Screening may not prevent disqualification

By Diane Karpman

Karpman

Sometimes the only way to get over something is to admit it. Many of us were disappointed by the recent City and County of San Francisco v. Cobra Solutions Inc. (June 5, 2006) 38 Cal. 4th 839, 855. The California Supreme Court held that when the head of a public office has a conflict, screening would not immunize the entire office from imputed disqualification. OK, the case had “bad facts.” But the dissent maintained that the issue should be decided on a case-by-case basis because the “automatic disqualification rule arose in the context of private practice, at a time when it was relatively uncommon for attorneys to move from one firm to another.”

Dennis Herrera represented Cobra Systems in a contract dispute. Herrera was then elected city attorney for San Francisco. Later, Cobra Systems was investigated by the city attorney’s office regarding kickbacks. Herrera took measures to screen himself from the case. The court found that when the involved attorney is the head of the office, screening is insufficient to avoid disqualification. The head of an office has vast power regarding the policies and resources of the agency. Screening will not free employed lawyers from “real or perceived concerns” as to what their boss wants.

Cobra is discouraging because, for screening to become accepted in the profession, it must first be accepted in the public sector. Another concern is the premise sometimes used in relation to government offices, that “public sector lawyers do not have a financial interest in the matters on which they work. As a result they may have less, if any, incentive to breach client confidences.” City of Santa Barbara v. Superior Court (2004)122 Cal. App. 4th 17, 24. That reasoning bothers me. Consider the implications of that quote.

The Cobra opinion is also troubling because of another reason it articulates — “public perception.” It would be of great concern if the path taken in these cases depends on “public perception.” Ethics are not situational (hopefully). In City of Santa Barbara, side switching was permitted, because, among other factors, the case had not “garnered much media attention or captured the public imagination.” Ethics are not mushrooms that we grow in the dark. What kind of message does the public infer when it realizes that one standard will be applied if the case has notoriety, and another if it doesn’t?

Our rules represent the enshrinement of our ancient fiduciary duties, which are immutable. But some of the rules need to be flexible because of changes in the legal profession. It is impossible to fathom how many cases have been turned down because of the fear of disqualification. Or how many clients couldn’t hire a lawyer. Or how many lawyers were not hired by a firm.

Concern with public opinion is ubiquitous. Garnering positive media spin is probably the reason that Whole Foods is dropping the sale of live lobsters. Sometimes you wish there were other solutions that were more palatable, at least for legal ethics.

• Diane Karpman, a legal ethics expert, can be reached at 310/887-3900 or karpethics@aol.com.