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C.A. Rejects Orange County’s Plea to Reinstate Its Chosen Legal Counsel
Firm Barred From Defending County Based on Conference
Plaintiff Had With Lawyers in Firm on Separate Matter
By a MetNews Staff Writer
Orange County must forego representation in a lawsuit by its chosen law firm, Lynberg & Watkins, because the plaintiff in that action had conferred with two lawyers in that firm about pending litigation against him, Div. Three of the Fourth District Court of Appeal has held.
It doesn’t matter whether, in the May 17, 2021 videoconference Robert Wheatley had with the two lawyers, Courtney L. Hylton and Ladan Shelechi, any actual conflict was created, Justice Joanne Motoike said in her unpublished opinion, filed Monday and publicly released on Tuesday.
What does matter, she declared, is that as of May 17, 2021, Lynberg was handling a lawsuit by Wheatley and his Tustin law firm against Orange County based on it having cancelled its contract for services in handling workers’ compensation claims. She cited the California Supreme Court’s 1994 decision in Flatt v. Superior Court as establishing a “per se” rule that attorneys are barred from simultaneously representing adverse parties.
‘Not on Point’
“Because this is a matter of simultaneous or concurrent representation, rather than successive representation, and therefore implicates a violation of the duty of loyalty to the client,” Motoike wrote, “the County’s arguments regarding the type of confidential information disclosed, the viability and strength of ethical walls, and the departure of the ‘tainted’ attorneys from the Lynberg firm are not on point.”
She went on to say:
“The County argues the trial court erred by applying a rule of automatic disqualification and failing to consider the ethical wall Lynberg erected between the attorneys representing the County and the specific attorneys who had entered an attorney-client relationship with Wheatley. The County concedes ‘vicarious disqualification is the general rule.’…However, the authorities the County cites involve successive, not concurrent representation of clients with adverse interests.”
Changed Circumstances
Orange County argued on appeal:
“[T]relevant facts in this case have just changed. The supposedly tainted L&W attorney who led the trial court to find for disqualification has now departed the firm during the pendency of this appeal….No remaining L&W attorneys have had any dealings with Wheatley of any type at any time….The rationale for the trial court’s disqualification order has consequently vanished.”
Motoike responded:
“The duty of loyalty to the client was breached by the law firm. Any ethical wall around Hilton and Shelechi did not solve that problem, and their departure from the firm does not solve the problem either.”
The action against Wheatley and his firm was brought by an associate who had been laid off, Lee Ann Smythe. She claimed age discrimination and wrongful termination.
Next-Day Withdrawal
A day after the May 17, 2021 teleconference, Hylton wrote to Wheatley saying:
“Although our initial conflict check was clear, I have been informed that our firm has been retained to represent the County of Orange with respect to the claim for damages your firm submitted against the County. As such, I am unable to represent you on this matter.”
Wheatley’s motion for the disqualification of Lynberg & Watkins was granted by Orange Superior Court Judge Nathan R. Scott. The county appealed; the Lynberg firm did not.
The case is Wheatley v. County of Orange, G061149.
S. Frank Harrell, Norman J. Watkins and Marlena R. Mlynarska of the Los Angeles office of Lynberg & Watkins represented Orange County on appeal. Gerald A. Klein and Brian M. Kelly of the Newport Beach firm of Klein & Wilson acted for Wheatley and The Wheatley Firm.
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