Thursday, June 25, 2026
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Court of Appeal:
Firm’s Firing of Conflicted Lawyer Disrupts Disqualification
Opinion Says No Error in Denying Motion Where New Employer Terminated Attorney After 10 Days on Job, Substantial Evidence Supports Finding That She Did Not Share Material, Confidential Information
By Kimber Cooley, associate editor
The Fifth District Court of Appeal held yesterday that a trial judge rightly denied a motion seeking the disqualification of a firm that had hired an attorney who had represented an opposing party in ongoing litigation, declaring that the prompt termination of the associate was sufficient to avoid a conflict where substantial evidence supported a finding that the lawyer had not shared any confidential information.
Emphasizing that the State Bar Rules of Professional Conduct, as adopted by the California Supreme Court in 2018, govern conflicts of interest, the court rejected the view suggested by earlier cases that disqualification of a firm may be required where an attorney switches sides during pending litigation.
Presiding Justice Brad Hill authored the opinion, joined in by Justices Rosendo Peña Jr. and Arlan L. Harrell, saying:
“In 2018, the California Supreme Court passed new ethical rules that coalesced…existing case law principles into a defined set of rules. While the case law continues to provide substantial guidance on the history and intent behind a lawyer’s ethical obligations in California, the foundational touchstones of any disqualification motion alleging an ethical violation are the current State Bar Rules of Professional Conduct.”
Governing Rules
Those rubrics include Rule 1.9, which provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client,” and Rule 1.10, which specifies:
“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so.”
A carve-out allowing for continued representation by a law office applies if “the prohibition is based upon Rule 1.9…and arises out of the disqualified lawyer’s association with a prior firm,” and “the disqualified lawyer is timely screened from any participation in the matter” and “written notice” as well as “certifications of compliance” are promptly given to any affected party.
Subdivision (b) further instructs that, “[w]hen a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer” unless “the matter is the same or substantially related” and “any lawyer remaining in the firm has” received material confidential information.
Question of Disqualification
The question of disqualification arose after attorney Lisa Horton left the firm of Sagaser, Watkins & Wieland PC to join the Fresno office of Borton Petrini LLP. Her first day at the new firm was April 15, 2024.
During her time with Sagaser, Horton had handled two depositions in litigation between her then-client, Munger Hortifrut North America LLC, and Dan Drake Enterprises LLC, which was represented by attorneys with the Bakersfield office of Borton Petrini.
On April 19, Sagaser attorney Charles Hamamjian informed Dan Drake’s primary counsel, Michael Stump, that Horton had worked on the case and asserted that her hire created a conflict of interest that required Borton Petrini to withdraw from any further representation in the matter.
Borton Petrini immediately took steps to block any direct communications between Stump and the newly hired attorney. The firm also barred Horton from accessing any files relating to the Munger case.
After Munger refused to provide a written waiver to the conflict in exchange for an agreement to maintain a robust ethical screen, Borton Petrini terminated Horton on April 26. One week later, Munder moved to disqualify Borton Petrini from representing Dan Drake in the litigation.
On June 11, 2024, Kern Superior Court Judge Bernard Barmann denied the request, finding that, while there was blame that could be assigned to all counsel in the case, there was no confidential information shared by Horton “either before or after she became employed by” Borton Petrini.
Ethical Conflict
Acknowledging that “[t]here is no doubt that hiring Horton created an ethical conflict given rule 1.10,” Hill said:
“Under the rules, there are two possible ways to avoid disqualification in these circumstances. Under the first, Borton Petrini could keep Horton as an associated attorney. To avoid disqualification, Borton Petrini would then need to demonstrate that Horton did not substantially participate in the underlying litigation, timely screen Horton from its other lawyers, and provide Munger with adequate written notice under the rules….Under the second, Borton Petrini could end its association with Horton. It would then be free to represent entities adverse to Horton’s past clients unless its remaining lawyers retained material, confidential information derived from representing Munger.”
Saying that “Borton Petrini chose the second route,” he continued:
“Having chosen to disassociate with Horton, Borton Petrini could thereafter represent Dan Drake unless the court found (1) the representation was on the same matter that Horton represented Munger—a point not in dispute—and (2) that any Borton Petrini lawyer remaining in the firm had material, confidential information derived from representing Munger.”
No Confidential Disclosure
Commenting that the trial judge’s finding that Horton had not provided any material, confidential information about the litigation to any other Borton Petrini lawyer was supported by substantial evidence, he pointed to a declaration averring that none of the lawyers working in the Fresno office were involved in the Munger litigation and evidence that the firm had implemented an ethical screen.
Hill noted that Munger challenged the timeliness and effectiveness of the screening protocols but remarked:
“A timely ethical screen is only an express requirement for continuing representation where the prohibited lawyer continues to work at their new firm….Where the prohibited lawyer has been disassociated, the presence and effectiveness of an ethical screen is relevant to the ultimate question whether any lawyers remaining in the firm possess material, confidential client information, but it is not a requirement for avoiding disqualification.”
The jurist declared:
“Borton Petrini disassociated with Horton, and the trial court found no attorneys at Borton Petrini held material, confidential client information related to Munger. We therefore find no abuse of discretion in the trial court’s denial of Munger’s motion to disqualify Borton Petrini.”
The case is Munger Hortifrut North America LLC v. Dan Drake Enterprises LLC, 2026 S.O.S. 1807.
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