Playbook theory isn’t just for football coaches

By Diane Karpman

Diane Karpman

Some conflicts are not prohibited by Rule of Professional Conduct 3-310 (Conflicts). For instance, all lawyers could have conflicts in fee negotiations. Since this is common to all lawyers, it is not the type of conflict prohibited by the rules.

If a Motion for Disqualification is granted, it removes a specific lawyer (or firm) and eliminates the problems created by that lawyer’s participation in a case. Such a motion can be granted based on “playbook” theory. “Playbook” means a lawyer knows how a former client thinks, and the exact location of their hot button. The lawyer knows the former client’s litigation strategy, because of past exposure to confidential information. If adversaries could hire an opponent’s former lawyer (and gain playbook information), they would know when the opponent will “hold ‘em,” or “fold ‘em.”

Playbook is frightening, because it doesn’t have any defined boundaries. When you change jobs or clients, you bring knowledge of former clients with you. Lobotomies are not available for specific information. Everyone is a combination of memories, which gives us all the benefit of experience.

In Farris v. Fireman’s Fund (2004) 119 Cal. App. 4th 671, the court twice insisted it was not relying upon “playbook” to disqualify a lawyer. An attorney, who was employed by a carrier as coverage counsel on bad faith cases, crossed over and began representing plaintiffs against his former employer. He was disqualified on the second motion (sometimes it takes a couple), because he had helped establish the carrier’s practices and procedures, and his knowledge was directly at issue in the litigation. A taint caused by knowledge can be cured by passage of time, changes in corporate structure, or management turnover. The court maintained that disqualification was not based on playbook, even though it walked like a duck and talked like a duck.

“Ducks” are a hot topic in conflicts this year. U.S. Supreme Court Justice Antonin Scalia (in response to a motion to recuse in the controversial energy task force case) insisted that his duck hunting experience with Vice President Dick Cheney did not prejudice his ability to render an impartial judgment. In his 20-page response, Justice Scalia insisted that since he and Cheney did not share a room, a private meal, a duck hunting blind or a boat, the motion was not justified. That makes you wonder what combination of the criteria would have hit the jackpot. Some-times, even if you are a Supreme Court justice, you just can’t win. If Justice Scalia’s response to the motion had been a curt “no,” he still would have been criticized.

Becoming a judicial officer does not mean that you are renouncing normal human relationships. In Washington, D.C., there is a monthly poker game that includes Chief Justice William Rehnquist, among other notables. When asked if this would require his recusal from cases involving fellow players, Justice Rehnquist responded in the negative. I need to learn how to play poker, because if Ben Affleck and Justice Rehnquist play, then I need to be ready. Also, just what is a duck blind?

• Ethics expert Diane Karpman can be reached at karpethics@aol.com or 310-887-3900.