Thursday, January 22, 2009
Court: Long Beach Firm Disqualified Due to Conflict of Interest
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal has upheld the disqualification of the Long Beach-based Metzger Law Group from representing a plaintiff in a toxic tort action due to its associate’s prior representation of a defendant in the same suit.
Los Angeles Superior Court Judge Raul A. Sahagun did not abuse his discretion in finding Brett Drouet’s successive representations barred his firm from representing Teresa Meza in her suit for damages based on her alleged exposure to harmful chemicals at her workplace Div. Three ruled in an unpublished decision issued Tuesday.
Meza claimed that she had been exposed to hundreds of toxic chemicals during the four years she worked as a sorter and packager for Aztec Concrete Accessories Inc. in Fontana.
After retaining the Metzger Law Group as counsel, she filed suit against Joe’s Plastics Inc. and 16 other defendants, alleging that she sustained injuries to her internal organs and became ill with asthma, reactive airways disease and interstitial pulmonary fibrosis as a result of her exposure to the chemicals.
At least 15 of the defendants retained separate counsel and filed separate answers to Meza’s complaint. Drouet, who was then employed by the law firm of Waters, McCluskey & Boehle, represented Joe’s Plastics.
The defendants subsequently entered into a written agreement to share joint defense costs incident to the common defense, including fees for depositions of percipient and expert witnesses, expert preparation, site inspection costs for consultants and experts, compilation of medical records by consultants and experts, medical examinations, data base creation and maintenance by consultants and experts, and costs of deposition transcripts.
Drouet signed the agreement on behalf of Joe’s Plastics and communicated with counsel for the other defendants in later meetings, telephone conversations and other correspondence in which counsel for the defendants and Drouet undisputedly shared their individual work product concerning the litigation.
Judgment was later entered in favor of the defendants, and Meza appealed. While the appeal was pending, Drouet became an associate with the Metzger Law Group and the trial court granted a motion to disqualify the firm from representing Meza.
The Court of Appeal reversed the trial court’s order disqualifying the Metzger Law Group without prejudice on the ground that the trial court did not have jurisdiction over the matter while Meza’s appeal on the merits of her claim was pending. The appellate court also reversed the judgment against Meza and remanded for further proceedings.
Seven months after joining the Metzger firm, Drouet left. Meza dismissed Joe’s Plastics from the lawsuit after Drouet left the firm, but before Lucent Polymers Inc. filed a motion to disqualify the Metzger Law Group from representing Meza on remand.
In opposition to the motion, Meza submitted a declaration from Drouet which claimed that he never directly communicated with any defendants other than Joe’s Plastics, and that counsel for the other defendants never disclosed to him any communications they had with their clients. Drouet’s declaration further denied that he had any communications with anyone at Metzger regarding Meza’s suit.
After conducting an in camera review of certain written communications among defense counsel submitted under seal by Lucent, the trial court granted the motion to disqualify the Metzger firm.
On appeal, Meza contended that the non-client litigants lacked standing to bring a motion to disqualify her counsel.
But Justice Patti S. Kitching explained that Lucent and the other defendants had standing to bring the disqualification motion based on their interest in protecting the attorney work product disclosed to Drouet during the time he participated in the joint defense effort.
“An attorney may certainly be disqualified in order to protect the attorney-client privilege,” Kitching wrote.
The defendants also did not waive the privilege by disclosing work product amongst themselves and their attorneys because attorneys representing separate clients with common interests in litigation may share work product with each other without waiving work product protection, Kitching added.
Because there was “more than a mere substantial relationship” between Drouet’s representation of Joe’s Plastics and Meza’s suit that created a per se conflict of interest, Kitching reasoned that Drouet was disqualified from representing Meza.
She also reasoned that Drouet’s disqualification also disqualified the Metzger firm based on a presumption that each member of the firm had imputed knowledge of the confidential information known to Drouet.
Although there is a limited exception to vicarious disqualification if an attorney who switched sides in a dispute could show there was no opportunity for confidential information to be divulged to the other members of his firm, Kitching noted that this exception does not apply if the attorney switched sides in the same lawsuit.
Based on Drouet’s successive representation of Joe’s Plastics and Meza, Kitching concluded, vicarious disqualification of the firm was compelled as a matter of law.
Justices H. Walter Croskey and Richard D. Aldrich joined Kitching in her opinion.
Raphael Metzger and Gregory A. Coolidge of the Metzger Law Group represented Meza. Scott T. Tropio, Christopher J. Hammond and Jon M. Kasimov of Tropio & Morlan represented Lucent Polymers Inc.
According to the State Bar, Drouet is currently with The Morrison Law Group.
The case is Meza v. H. Muehlstein & Co., B201427.
Copyright 2009, Metropolitan News Company