Tuesday, June 6, 2006
City Attorney’s Conflict Requires Disqualification of Entire Office—S.C.
By TINA BAY, Staff Writer
An entire city attorney’s office was disqualified from litigation where the city attorney previously advised one of the defendants in a substantially related matter, the California Supreme Court ruled yesterday.
In a 5-2 decision, the court agreed with the First District Court of Appeal in upholding Judge Donald S. Mitchell’s order disqualifying San Francisco City Attorney Dennis Herrera and his office.
Cobra Solutions, Inc., one of the defendants the city named in a lawsuit attacking an alleged kickback scheme perpetrated by a city employee and various technology vendors, brought the disqualification motion.
Cobra, a provider of computer-related goods and services, entered into a contract with the city in 1998 enabling it to bid on contracts with various city departments. Seeking advice on a city contract with the Department of Building Inspection, the company in 2000 retained a law firm of which Herrera was at the time a named partner.
During the course of the law firm’s representation, Herrera reviewed the city contract and, Cobra’s president alleged, received disclosures from Cobra employees about “confidential aspects of Cobra’s business” that were “broad” enough to include “advocacy with City officials.”
Herrera became city attorney in 2001 and in 2003 initiated a public corruption suit that named among its defendants a Department of Building Inspection employee, who allegedly received kickbacks from computer service providers for services they never performed. When city investigators a month later discovered that Cobra was one of the vendors implicated in the kickback scheme, Herrera took measures to screen himself from the case to the extent that it could involve his former client.
After the city amended its complaint in April 2003 adding Cobra as a defendant, Cobra moved to disqualify Herrera and the City Attorney’s Office on the basis that Herrera had obtained relevant confidential information as its former attorney.
The justices rejected the city’s argument that an ethical screen was sufficient to protect client confidentiality.
Writing for the court, Justice Joyce L. Kennard said:
“Individuals who head a government law office occupy a unique position because they are ultimately responsible for making policy decisions that determine how the agency’s resources and efforts will be used. Moreover, the attorneys who serve directly under them cannot be entirely insulated from those policy decisions, nor can they be freed from real or perceived concerns as to what their boss wants. The power to review, hire, and fire is a potent one.”
Kennard said the court was not bound by the ABA Model Rules of Professional Conduct, which call for the ethical screening rather than disqualification of government lawyers in situations such as Herrera’s. She further explained that although courts have upheld the ethical screening of government attorneys to protect confidential information they obtained from former clients, the government attorney involved in each of those decisions was “simply one of the attorneys in the government office, not, as here, the City Attorney under whom and at whose pleasure all deputy city attorneys serve.”
The court disagreed with the city’s contention that the possibility of disqualification would discourage competent attorneys from running for of seeking appointment to posts such as city attorney.
“Typically such government law offices litigate many cases, and office-wide disqualification from one case is unlikely to significantly impair the office’s overall operations,” Kennard wrote.
She added that preserving the integrity of the office of a city attorney was a “compelling societal interest” requiring disqualification where the government law office’s head is tainted by conflict.
The opinion was joined by Justices Marvin Baxter, Ming Chin, Carlos Moreno, and Justice Norman L. Epstein, who sat by assignment in place of Justice Kathryn Mickle Werdegar.
Justice Carol A. Corrigan, joined by Chief Justice Ronald M. George, dissented, arguing that disqualification of an entire governmental law office should not be required in every case where the head of the office has a conflict.
“Sound public policy considerations weigh against automatic disqualification,” she wrote. “I would allow the trial court to determine on a case-by-case basis the adequacy of the screening procedures undertaken by the government law office. In exercising its discretionary review, the trial court should consider all relevant factors, including the degree of involvement of the office head with the former client, the size of the government law office, and the nature of the current suit.”
The case is City and County of San Francisco v. Cobra Solutions, Inc. 06 S.O.S. 2843.
Copyright 2006, Metropolitan News Company