Metropolitan News-Enterprise


Wednesday, December 6, 2006


Page 1


Attorney Disqualification Motion Must Be Supported By Direct Facts, Not Just Inferences—Appeals Court


By TINA BAY, Staff Writer


An attorney disqualification motion must be supported by direct evidence of facts that the moving party is able to disclose without compromising confidential information, not merely inferences about such facts, the Fifth District Court of Appeal ruled yesterday.

Reversing a disqualification order by Kern Superior Court Judge Sidney P. Chapin, the justices held Newport Beach lawyer Marshall Silberberg was not barred from representing plaintiffs in a medical malpractice action against Bakersfield Memorial Hospital.

Writing for the court, Justice Betty L. Dawson said the hospital’s motion to disqualify Silberberg “relied too heavily on inferences about facts that were within its control and that could have been disclosed without compromising confidential information.”

The attorney was retained last April by Jennifer and Allan Faughn to serve as trial counsel in their daughter Katie’s action against the hospital.

Through her mother as her guardian ad litem, the minor alleged the hospital and other defendants negligently managed her birth, causing damage to the nerves providing movement and feeling in her arm. Jennifer Faughn, who along with her husband was also a plaintiff in the suit, allegedly suffered her own set of injuries from the labor and delivery.

Bakersfield Memorial argued that because Silberberg had previously defended its parent corporation in five separate cases involving birth injuries to infants delivered by other member hospitals, he should be recused from the Faughn suit. The parent entity, Catholic Healthcare West, administers a professional liability trust that assumes liability for, and pays for the defense of, all claims brought against its dozens of member hospitals.

Bakersfield Memorial claimed that Silberberg’s prior representations were substantially related to the Faughn case because CHW directly controls all litigation against its member entities. The hospital asserted CHW uniformly applied its defense practices to all members and it therefore had no independent decision-making role in defending malpractice claims.

In gaining a detailed understanding of how CHW handles birth injury cases, the defendant said, Silberberg therefore had the unfair advantage of knowing the specific claims-handling practices of Bakersfield Memorial’s claim managers.

The attorney, who had been retained by CHW while a shareholder in the law firm of LaFollette Johnson, countered that he never represented Bakersfield Memorial, talked to any of its employees, or learned anything about its strategies, policies or protocol. The other five cases did not involve the type of injury allegedly suffered by Katie Faughn, the lawyer added.

Nonetheless, Chapin granted the hospital’s motion, concluding there was a substantial relationship between Silberberg’s prior and current representations, and thus that he presumably possessed confidential information about Bakersfield Memorial.

But the Court of Appeal said the hospital’s factual assertions were not supported by direct evidence.

Dawson explained that the supporting declaration of CHW’s president and general counsel stated only that CHW assumes liability and pays defense costs in professional liability suits against its members.

There was no evidence that the decision makers in the Faughn case were individuals with whom Silberberg had dealt in prior cases, the justice said. Moreover, she pointed out, the record contained statements by three CHW claims managers that could support an inference that regional facilities had some control over litigation.

“[W]e will not infer that (1) no individual employed by Bakersfield Memorial Hospital has any role in making any decision about the defense of plaintiffs’ claim or that (2) Attorney Silberberg is familiar with the individuals who will be the decision makers,” the jurist wrote.

Justices Steven M. Vartabedian and Dennis A. Cornell concurred in the opinion.

Silberberg told the MetNews the hospital simply wanted to get him off of the case due to his ability as a trial lawyer.

“I understand that tactic, but it didn’t work,” he said.

The lawyer added:

“People are entitled to have lawyers of their choosing and be represented by an attorney of their choosing. Clearly a lawyer cannot violate the rules of professional responsibility, which I did not think that I had done, and the appellate court confirmed that.”

A call to the hospital’s counsel was not returned.

The case is Faughn v. Perez, 06 S.O.S. 5919.


Copyright 2006, Metropolitan News Company