237 Cal. App. 4th 1434
Cal. Ct. App.2015Background
- Castaneda sued his former employer (Perrin Bernard Supowitz, Inc.) for wrongful termination and FEHA claims in Feb 2013.
- The trial court ordered a mandatory CRASH settlement conference (court-run, panel of one judge + two volunteer attorneys) in Jan 2014.
- Elsa Bañuelos, a Ballard Rosenberg Golper & Savitt attorney, served as one volunteer settlement officer; plaintiff’s counsel asserts he disclosed confidential trial strategy and settlement positions in ex parte segments.
- About six months later Ballard partner Linda Savitt substituted in to represent the employer; plaintiff moved to disqualify the Ballard firm because of Bañuelos’s prior role.
- The trial court presumed Bañuelos received confidences but denied vicarious disqualification based on an internal screening wall; the Court of Appeal granted writ relief and remanded for factual finding on whether Bañuelos received ex parte/confidential communications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a law firm must be vicariously disqualified when a firm attorney served as a court-ordered settlement officer and received confidential ex parte information from an opposing party | Bañuelos, as a settlement officer, received confidences in ex parte segments; Cho requires automatic vicarious disqualification of the firm and screening cannot cure the appearance or reality of misuse | Screening (ethical wall) prevents any sharing; Bañuelos didn’t receive confidences or, if she did, she never shared them and the firm’s wall suffices | If an attorney serving in a judicial/neutral settlement role received ex parte confidences, the firm must be disqualified; screening cannot overcome that presumption — remand to determine whether ex parte/confidential communications occurred |
| Whether Cho’s rule (automatic disqualification when a judicial officer privy to settlement confidences joins/works for opposing firm) extends to volunteer attorneys who serve as settlement officers | Cho applies because the key is the judicial/neutral role and the exchange of confidences, not the holder’s formal title | Distinguishes Cho: Bañuelos was an attorney volunteer (not a judge), brief participation, no demonstrated misconduct; Cho is outdated given later doctrinal developments | Cho applies to attorneys acting as settlement officers in court-sponsored programs; the judge/attorney distinction is immaterial when the neutral receives ex parte confidences |
Key Cases Cited
- Cho v. Superior Court, 39 Cal. App. 4th 113 (Cal. Ct. App. 1995) (automatic vicarious disqualification where a judicial officer presiding over settlement conferences received ex parte confidences)
- SpeeDee Oil Change Systems, Inc. v. Superior Court, 20 Cal. 4th 1135 (Cal. 1999) (presumption that firm members share access to confidences; rule of review for disqualification)
- Flatt v. Superior Court, 9 Cal. 4th 275 (Cal. 1994) (dicta regarding potential flexibility in vicarious disqualification)
- Kirk v. First American Title Insurance Co., 183 Cal. App. 4th 776 (Cal. Ct. App. 2010) (case-by-case approach with an exception for tainted attorneys possessing material confidences)
- Henriksen v. Great American Savings & Loan, 11 Cal. App. 4th 109 (Cal. Ct. App. 1992) (imputation of conflict when an attorney switches sides in the same case)
- In re County of Los Angeles, 223 F.3d 990 (9th Cir. 2000) (allowed screening in related-case context; distinguished by this Court)