Attorney Disqualification Case Law in California
In H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, the Court, formulated the standard for disqualification as follows:
"the attorney's possession of confidential information will be presumed only when ' "a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney . . . .' " Under this formulation of the test, the courts focus less on the meaning of the words 'substantial' and 'relationship' and look instead at the practical consequences of the attorney's representation of the former client. The courts ask whether confidential information material to the current dispute would normally have been imparted to the attorney by virtue of the nature of the former representation."
In Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, this standard was refined.
"Whether an attorney should be disqualified in a successive representation case turns on two variables: (1) the relationship between the legal problem involved in the former representation and the legal problem involved in the current representation, and (2) the relationship between the attorney and the former client with respect to the legal problem involved in the former representation. We emphasize, however, the significance of the latter factor in the application of the Ahmanson formula. If the relationship between the attorney and the former client is shown to have been direct-that is, where the lawyer was personally involved in providing legal advice and services to the former client-then it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship. As a result, disqualification will depend upon the strength of the similarities between the legal problem involved in the former representation and the legal problem involved in the current representation. This is so because a direct attorney-client relationship is inherently one during which confidential information 'would normally have been imparted to the attorney by virtue of the nature of that sort of former representation,' and therefore it will be conclusively presumed that the attorney acquired confidential information relevant to the current representation if it is congruent with the former representation." (See also Faughn v. Perez (Dec. 5, 2006) 06 C.D.O.S. 11132, 11134 substantial relationship test to be applied "where the attorney was involved personally and directly in providing legal advice and services to the former client" and "modified substantial relationship test" applied "where the former attorney-client relationship was peripheral or attenuated," citing Jessen, supra, 111 Cal.App.4th at p. 710.)
In Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 67-69, although finding no disqualifying conflict in that case, the court reiterated:
"The subject of a current representation is substantially related to the subject of a prior representation only if the issues are sufficiently similar to support a reasonable inference that the attorney in the course of the prior representation was likely to have obtained confidential information material to the current representation. . . . . . . Jessen held, 'successive representations will be "substantially related" when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues. ' (Jessen, supra, 111 Cal.App.4th at p. 713.)
. . . To create a conflict requiring disqualification, Jessen mandates that the information acquired during the first representation by 'material' to the second; that is, it must be found to be directly at issue in, or have some critical importance to, the second representation. (Jessen, supra, 111 Cal.App.4th at pp. 712-713 . . . .)"