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Kirk v. First Am. Title Ins. Co. - 183 Cal. App. 4th 776, 108 Cal. Rptr. 3d 620 (2010)

Rule:

Case law has not created an absolute rule of vicarious disqualification in California. Instead, the state of the law is as follows: (1) a case-by-case analysis based on the circumstances present in, and policy interests implicated by, the case; (2) tempered by the rule that vicarious disqualification should be automatic in cases of a tainted attorney possessing actual confidential information from a representation, who switches sides in the same case. Vicarious disqualification is the general rule, and it should be presumed that knowledge is imputed to all members of a tainted attorney's law firm. However, in the proper circumstances, the presumption is a rebuttable one, which can be refuted by evidence that ethical screening will effectively prevent the sharing of confidences in a particular case. 

Facts:

Four years after certain class action litigation were brought against defendants, a title insurance company and related entities, defendants' attorneys moved to another law firm. Another attorney at their new firm, who worked in a different office and in a different practice group, previously had received confidential information from counsel for plaintiff consumers about their case alleging violations of consumer protection laws. After the new firm learned of the prior contacts, it established an ethical screen around the attorney who had received the confidential information. However, a ruling from another case on which that attorney had worked was cited in two of the class actions. The Superior Court of Los Angeles County (California) disqualified defendants' law firm, and defendants appealed. 

Issue:

Did the trial court err when it concluded that automatic vicarious disqualification of the law firm was required?

Answer:

Yes

Conclusion:

The court, taking into consideration Rules Prof. Conduct, rule 3-310(E), held that the trial court erred in concluding that automatic vicarious disqualification was required. Rather, a rebuttable presumption of imputed knowledge arose, which could be rebutted by evidence of effective ethical screening. The evidence did not support a finding that the firm's ethical screening wall had been breached because the record established that the ruling cited in the two class actions had been obtained before the attorneys who represented the title insurance company and its affiliates moved to the firm.

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