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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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