|A new Supreme Court decision on the issue of attorney disqualification in
"of counsel" relationships, People v. SpeeDee Oil, July 17, 1999, No. S058639,
upholds traditional theories regarding the concept. "Of counsel" is a type of
"close, personal continuous and regular" relationship between a lawyer and a
firm. It can be part time, a potential partner on probationary status, or any other sort
of affiliate relationship.
The court justifiably determined that lawyers who meet at water
coolers, coffee stations, and down the hall need to kibitz. Since all are bound by the
same duty of confidences (Business & Professions Code §6068(e)), the client's
interests are served when ideas and strategies are brainstormed or bounced off one
another. In this particular case, the "of counsel" attorney was also physically
located within the firm's office and shared a telephone receptionist.
The firm and the "of counsel" attorney were simultaneously approached by
opposing prospective clients SpeeDee Oil and Mobil, almost on the same day. During the
initial discussions, which were held to be substantive as opposed to mere "initial or
peripheral contacts," confidential information was transmitted to both lawyers by the
prospective clients. In essence, the giant amoeba termed "the firm"
simultaneously represented litigation adversaries, which is per se prohibited.
Remember that "even the briefest conversation" can result in "the
disclosure of confidences." California has traditionally maintained that this can
occur during simple interview sessions with prospective clients, leading to the creation
of dual fiduciary duties of loyalty and confidentiality. Retention is not necessary.
SpeeDee Oil maintains that this is particularly true if the information is communicated
But in Supreme Court cases, sometimes what is written between the lines is provocative.
The court seems to imply that the use of "ethical screens," which in California
is generally restricted to former government employees, could rebut a presumption of
shared confidences. "The record provides no basis for considering whether an ethical
screen, or other means of protecting Mobil's confidences, could serve the same
prophylactic purpose as disqualification." SpeeDee Oil at p. 23.
This cryptic nod should cause all lawyers maintaining ethical screens to sigh in
relief, since it represents a hint that screens might defeat those pesky disqualification
Interestingly, in two footnotes, the court refers to "poisoning the well,"
i.e., contacting several attorneys in a specialized area, conveying just enough
information to justify their disqualification in future litigation, thereby depriving the
opposition of competent representation. The court implies that this and other
"tactical abuses," such as delay in bringing the motion, can be considered in
determining disqualification. The court states that in SpeeDee Oil, the client had a
genuine interest in retaining the lawyer, and that in the Los Angeles area, there are so
many competent lawyers that such a practice would not have been successful.
Diane Karpman specializes in lawyer law. She
can be reached at 310/887-3900 or firstname.lastname@example.org.