Ethics update

By JONATHAN BISHOP and MARK TAXY

This feature highlights recent authorities in the area of professional responsibility, including new cases, advisory ethics opinions, pending legislation and proposed rule amendments.

Cases:

Frazier v. Superior Court (2002) 97 Cal.App.4th 23

The boundaries of the substantial relationship test for vicarious disqualification of counsel was examined in Frazier v. Superior Court. The trial court ordered disqualification of petitioner's Cumis counsel. At the time the insurer's counsel had covered a few depositions for Cumis counsel, a conflict of interest existed but was not known. On the basis that the court overextended the vicarious disqualification rules, the petitioner requested a writ of mandate instructing the superior court to vacate its disqualification order.

The court of appeal granted the petition, vacating the disqualification order and holding that disqualification of Cumis counsel would require the double imputation of knowledge of confidential information — first from one law firm attorney representing the insurer to another attorney in that firm, and then from the latter attorney to a completely different law firm.

California case law on vicarious disqualification did not support the double imputation in this situation.

American Airlines Inc. v. Sheppard, Mullen et al. (Mar. 8, 2002) 96 Cal.App.4th 1017

An airline company brought suit against its former attorney and his law firm for professional negligence and breach of fiduciary duty. After the law firm had terminated the representation and without the consent of the airline, the attorney acted as a Federal Rule 30(b)(6) spokesperson for an aircraft broker in a case against an aircraft manufacturer.

The trial court found that the attorney and his law firm breached their fiduciary duties to their former client.

The court of appeal affirmed, holding that the proscription against representation adverse to a former client may exist in situations where an attorney acts in a role other than as an attorney.

In addition, the court determined that the proscription applied even if the former client was not a party to the litigation.