Ethics update
By Sandra Boerio
The General Agreement on Trade in Services (GATS) — Treaties for International
Practice of Law
When the United States joined the World Trade Organization (WTO), it agreed
to abide by the General Agreement on Trade in Services (GATS). GATS is a multi-trade
agreement that is applied to all services, including legal services. Currently,
WTO nations are in negotiations to regulate the practice of law between member
nations.
The negotiations occur through a “request-offer” process. The American
Bar Association is assisting the United States Trade Representative in preparing
for this process by soliciting information about the problems or concerns encountered
by U.S. lawyers practicing law abroad so that appropriate resolutions of these
problems can be asserted during the “request” phase of the negotiations.
In addition, an “offer” issued by the trade representative will
state what practice rights the United States would be willing to implement for
foreign lawyers who practice in the U.S.
The effort of the trade representative to craft a “request” and
an “offer” that appreciates practice concerns across the country
is complicated by the fact that individual state judiciaries often possess plenary
authority in governing the practice of law within their respective jurisdictions.
For more information or to submit a written comment, contact Kristi Gaines at
gainesk@staff.abanet.org or by fax 202/662-1762.
Collins v. State of California (2004) 121 Cal.App.4th 1112 [18 Cal.Rptr.3d
112]
An expert witness was retained by the defendant in a personal injury case,
and then later listed as an expert for the plaintiff. The defense filed a motion
to disqualify the expert as a witness and the entire law firm of the plaintiff.
The trial court granted the motion.
The court of appeal held that the trial court abused its discretion in disqualifying
plaintiff’s counsel. The court of appeal reasoned that there was no evidence
that plaintiff’s counsel knowingly retained defendant’s expert or
that the expert intentionally advised both sides. Accordingly, a rebuttable
presumption that confidential information was disclosed to, or used by, plaintiff’s
counsel did not apply. The court concluded that since plaintiff’s counsel
received no privileged information from the expert and, after learning of the
problem, acted with high ethical standards by refusing to have further contact
with the expert, disqualification of counsel was not warranted.
City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17 [18 Cal.Rptr.3d
403]
In an action against the city of Santa Barbara, an attorney actively involved
in the representation of the plaintiffs left the plaintiff’s firm to work
for the city attorney’s office. Although that office immediately constructed
an ethical screen to protect any confidential information that plaintiffs may
have shared with the attorney, the plaintiffs were successful in disqualifying
the attorney and the entire city attorney’s office. The trial court granted
the disqualification based on a finding that vicarious disqualification is required
whenever an attorney “switches sides” in a pending case.
The court of appeal reversed the trial court’s order to the extent it
required vicarious disqualification of the entire office. The court held that
the individual disqualification of a non-supervisorial deputy city attorney
should not result in the automatic disqualification of an entire office. The
court explained that the city attorney’s office is not a “law firm”
within the meaning of the vicarious disqualification rule that is ordinarily
applied in cases involving only private law offices. The court also found that
the screening measures implemented were timely and effective in protecting against
disclosure of the plaintiff’s confidential information.
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