Wednesday, March 27, 2019
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Court of Appeal:
Law Firm May Be Disqualified Based on Insights Ex-Employee Gained Earlier
Opinion Says Recusal Justified in Action Against County Because Former Associate Had Previously Done Work, While With Another Firm, Defending the County
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed the disqualification of a law firm from representing two plaintiffs in a wrongful death action against the County of Los Angeles because a former associate at the firm, while employed elsewhere earlier, had worked on the defense in 21 cases against the county, gaining insights.
The decision, which came in an unpublished opinion filed Monday, affirms an order by Los Angeles Superior Court Judge Robert A. Dukes barring representation of Minerva M. Marte and Charo Marte Nava by the Beverly Hills law firm of Carpenter, Zuckerman & Rowley. That firm in 2016 employed attorney Rebecca N. Herman, who had handled defense work for the county while at the downtown Los Angeles firm of Hurrell & Cantrall LLP from March 2012 to May 2016.
On at least one occasion, Herman assisted with her supervisor, Thomas Hurrell, in defending the county in a case based on an allegedly dangerous condition, which was the basis of the action by Marte and Nava.
‘Inconsequential’ Involvement
Carpenter, Zuckerman & Rowley protested that Herman’s role in the action by Marte and Nave was “inconsequential,” being limited to one ex parte appearance to request a continuance. However, Dukes noted that the firm made no effort to erect an ethical wall between Herman and the lawyers working on the case, and determined that she had developed a “well-developed, specialized understanding of the County’s legal theory of the case and litigation strategy in defending County cases.”
Writing for Div. Three, Justice Luis Lavin said:
“Contrary to the current law firm’s supposition, a prior client need not establish identity between legal and factual issues involved in a prior and subsequent representation in order to disqualify counsel. Rather, in order to show the representations are substantially related, a prior client must show there is a substantial risk that the present representation will involve the use of confidential information acquired during the course of the prior representation….And confidential information is not limited to case-specific information; it may include information relating to similar matters which would be useful to the current client in pressing its current claim, such as the identity of the key decision makers, the litigation philosophy and organizational structure of the prior client, the financial impact of pending claims against the prior client, and the existence and amount of insurance coverage.”
Insight Into Strategies
He continued:
“…Herman worked extensively on County cases during her time at the prior law firm and gained significant insight into the County’s litigation strategies generally—and in relation to dangerous condition cases. In addition, she participated in strategy meetings with key decisionmakers and learned about the County’s litigation approach and budget—information that was current, given that she left the prior law firm and joined the current law firm in May 2016 and began representing plaintiffs no later than June 2016. Such information would be of considerable value to plaintiffs in developing their strategy in the present case.”
The case is Marte v. County of Los Angeles, B279572.
Gary S. Lewis, Pejman Ben-Cohen and Gregory Coolidge of Carpenter, Zuckerman & Rowley represented their firm. They were opposed by Michael L. Wroniak, Lisa L. Peterson and James C. Jardin of Collins Muir + Stewart.
Herman has been with Pettit Kohn Ingrassia Lutz & Dolin since 2016.
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