Opinion
Appellant Ilene Goldberg brought suit against respondents, her former employer Warner/Chappell Music, Inc. (Warner) and her former supervisor Edward Pierson, for wrongful termination. Goldberg claimed that she was discriminated against in the terms and conditions of her employment based on her gender, and terminated in retaliation for raising complaints about gender-based discrimination. Goldberg also claimed to have been terminated in retaliation for “blowing the whistle” on illegal conduct allegedly committed by Pierson, including practicing law without a license.
*755 Goldberg moved to disqualify counsel for respondents, Mitchell Silberberg & Knupp LLP (MS&K). The ground for the motion was that six years earlier Goldberg had consulted with J. Eugene Salomon, a former partner with MS&K who had left the firm three years prior to the underlying lawsuit. The consultation involved Goldberg’s written contract with Warner. Respondents and MS&K established in opposition to the disqualification motion that the consultation had been brief and informal, and that no one else at MS&K had any knowledge concerning either the consultation or any confidential information imparted to Salomon. The trial court denied the motion to disqualify.
Goldberg contends that it is or should be the law in California, that an attorney’s presumed knowledge of a former client’s confidences should cause vicarious disqualification not just of the attorney’s present firm, but also any firm the attorney passed through after he or she gained possession of confidential information. Respondents contend that we should follow the lead of the ABA Model Rules of Professional Conduct, which permit a firm that employed the conflicted attorney in the past to undertake representation adverse to the attorney’s former client, as long as the firm can prove no current member or associate is actually possessed of confidential information concerning the client.
We agree with the trial court that an attorney’s presumed possession of confidential information concerning a former client should not automatically cause the attorney’s former firm to be vicariously disqualified where the evidence establishes that no one other than the departed attorney had any dealings with the client or obtained confidential information, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
It is undisputed that Goldberg worked as in-house counsel for Warner from 1993 until December 2002. After her termination, Goldberg retained an attorney, Peter Marx, to advise her with regard to a potential lawsuit. On January 10 and 17, 2003, Marx sent letters pertaining to settlement discussions to respondents’ attorneys, MS&K. The letters stated that Marx “ha[d] serious concerns about the propriety of [MS&K] representing [respondents] in this matter.” His concerns “derive[d] from the fact that prior to the termination of her employment with [Warner], Ms. Goldberg had professional relationships with various members of [MS&K] and indeed ha[d] worked closely with them on various matters, and also maintain[ed] friendships with certain members of [MS&K]. As such, those members of [MS&K] are to one degree or another acquainted with the circumstances concerning the termination of Ms. Goldberg’s employment, i.e., they are privy to information which certainly created the impression of impropriety, at the very least.” Marx also referred to the fact that Goldberg had submitted a screenplay she had *756 coauthored to MS&K partner David Steinberg. There was no reference to Goldberg being a former client of the firm.
In August 2003, the parties agreed to mediation. In a letter to MS&K, Goldberg’s new counsel, Greenberg Glusker Fields Claman Machtinger & Kinsella, stated: “[Goldberg] expressly reserves any and all rights she may have to disqualify your firm. As I indicated to you, I am going to consider providing you with some information which may impact your decision to continue as counsel for [respondents]. In any event, your participation in the mediation will not and shall not be used in any subsequent proceeding to suggest that Ms. Goldberg has waived her rights or otherwise acquiesced to your firm’s participation.”
In November 2003, the mediation having failed, Goldberg filed her complaint against respondents. The complaint included claims for violation of the whistleblower statute, discrimination based on gender, retaliatory termination, wrongful termination in violation of public policy, intentional infliction of emotional distress, and violation of salary provisions of the Labor Code. There was no contract claim asserted.
MS&K filed an answer to the complaint on behalf of respondents in December 2003.
Motion to Disqualify
Goldberg formally moved to disqualify MS&K on December 10, 2003. In her moving papers, she presented evidence that in 1997, while still employed at Warner, she was given a written employment agreement to sign. She asked Salomon, then a partner with MS&K, to advise her with respect to the agreement. She met with Salomon for an hour and a half on May 9, 1997, to go over the terms of the agreement. She purportedly “disclosed confidential information to him including the nature and term of [her] employment agreement, [her] compensation and benefits, disability, termination by [Warner], [her] ability to retain, disclose, and use confidential/privileged information concerning [her] employment relationship with [Warner], scripts and other literary works created by [her], the effect of a change in control of [Warner], expiration of the employment agreement, and [Warner’s] obligations under state and federal law.” She also had “other conversations and correspondence with [Salomon] relating to his advice about the terms and conditions of [her] employment agreement.” On July 29, 1997, she sent him a letter and draft of a proposed employment agreement, and promised to send *757 the final agreement “for [his] files.” She asked him to send her a bill for his advice, but he refused to do so. 1
Subsequently, Goldberg retained MS&K to work on various matters for Warner, and she “did not have an objection to [MS&K’s] representation of [Warner] in matters that did not conflict with [MS&K’s] prior representation of [her].”
Opposition
Respondents presented evidence in their opposition that in April 1997, one month prior to Goldberg’s purported consultation with Salomon, MS&K began legal work on a copyright matter for Warner. A formal retention letter between MS&K and Warner was signed on May 2, 1997.
The executive director of MS&K stated in a declaration that there was no record in any of MS&K’s files of Goldberg ever having been a client of the firm, and that the policy of the firm was to execute a formal, written engagement letter before taking on legal representation.
Adam Levin, the MS&K attorney who was responsible for the Goldberg litigation, stated he had been involved with the matter since January 2003, and that at no time prior to the mediation “did any of Goldberg’s lawyers assert that MS&K and, in particular, [Salomon], had represented Goldberg in her individual capacity” or otherwise mention Salomon’s name. Discussions of the propriety of MS&K’s representation of respondents centered on the possibility that Goldberg’s personal and professional relationships with other attorneys at the firm created a conflict. In a letter to Marx dated January 21, 2003, Levin stated: “[Y]ou raise purported ‘concerns’ about this firm’s representation of [Warner] adverse to Ms. Goldberg. As we previously discussed, your concerns are wholly unfounded in that this firm has never represented Ms. Goldberg personally. Our past dealings with Ms. Goldberg solely have been in connection with our representation of [Warner] (for whom she sometimes was our client contact), as well as other clients .... Accordingly, there is no restriction (ethical, legal or otherwise) on our representation of [Warner] adverse to Ms. Goldberg.” On October 30, 2003, at the mediation, Levin “learned for the first time that Goldberg was contending that she had been provided personal legal advice by . . . Salomon.”
Salomon stated in a declaration that he practiced law at MS&K from October 1987 through October 2000, when he moved to another firm. He *758 denied that he had been retained by Goldberg to represent her in her contract negotiations with Warner. Instead, Goldberg “told [Salomon] she was going to represent herself in negotiations over the contract, but asked if [Salomon] would talk to her about these agreements generally to get a sense of how [Warner] lawyers dealt with the contract’s various provisions.” He told Goldberg he “would be glad to talk to her about what she could expect in the course of her negotiations.” They primarily discussed “what she might expect with respect to the boilerplate issues.” Salomon “never discussed with any other lawyer at [MS&K] what was said in [his] conversation with Ms. Goldberg.”
Prior to the hearing on the motion to disqualify, Goldberg sought to submit handwritten notes made at the meeting with Salomon for “in camera” review. These notes apparently somehow made it into the public court file.
Trial Court’s Ruling
The court denied the motion to disqualify. At the hearing, the court stated that the only potential basis for disqualification was Goldberg’s contact with Salomon, not her personal and professional relationships with other MS&K attorneys. The court concluded that there was an attorney-client relationship between Goldberg and Salomon even though Salomon appeared to be helping her “as a friend.” The court agreed that if Salomon were still with MS&K, the firm would be disqualified. However, because Salomon had left the firm, there was no need for vicarious disqualification.
In its order, the court specifically found: “The evidence is undisputed that [MS&K] and Salomon never opened a file for Ms. Goldberg. They never billed her. There are no notes or records in their files about the meeting and no documents were prepared. No telephone calls were made. It was simply a meeting late one afternoon where Ms. Goldberg and Mr. Salomon sat down and discussed the meaning of the employment contract she was being offered and what provisions she might request. [1] ... [][].. . There is no evidence that Mr. Salomon talked to anyone about this matter when he was with [MS&K]. And more importantly, he had left the firm approximately three years before this matter began. There is no fear of him talking about the case in the lunch room, or having his files seen by other members of the firm, as he is no longer there.”
Goldberg filed a petition for writ of mandate for review of the order. By order dated March 24, 2004, the petition was denied, with one dissent. Goldberg noticed an appeal.
*759 DISCUSSION
Rule 3-310(E) of the Rules of Professional Conduct provides that an attorney “shall not, without the informed written consent of the client or former client, accept employment adverse to the client, or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.” There is no question that an attorney can and should be disqualified for representing a party adverse to a former client where the attorney possesses confidential information that could be helpful to the new client and hurtful to the old. (See, e.g.,
Henriksen v. Great American Savings & Loan
(1992)
The courts do not generally inquire into whether the attorney actually possesses confidential information.
(Adams v. Aerojet-General Corp.
(2001)
In addition, “[i]t is now firmly established that where the attorney is disqualified from representation due to an ethical conflict, the disqualification extends to the entire firm.”
(Adams
v.
Aerojet-General Corp., supra,
There is, however, a recognized “limited exception to this conclusive presumption in the rare instance where the lawyer can show that there was no
opportunity
for confidential information to be divulged.”
(City National Bank v. Adams, supra,
96 Cal.App.4th at pp. 327-328; accord,
American Airlines, Inc v. Sheppard, Mullin, Richter & Hampton
(2002)
This limited exception was applied in
Adams v. Aerojet-General Corp., supra,
On appeal, the court acknowledged that “[i]f [the attorney] himself had been personally involved with the [Holliman] firm’s work on Aerojet matters during his tenure with the firm in the 1980’s, this appeal would be easily resolved. [The Holliman firm’s] former representation of Aerojet clearly has a substantial relationship to the present lawsuit under the
[H. F] Ahmanson [& Co.
v.
Salomon Brothers, Inc., supra,
229 Cal.App.3d. 1445, substantial relationship] test: factual issues are similar if not identical (disposal of waste and chemical contamination in and around the Aerojet site); legal issues are related (toxic tort liability and the duty to warn the public); and [the attorney’s hypothetical] prior work on the case would have placed him in a position to be exposed to confidential information belonging to Aerojet.”
(Adams v. Aerojet-General Corp., supra,
*761 Because, however, “there [was] no indication of [the attorney’s] personal involvement in Aerojet matters, nor any direct evidence that he was exposed to client secrets during the time his former firm rendered services to Aerojet,” the court decided not to extend the doctrine of imputed knowledge and vicarious disqualification to the new firm. (Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at pp. 1332-1333.) The court believed the “case d[id] not present a standard application of the imputed knowledge doctrine” and that “the [trial] court applied the concept in reverse: instead of imputation from attorney to the remainder of the firm, the court here ruled that, once a connection was shown between the former firm’s representation and the issues involved in the current lawsuit, the knowledge acquired by the former firm was ‘imputed’ back to the attorney, mandating his automatic disqualification even after his departure from the firm, without inquiry as to whether the attorney was reasonably likely to have obtained confidential information. [][] To burden an attorney with . . . presumptive knowledge based solely on his former membership in a law firm which represented the former client, . . . would require a significant extension of the doctrine of imputed knowledge beyond that recognized by any existing case law.” (Id. at pp. 1333-1334.)
The court explained why it distinguished the situation before it from the situation where the attorney who sought to undertake adverse representation was still working with the attorneys who had acquired the former client’s confidential information: “ ‘No amount of assurances or screening procedures, no “cone of silence,” could ever convince the opposing party that the confidences would not be used to its disadvantage. ... No one could have confidence in the integrity of a legal process in which this is permitted to occur without the parties’ consent.’ [Citation.] . . . [][] Once an attorney departs the firm, however, a blanket rule to prevent future breaches of confidentiality is not necessary because the departed attorney no longer has presumptive access to the secrets possessed by the former firm. The court need no longer rely on the fiction of imputed knowledge to safeguard client confidentiality. Instead, the court may undertake a dispassionate assessment of whether and to what extent the attorney, during his tenure with the former firm, was reasonably likely to have obtained confidential information material to the current lawsuit.” (Adams v. Aerojet-General Corp., supra, 86 Cal.App.4th at pp. 1334-1335.)
The court found further support for its decision in the realities of modem law firm practice: “Disqualification based on a conclusive presumption of imputed knowledge derived from a lawyer’s past association with a law firm is out of touch with the present day practice of law. Gone are the days when attorneys (like star athletes) typically stay with one organization throughout their entire careers. . . . We have seen the dawn of the era of the ‘mega-firm.’ Large law firms (like banks) are becoming ever larger, opening branch offices nationwide or internationally, and merging with other large firms. Individual
*762
attorneys today can work for a law firm and not even know, let alone have contact with, members of the same firm working in a different department of the same firm across the hall or a different branch across the globe.”
(Adams
v.
Aerojet-General Corp., supra,
From this, the court concluded that “a rule which disqualifies an attorney based on imputed knowledge derived solely from his membership in the former firm and without inquiry into his actual exposure to the former client’s secrets sweeps with too broad a brush, is inconsistent with the language and core purpose of rule 3-310(E), and unnecessarily restricts both the Ghent’s right to chosen counsel and the attorney’s freedom of association. It also clashes with the principle that applying the remedy of disqualification ' “when there is no realistic chance that confidences were disclosed [to counsel] would go far beyond the purpose” of the substantial relationship test.’ ”
(Adams v. Aerojet-General Corp., supra,
We agree with the court in
Adams v. Aerojet-General Corp., supra,
Goldberg cites
People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc.
(1999)
Disner was of counsel to the firm at the time of the disqualification motion and had no plans to leave his position, so the primary issue was whether the relationship between the tainted attorney and the firm was sufficiently close to justify disqualification of the entire firm. The record showed “without contradiction that Disner received material confidential information concerning [the] claims against Mobil.”
(SpeeDee Oil, supra,
In
Elan,
the motion to disqualify arose in a patent dispute between two corporations, Elan and Cygnus. Elan sought to replace its original counsel with the Irell firm. However, Irell had in the past been merged with a Menlo Park firm that was doing patent work for Cygnus. A few years earlier, the two firms “de-merged” and almost all of the Menlo Park personnel, including the partner handling the Cygnus work, became affiliated with another firm. Irell sought to show that the de-merger removed the taint, but Cygnus was able to show that four or five attorneys still with the firm had worked on Cygnus matters, and two—Cost and Rothman—had worked briefly on a matter seemingly directly related to the Elan dispute. The court concluded that “[w]hile there is a reasonable probability that confidences were disclosed to Cost and Rothman, the presumption of a substantial relationship is rebutted by declarations by Cost and Rothman that they received no confidential information regarding Cygnus’ patent . . . .”
(Elan, supra,
The district court in
Elan
cited
Rosenfeld Construction Co. v. Superior Court, supra,
Although the facts in
Elan
are closer to our situation than those in
SpeeDee Oil
or
Rosenfeld,
there are significant distinctions. The consultation between Goldberg and Salomon was informal and brief, and apparently took place a few days
after
Warner officially became a client of MS&K. (See
In re Marriage of Zimmerman
(1993)
More importantly, we believe the district court misconstrued California law. If an attorney worked on a matter “substantially related” to the matter in which he or she seeks to represent a party adverse to a former client, the presumption is conclusive that the
attorney
is possessed of confidential information that would impact the present matter. Where tainted attorneys and nontainted attorneys are working together at the same firm, there is not so much a conclusive presumption that confidential information has passed as a pragmatic recognition that the confidential information will work its way to the nontainted attorneys at some point. When, however, the relationship between the tainted attorneys and nontainted attorneys is in the past, there is no need to “rely on the fiction of imputed knowledge to safeguard client confidentiality” and opportunity exists for a “dispassionate assessment” of whether confidential information was actually exchanged.
(Adams v. Aerojet-General Corp., supra,
Our conclusion that the trial court analyzed the matter correctly is also in line with the ABA Model Rules of Professional Conduct, which California courts may consult when a matter is not addressed by the California Rules. (See, e.g.,
Flatt v. Superior Court, supra, 9
Cal.4th at pp. 282-283;
Ojeda v. Sharp Cabrillo Hospital
(1992)
DISPOSITION
The order is affirmed.
Hastings, Acting R J., and Grimes, J., * concurred.
Notes
Goldberg’s declaration also contained discussion other professional and personal relationships with other attorneys who worked at MS&K, but none of these relationships are relevant to the current appeal.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.