“She has no managerial or supervisory responsibilities and does not appear to be in a position to influence her colleagues’ performance evaluations or city policy with respect to this case or any other litigation. Similarly, McGinnis has no managerial or supervisory authority over Knecht. The two lawyers do not attend staff meetings together. Knecht does not have access to files concerning this matter which are stored separately from the non-litigation files she uses. Finally, as important as this matter must be to the parties involved in it, we doubt whether it has garnered much media attention or captured the public imagination. As a result, the use of an ethical screen will be less likely to erode public confidence in the administration of justice, the integrity of the bar or the professionalism of the city attorney’s office.”
The case is City of Santa Barbara v. Superior Court (Stenson), 04 S.O.S. 4921
Copyright 2004, Metropolitan News Company