Brand v. 20th Century Ins. Co. 21st Century Ins. Co

In Brand v. 20th Century Ins. Co./21st Century Ins. Co. (2004) 124 Cal.App.4th 594, Attorney Zalma represented 21st Century Insurance Company (the insurer) for three years, providing coverage opinions and defending the insurer in a variety of coverage disputes. (Id. at p. 599.) Twelve years later, an insured filed suit against the insurer for breach of contract and bad faith arising out of her claim for water damage to her home. She designated Zalma as her expert to testify on the issue of the insurer's handling of her claims. (Id. at p. 600.) The trial court denied the insurer's motion to disqualify, indicating that a substantial relationship could not be established based on the amount of time between the two engagements. (Brand, supra, 124 Cal.App.4th at p. 601.) The Court of Appeal reversed. (Id. at p. 605.) The court noted that in his prior representation of the insurer Zalma had rendered coverage opinions on a variety of claims, including for moisture intrusion, and had defended the insurer in actions by policyholders seeking coverage and/or alleging bad faith. (Id. at p. 606.) Therefore, "from both a factual and legal perspective, the two engagements must be deemed substantially related, presenting a substantial risk "'that representation of the present client will involve the use of information acquired in the course of representing the former client . . . ."'Since, in these circumstances, 'confidences could have been exchanged between the lawyer and the client, courts will conclusively presume they were exchanged, and disqualification will be required.' " (Id. at pp. 606-607.)