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Court of Appeal:
Law Firm Not Disqualified Based on Hiring Secretary Who Worked for Opposing Counsel
Opinion Affirms Decision Based on Finding That Confidential Information Wasn’t Shared With New Employer
By a MetNews Staff Writer
There’s no need to disqualify a law firm from representing the San Diego Unified Port District based on it having hired a secretary who formerly worked for the firm that’s handling an action against it, Div. One of the Fourth District Court of Appeal decided yesterday.
The employee, Kristine Merel, did work on the case when she first came aboard at the port’s law firm, Daley & Heft, but an ethical screen was erected after it was learned she was previously a secretary/paralegal/receptionist/office manager at the plaintiff’s firm, the Jon Corn Law Firm.
“It is undisputed that Merel learned confidential information concerning the case during her employment with the Corn Firm,” Presiding Justice Judith McConnell said in an opinion that was not certified for publication.
Trial Court Affirmed
The opinion nonetheless affirms an order by San Diego Superior Court Judge Richard S. Whitney denying a disqualification motion brought by homeowners who allege their homes in Coronado were damaged by dredging activities in the San Diego Bay, based on Whitney’s findings.
Based on declarations, Whitney concluded that Merel did not disclose confidential information concerning the litigation and merely formatted, filed, and served documents for Daly & Heft.
McConnell said that where an employee of a law firm had access to confidential information about a case while with a previous firm, there is a rebuttable presumption of disclosure of that information to the new employer. The homeowners argued that Whitney erred in finding the presumption to have been rebutted because it had not screened Merel during the hiring process and barred her from any connection with the case, but McConnell responded:
“[C]ontrary to the Homeowners’ argument, evidence of a screening is not a prerequisite to rebut the presumption of use or disclosure….
“Here, the Port did not produce evidence that a formal screening was instituted at the outset of Merel’s employment. But it did present other competent evidence that there was no improper use or disclosure of confidential information….”
Recusal Not Needed
The jurist declared:
“Because Merel has not used or disclosed confidential information obtained from her prior employment, and there is no indication she will do so in the future, we discern no threat to the public trust if the disqualification motion is denied. For the same reasons, we do not believe disqualification is necessary to prevent the Port from obtaining an unfair benefit. While Daley & Heft could have—and certainly should have—screened Merel from the case when she began her employment, it appears disqualification at this juncture would accomplish little more than to punish Daley & Heft for its delay in screening her. This is not a sufficient basis upon which to order disqualification of counsel. Further, disqualification would impose substantial hardship on the Port by requiring it to replace its chosen legal counsel, which has represented the Port for the past 12 years in this drawn-out 15-year litigation. Considering all these factors, we conclude the trial court did not abuse its discretion in denying the Homeowners’ disqualification motion.”
The case is SLPR v. San Diego Unified Port District, D077370.
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