Opinion
NOT TO BE PUBLISHED
Sonoma County, Super. Ct. No. SCV238861.
Jones, P.J.
County of Sonoma (County) appeals the order denying its motion to disqualify attorney Gail Flatt from representing Tiffany Cooper, a County employee who has filed a disability employment discrimination action against the County. The trial court also denied the County’s request for certain protective orders. County’s primary claim of error is that Flatt should be disqualified because she received, reviewed and retained confidential, privileged and protected County documents and had ex parte communications with County’s managing agent, Linda Jenkins, while Jenkins was represented by County’s counsel in the action Flatt brought on behalf of Cooper, an existing client, against County.
BACKGROUND
At all relevant times Linda Jenkins was employed by County as a human resources manager and director of its equal employment opportunity/Americans with Disabilities Act Programs (EEO/ADA programs), in charge of handling claims of discrimination by County employees. Respondent Cooper was employed as a legal processor in County’s probation department.
Cooper Complaint for Disability Discrimination
On June 20, 2006, Cooper, represented by Flatt, brought an action against County for disability employment discrimination. Her complaint contains the following allegations:
Cooper uses a wheelchair because she was born with spina bifida. When she returned to work from a vacation in late March 2005 she requested additional time off because she needed some diagnostic tests that might reveal the need for surgery. Her supervisor “made it clear” that Cooper should not return to work because of her disability. Cooper underwent surgery and was on medical leave until June 20, 2005. On her return, her supervisor subjected her to a “higher level of scrutiny” because of her disability.
On August 5, 2005, following a meeting with various County personnel, including Jenkins, Cooper was placed on paid administrative leave due to reported seizures at work. In October 2005, Cooper met with Jenkins to discuss an alternate position in a different division; Jenkins gave her the name of the division’s supervisor and suggested Cooper telephone the supervisor about the job. In November 2005, at County’s direction, Cooper underwent a “Fit for Duty” examination at the Kaiser Permanente Department of Occupational Medicine. In December 2005, Cooper’s own neurosurgeon released her for work with no restrictions. County refused to allow her to return to work and insisted she undergo a neuropsychiatric Fit for Duty examination with County’s designated evaluator. Cooper’s attorney questioned the need for the second Fit for Duty examination.
In January 2006, County removed Cooper from paid administrative leave because the Kaiser physician who examined her in November 2005 determined she was unable to work due to suspected cognitive impairment as reported by her supervisor. She was placed on unpaid medical leave.
At the February 1, 2006 County-ordered neuropsychiatric examination, the designated evaluator required her to complete a questionnaire that included impermissible non-job related inquiries before he could perform the examination. Cooper left his office without undergoing the examination because he refused to direct her to an accessible restroom before she completed the questionnaire.
The rescheduled neuropsychiatric examination occurred March 1, 2006, but County and its designated evaluator insisted until the time of the examiniation that Cooper provide medical and social information about herself and her family that was not job-related or consistent with business necessity.
Motion to Disqualify
On August 4, 2006, County filed a motion to disqualify Flatt from representing Cooper. Its motion was made on the grounds that Flatt and her law firm had received County documents and information protected by the attorney-client privilege and attorney work product doctrine regarding matters at issue in the Cooper litigation; Flatt and her firm had received privileged and confidential documents regarding disability discrimination claims by other County employees; Flatt had engaged in ex parte communications regarding disability issues with Jenkins without consent of County’s counsel; and irreparable injury would result to County if Flatt and her firm did not return the privileged documents to County and keep confidential the information they learned from Jenkins and the privileged documents. It supported its motion with the declaration of its attorney, Lisa Ann Hilario, an internal complaint for discrimination brought by Jenkins, the declaration of David Tyra, who was engaged by County to investigate Jenkins’s internal complaint, and Tyra’s final investigation report.
On August 1, 2006, the trial court granted County’s ex parte application for an order that its motion to disqualify attorney Flatt, related orders, and all moving and opposing papers and exhibits for the motion be placed under seal. Pursuant to the parties’ stipulation at oral argument, the record on appeal need no longer remain under seal except for the one volume of clerk’s transcript referred to as the “Lodged Documents.”
a. Hilario Declaration
Hilario declared: On August 20, 2003, attorney Flatt, on behalf of Cooper, wrote to Jenkins regarding Cooper’s request for reasonable accommodation.
On March 29, 2006, Cooper filed a complaint with the DFEH alleging that County discriminated against her because she has spina bifida and uses a wheelchair, harassed her because of her disability, and failed to accommodate her disability. The DFEH issued a right to sue letter.
Jenkins was County’s EEO/ADA human resources manager, and was County’s representative in connection with Cooper’s request for accommodation. On behalf of County, Jenkins received Cooper’s first request for accommodation, made in June 2003. Jenkins communicated with County counsel and received legal advice regarding County’s response to the request for accommodation. She communicated with Cooper’s supervisor regarding Cooper’s request for accommodation. She retained an independent physician to speak with Cooper’s physicians and to perform a Fit for Duty examination. She corresponded with Flatt from August 20, 2003 until June 2006 regarding County’s position and response to Cooper’s claim. She attended at least two interactive process meetings with Cooper, Cooper’s supervisor and Cooper’s parents. She attended at least one interactive process meeting with Flatt. She communicated and participated in several meetings with County and outside counsel to discuss Cooper’s claim, lawsuit, and preparation of County’s handling thereof. She provided information to outside counsel in response to counsel’s request for information regarding matters at issue in Cooper’s lawsuit. Through these communications and meetings, Jenkins received County’s attorney work product and learned County’s attorneys’ legal opinions, mental impressions and strategies for handling Cooper’s claim and lawsuit.
In April 2006, Jenkins filed an internal complaint against County alleging discrimination based on her own disability. Jenkins retained Flatt to represent her in connection with this internal complaint. At the time Jenkins filed her internal complaint, Flatt was already representing Cooper in her disability claim against County. The supporting exhibits attached to Jenkins’s internal complaint included typed and handwritten notes subject to the attorney-client privilege, attorney work product, and internal emails regarding County’s handling of disability claims made by County employees. At least one of these employees is represented by Flatt.
Hilario reviewed Jenkins’s internal complaint, the attachments thereto, and the documents Jenkins provided to David Tyra, hired by County to investigate Jenkins’s complaint. The attached documents included confidential correspondence exchanged solely between County employees and County and outside counsel providing employment law counsel to County. The privileged attorney-client communications attached to Jenkins’s internal complaint and the documents she provided Tyra include privileged attorney-client communications and attorney work product regarding County’s policies and procedures for handling disability discrimination claims, County’s internal meetings with County counsel and County management regarding development of County’s EEO/ADA policies, and writings between County employees and County counsel regarding legal issues and opinions relevant to County’s handling of employee disability claims. Some of the documents related to County’s handling of Cooper’s disability discrimination claim and County’s handling of disability claims by other County employees. Many of the documents attached to Jenkins’s internal complaint and those she provided to Tyra are labeled “attorney-client privilege,” “confidential,” or “confidential correspondence.”
The documents Jenkins submitted in support of her internal complaint and the additional documents she provided Tyra include communications that reflect the mental impressions, opinions and conclusions of County and outside counsel regarding County’s handling of disability claims, including Cooper’s claim.
On January 24, 2006, Flatt filed a disability discrimination action against County on behalf of employee Diane Pizza. On June 21, 2006, Hilario asked Flatt to withdraw as counsel for Pizza and return all privileged documents she had received from Jenkins. On June 23, Flatt responded, denying that any privileges or confidences had been breached. On June 27, 2006, Hilario spoke with Flatt in person about her concurrent representation of Jenkins and Pizza and the privileged documents attached to Jenkins’s internal complaint. Flatt told Hilario that she had reviewed all the documents Jenkins had provided to her. In response to Hilario’s comment that several documents were clearly marked “attorney-client privilege,” Flatt stated that she had to review the documents to know what was there. Flatt never informed County that she possessed the privileged materials. When Hilario suggested she should have stopped reviewing the documents when she saw the first document marked “attorney-client privilege,” Flatt responded that there “wasn’t anything in there that I didn’t already know.”
In June 2006, County filed a motion to disqualify Flatt from representing employee Pizza. As a result of that motion, Flatt lodged all documents she received from Jenkins with the court under seal pending a decision on that motion. None of the documents has been returned to County. Flatt did not provide copies of the lodged documents to County’s counsel, so County does not know what documents were lodged under seal.
As we discuss post, other evidence suggests the County had access to and would have known the contents of the documents.
On July 11, 2006, Flatt notified Hilario that she had withdrawn from representing Jenkins on June 27, as a result of County’s motion to disqualify her from representing Pizza in Pizza’s litigation against County. On July 13, Hilario requested Flatt to withdraw from representing Cooper and to return all privileged documents she had received from Jenkins. Flatt did not respond.
When Jenkins retained Flatt in April 2006, both knew that Flatt had been representing Cooper in a disability discrimination claim against County since at least August 2003 and that Cooper had filed a DFEH complaint in March 2006. Flatt was also aware of Jenkins’s high-level management role in County’s EEO/ADA programs and specifically Jenkins’s personal involvement in Cooper’s claims of disability discrimination. Flatt has also been aware since at least 2003 that Jenkins is County’s only manager for its EEO/ADA programs and that Jenkins is a key participant in almost all County employee requests for accommodation. Over the past several years, Jenkins has represented County’s interests regarding disability issues in numerous claims when Flatt represented a County employee. Jenkins and Flatt have been at opposite ends of the table in several interactive process meetings between County and County employees. Flatt knew Jenkins’s high level management role before she engaged in ex parte communications with her regarding County’s disability policies.
In April 2006, Flatt received numerous privileged County documents from Jenkins when Jenkins filed her internal complaint. The documents were clearly labeled “attorney-client privilege” on their face. Flatt knew that Jenkins did not have authority to waive County’s attorney-client privilege or attorney work production protection.
Jenkins is sole manager of County’s equal employment and disability programs. She is supervised by the human resources director, who reports to the civil service commission. Jenkins plays a key management role at County. She receives requests for accommodation from employees, responds to employees’ requests on behalf of County, investigates and responds to disability discrimination claims on County’s behalf, meets with County and outside counsel to obtain their legal advice regarding County’s response to accommodation requests by employees and their attorneys, makes recommendations to County department heads about how employees’ requests for accommodation should be handled and actively works with County and outside counsel to prepare County’s defense to disability discrimination lawsuits.
In connection with EEO/ADA matters, Jenkins’s job duties include responding to questions and providing comments and recommendations about County’s strategy; communicating and working with County’s counsel and risk management; meeting with department heads, county counsel and risk management to strategize; meeting with the EEO investigator to review the investigation plan for discrimination cases to be triaged with County and risk management; meeting with employees, department heads, County counsel and risk management about employees’ requests for reasonable accommodation; coordinating with physicians; advising department heads; attending internal case meetings; and updating key County policies, including County’s EEO policy, complaint procedure, and reasonable accommodation guidelines.
Jenkins’s duties in handling an employee’s request for accommodation may change depending on the circumstances. Her responsibilities as manager of County’s EEO/ADA programs are as follows: The County employee submits a request for accommodation directly to Jenkins, who then contacts the employee and employee’s department head to discuss the request. Jenkins corresponds with the employee and, if the employee is represented by counsel, the employee’s counsel. She personally attends and leads an interactive process meeting with the employee and employee’s counsel. At the interactive process meeting the employee’s disability, the work restriction imposed by the employee’s physician, possible accommodation and County’s response to the employee’s request are discussed. If County believes the employee may not be disabled or not need accommodation and an independent medical opinion is needed, Jenkins sends the employee’s request and medical information to Kaiser Permanente for review. If it is clear that the employee needs accommodation, Jenkins meets with the employee and employee’s attorney to engage in an interactive discussion regarding the reasonable accommodations that might permit the employee to perform the essential functions of the job. Throughout this process Jenkins works closely with County counsel to obtain legal advice regarding County’s legal duties under state and federal disability laws. She communicates with County and outside counsel about counsel’s legal analysis and opinions regarding disability issues.
When an employee files a DFEH complaint, Jenkins investigates, or directs the investigation of the claims. Her investigation includes internal interviews of department heads, managers and County employees who work with the claimant, meeting and communicating with County counsel regarding County’s response to the DFEH complaint, reporting the results of the investigation to DFEH and working with County counsel to prepare County’s formal response to the complaint. If DFEH investigates the claim further, Jenkins attends and facilitates the DFEH interviews with County employees. If litigation is filed against County, Jenkins works closely with County risk management, County counsel and outside counsel to prepare County’s defense. Because of her key management role in County’s disability programs, Jenkins is a key County witness deposed in disability discrimination litigation and a key trial witness.
Neither Hilario nor anyone in County counsel’s office ever consented to Flatt’s ex parte communications with Jenkins.
b. Jenkins’s Internal Complaint
Jenkins’s internal complaint was attached as an exhibit to Hilario’s declaration. Hilario declared that the exhibits to Jenkins’s internal complaint were not included because they contained attorney-client privileged information and attorney work product but she would make them available for in camera review at the hearing on County’s motion if necessary.
Jenkins’s internal complaint, dated April 13, 2006, asserts: Since Jenkins’s return from medical leave in November 2005, her supervisor twice asked her if she is aware of nonservice related disability retirement, alluded that the board of supervisors is unhappy with her, falsely accused her of not providing information and/or being resistant to supervision, slandered her in email to Jenkins’s peers, and attempted to alter her job class specification substantially without prior discussion. Her supervisor’s demeanor is hostile and suspicious.
c. Tyra Declaration
Tyra declared: County retained his law firm to conduct an independent investigation of Jenkins’s internal disability complaint. In connection therewith, he reviewed her internal complaint and attached supporting documents and personally interviewed her. The attached documents included documents labeled “attorney-client privilege” and “confidential.” Several of the typed County documents attached to Jenkins’s internal complaint contained notes handwritten by Jenkins addressed to “Gail.” During their interview Jenkins informed him that “Gail” is Flatt, who represents her in connection with her internal complaint and to whom Jenkins provided a copy of her internal complaint and all attachments thereto. Following the interview, Jenkins sent him additional documents to support her claim. They included emails to members of County’s management and County counsel concerning the assignment of disability claims to outside counsel and emails between risk management and County counsel regarding an evaluation of County policies and procedures. The emails were marked “confidential communication” and were addressed to County counsel by name.
d. Tyra Report
Tyra’s final report of his investigation of Jenkin’s internal complaint states: Jenkins’s complained that she was discriminated and/or retaliated against by her supervisor as a result of taking several weeks of disability related to a back condition in autumn 2005 and that her supervisor treated her inappropriately in the workplace. He reviewed at length Jenkins’s written internal complaint and the supporting attachments. Jenkins had organized the documents by subtopics. Each subtopic grouping was introduced by a typed narrative describing the subtopic. Some of the descriptive narratives were addressed to “‘Gail.’” One subtopic involved a series of events which, as Tyra learned during the course of his investigation, surrounded the handling of the Pizza case. Tyra understood that criticism arose regarding Jenkins’s handling of the investigation of Pizza’s disability claims and/or requests for reasonable accommodation, and that Jenkins believed the criticism was unjustified. To support her assertion that the criticism was unjustified, Jenkins attached to her internal complaint handwritten notes regarding conversations with others regarding the Pizza case.
Following their May 9, 2006 interview, Jenkins provided Tyra with internal County emails regarding County’s preparation for a mediation in the Pizza case, in further support of her assertion. Tyra’s report noted that he had direct confirmation from Jenkins that she had provided Flatt with all the supporting documents attached to her internal complaint, but he did not have direct confirmation that she had provided Flatt with these emails that she sent him after their interview. He thought it reasonably likely that she had provided them to Flatt, given that she had provided Flatt all the other documents. He found this troubling because Flatt represents Pizza and attended the mediation on Pizza’s behalf, and he learned during his interview with Jenkins’s supervisor that Jenkins had attended the Pizza mediation on behalf of County.
On May 26, Tyra interviewed a County risk analyst. The risk analyst informed Tyra that there had been an issue regarding the mishandling of medical records releases in the Pizza case, that she and Jenkins had discussed the Pizza case, that Jenkins had confirmed to her (the analyst) that Jenkins had discussed the situation involving the Pizza case with “her counsel,” whom the analyst suspected was Flatt. On June 1, Tyra interviewed Jenkins’s supervisor. They had an extensive discussion regarding the Pizza case. The supervisor informed him that issues surrounding the handling of the case surfaced during Jenkins’s disability leave. The supervisor acknowledged she had been critical of certain aspects of Jenkins’s handling of the Pizza file and confirmed that she (the supervisor) sent an email stating as much.
Opposition to Motion to Disqualify
Opposition to County’s motion was supported by declarations of Flatt and Cooper.
a. Flatt Declaration
Flatt declared: She has practiced law in Sonoma County since 1982. She became interested in disability discrimination law in 1992 and since then has handled 61 cases in Northern California counties and federal courts, plus had consultations with clients about disability issues. She has had approximately seven cases in which County was the defendant.
She represented Cooper in a reasonable accommodation matter in 2003 which was resolved in 2003. She has represented Cooper in her current disability claim since August 2005. Jenkins telephoned her in February 2006 requesting Flatt to represent her in her own disability discrimination claim against County. Before responding to Jenkins’s request, Flatt obtained express authorization from Cooper to represent Jenkins. She then arranged to meet with Jenkins only after advising her that they would only discuss her own matter; she cautioned Jenkins that they could not discuss any other cases, nor could Jenkins discuss anything she had heard or learned from any County attorneys. After their initial February 2006 contact regarding Flatt’s representation of her, all their discussions were limited to Jenkins’s own case.
In April 2006 Jenkins dropped off a folder of materials at Flatt’s office; Flatt was not in the office at the time. Flatt first looked at the folder a week later. She noted that it contained Jenkins’s internal complaint, accompanying narrative, and back-up documents, none of which Flatt had previously seen. She noted that Jenkins had redacted portions of the documents, a few of which were labeled “attorney-client privilege.” Flatt briefly reviewed the materials, returned them to the folder, and placed the folder on a file room shelf. She did not look at it again until she received the June 21, 2006 letter from County’s attorney requesting that she withdraw from representing Pizza. She informed Jenkins on June 27, 2006 that she no longer represented Jenkins and has not since communicated with her.
Jenkins had a chance encounter with Hilario at the Sonoma County courthouse on June 27. She told Hilario that the folder from Jenkins contained documents marked “attorney-client privilege,” but until she looked at them, she could not know their privileged nature. She did not tell Hilario she had reviewed all the documents, and she deliberately did not read an email from County’s attorney, because it appeared to be an analysis of an appellate decision. When she returned to her office that day she sealed the folder Jenkins had given her in a large envelope, dated the envelope, and, after numerous unsuccessful attempts, lodged the sealed documents with the court. She did not remove or copy any of the documents before sealing them, nor did she make any notes regarding the documents or their content.
Flatt has represented clients in disability matters against County since 1999. She is familiar with the attitude of County departments, including the probation department, toward disabled employees, and with County’s written and actual disability policies. She has had hundreds of pieces of correspondence with County regarding disability issues. In her concluding paragraph, Flatt avers: “There are no documents, attorney-client privileged, confidential, or otherwise in the folder Ms. Jenkins gave me that provided me any information about the Tiffany Cooper case that I did not already possess from my own personal involvement and observation.”
b. Cooper Declaration
Cooper declared that she retained Flatt in August 2003 and Flatt helped her obtain reasonable accommodations. She retained Flatt again in August 2005. In February 2006 she gave Flatt express consent to represent Jenkins after she and Flatt discussed thoroughly the ramifications of Flatt’s representation of Jenkins. Flatt informed Cooper of the motion to disqualify. Cooper would like Flatt to continue representing her because Flatt has represented her off and on for more than three years and is familiar with her situation. It would be difficult for Cooper to find another attorney with Flatt’s skill and experience in the area of disability discrimination.
Reply Declarations
County submitted three declarations in reply to the opposition to its disqualification motions.
a. Hilario Declaration
Hilario declared: She reviewed the email about a legal analysis by outside County counsel to which Flatt’s declaration referred. The analysis concerned a court decision regarding a public entity’s duty to accommodate employees’ disabilities. In connection with preparing County’s defense to Cooper’s DFEH claim and subsequent complaint, Hilario spoke personally with Jenkins about the Cooper case twice in May 2006 and personally met with Jenkins in May and June 2006 to discuss the matter.
b. Mount Declaration
Attorney Kathy Mount was retained by County to conduct an independent investigation of allegations that Jenkins provided County’s attorney-client privileged documents, attorney work product and other confidential material to Flatt and, if so, to determine if Jenkins violated any County rules by so doing. She declared: She reviewed Jenkins’s internal complaint and its supporting documents. The documents included County documents regarding actions filed by Cooper. Mount interviewed Jenkins as part of her investigation. The interview was recorded and transcribed. During that interview Mount asked Jenkins when Flatt first represented her. Jenkins replied that she contacted Flatt some time in October 2005, during her medical leave, because, despite “back and forth” contacts between Jenkins and Jenkins’s office concerning her doctor’s indication that she would need a reasonable accommodation to go back to work, “nothing was being done.” Flatt stopped representing her in mid-June 2006.
c. Berk Declaration
Jeffrey Berk is a deputy county counsel. He declared: He is the deputy assigned to provide legal advice when issues arise concerning disabled County employees. He works with Jenkins in evaluating and responding to employees’ requests for disability accommodation. Jenkins was County’s representative in the Cooper case and is an important key witness in Cooper’s action. Through his privileged communications at meetings and other privileged attorney-client communications, he has imparted to Jenkins his legal opinions, mental impressions, analyses and other attorney work product regarding Cooper’s case. Jenkins was involved with Cooper’s disability issues until Cooper filed her action in June 2006. Jenkins communicated with Cooper’s supervisor and arranged for a physician from County’s occupation health provider to speak to Cooper’s physicians and perform a Fit for Duty examination. Jenkins corresponded with Flatt regarding the Cooper case and attended at least one interactive process meeting with Flatt. Jenkins communicated with Berk regarding his mental impressions and strategies for handling the Cooper case.
Hearing
At the October 11, 2006 hearing on the motion, Hilario, County’s attorney, argued that County was trying to disqualify Flatt from using what she learned from Jenkins who was a current County employee and key witness in the Cooper case, against County; that Jenkins’s internal complaint and Cooper’s action had the common issue of County’s failure to accommodate a disability; that the “human mind” would not allow Flatt to separate or compartmentalize the privileged County information she learned while representing Jenkins in Jenkins’s internal complaint from what she learned from Jenkins while representing her other clients in their disability cases; that Hilario met with Jenkins for hours in Hilarios’s office regarding Pizza and Cooper, and it was logical to assume that Flatt, while meeting with Jenkins, discussed with Jenkins how County handles disability matters. She informed the court she had not seen the documents from Jenkins that Flatt lodged with the court.
Flatt informed the court that during the period she represented Jenkins, she and Jenkins honored Flatt’s requirement that they could have no discussion regarding any other pending cases. She argued that she could not return the documents Jenkins had voluntarily given her because she had to maintain her client’s confidences. She commented that she recalled an email in the documents marked “attorney-client privilege,” but that it meant nothing to her because she did not recognize the attorney’s name or firm and it contained no information about a specific case; it simply complimented Jenkins on her background and the way she conducted herself at a meeting. She recalled the “attorney-client privilege” notation on a legal analysis document but she did not read or care about the analysis because she was familiar with the case and did not need to know what the analyst said. She could not think of any “attorney-client” privilege documents in the folder that would have given her a “leg up” in the Cooper case. She commented that her “60-year-old brain” did not remember things from June 2006 well enough in October 2006, i.e., from the time she sealed the documents to the time of the hearing, to be able to tell anyone much about the things. She reiterated that she didn’t need Jenkins to tell her how County handles disability cases because she has been handling disability cases against County long before she represented Jenkins and has seen “firsthand” how it handles such cases.
Order
The court found that there was no doubt that Flatt “suffered a lapse in judgment by meeting with and taking on” Jenkins as a client. However, it found the lapse did not rise to the level of requiring disqualification because Flatt had terminated her representation of Jenkins and stated that she did not examine, copy or use any of the documents Jenkins gave her. It granted the motion “only to the extent that Gail Flatt must hand over all the confidential materials still in her possession which she obtained from Linda Jenkins,” and that she was precluded from revealing or using any information gained from such documents unless the information was properly obtained in discovery. In all other respects, it denied the motion for disqualification.
DISCUSSION
Standard of Review
The trial court’s decision on a disqualification motion is generally reviewed for abuse of discretion. (People ex rel. Depart. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) If the trial court resolved disputed factual issues, the appellate court should not substitute its judgment for the trial court’s express or implied findings supported by substantial evidence. (Ibid.) If there are no material disputed factual issues, the appellate court reviews the trial court’s determination as a matter of law. (Id. at p. 1144.)
The resolution of factual issues that arise from competing declarations is conclusive on the appellate court, which resolves conflicts in the declarations in favor of the prevailing party. (Ochoa v. Fordel, Inc. (2007) 146 Cal.App.4th 898, 906.) If the declarations do not reveal disputed material facts, the reviewing court is not obligated to defer to the inferences drawn by the trial court in resolving factual disputes for which the parties did not submit direct evidence. (Ibid.)
No Abuse of Discretion
The crux of County’s contention that Flatt should be disqualified from representing Cooper in her disability employment discrimination action against County is that Flatt, while representing Jenkins in her internal complaint against County for disability employment discrimination, obtained from Jenkins privileged and confidential information regarding the Cooper action to which Jenkins, as manager of County’s office for County employee discrimination claims, had access. While we echo the trial court’s observation that Flatt exhibited a lapse of judgment in agreeing to represent Jenkins, insofar as she was already representing County employee Cooper on a disability discrimination claim and knew Jenkins played a pivotal role in processing such disability discrimination claims for County, we conclude the court did not abuse its discretion in denying the motion to disqualify Flatt from representing Cooper.
Flatt and County presented conflicting declarations regarding whether Flatt obtained confidential information from Jenkins that would give her an unfair advantage in prosecuting the Cooper case. The court denied the motion to disqualify Flatt after expressly stating that she had represented that she did not examine, copy or use any of the documents in the folder Jenkins delivered to Flatt’s office. Thus, the court impliedly accepted as credible Flatt’s representation regarding her handling (or non-handling) of the documents. In so doing, it impliedly accepted County’s assertion that at least some of the documents were privileged or confidential.
The court’s ruling also implies that it accepted as credible Flatt’s statements that during the period she represented Jenkins, the discussions between her and Jenkins were limited to Jenkins’s own case and did not concern other cases or other information Jenkins had learned from County’s attorneys.
Resolution of credibility questions falls within the province of the trial court, which sits as the trier of fact. (See Ochoa v. Fordel, Inc., supra, 146 Cal.App.4th at p. 910.) Nothing in the evidence on this record reflects a patently erroneous credibility resolution. Flatt declared she “briefly” reviewed the documents in the folder Jenkins delivered to her office in April 2006; she could not know the nature of the documents marked “privileged” without looking at the documents; she specifically did not read one document that appeared to fall within County’s attorney-client privilege; and she sealed the entire folder on June 27, 2006 without copying or taking any notes regarding the documents. From Flatt’s statement that no documents in the folder provided her any information about the Cooper case that she did not already possess from her personal involvement or observation, one could infer that she had to read them to be able to make such a statement. Yet the trial court apparently declined to draw this inference, drawing instead a reasonable inference from other portions of Flatt’s declaration that she gave the documents, at most, a cursory look. Furthermore, her declaration that she cautioned Jenkins not to discuss any case except her own and not to discuss any information she learned from County’s attorneys was not disputed by a contrary declaration from Jenkins.
Moreover, even if Flatt reviewed the “attorney-client” documents in the Jenkins folder thoroughly, California cases have consistently concluded that an attorney’s mere exposure to confidential information of the opposing party does not mandate disqualification. (See Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 841-845 (Neal).) In Neal, plaintiff Neal was a human resources manager for Health Net. In that capacity, she reviewed and responded to a discrimination complaint from another employee, Brockett, a secretary in Health Net’s legal department. (Id. at p. 834.) After Neal was terminated from Health Net, she engaged attorney Traylor to represent her in a wrongful termination action due to discrimination. (Ibid.) While the Neal litigation was pending, Brockett gained access to and reviewed Health Net’s Neal litigation computer files. (Ibid.) Brockett also contacted Traylor about representing her in her own action for employment discrimination, which he agreed to do. (Ibid.) However, he specifically advised her that she could not give him any information she possessed regarding Neal’s case. (Id. at p. 836.) Two weeks later, Health Net dismissed Brockett because she had reviewed the Neal litigation file. (Id. at pp. 834, 836.) Health Net moved to disqualify Traylor from representing Neal because of his representation of Brockett, who admitted gaining access to and reviewing the Neal litigation file. (Ibid.) In opposition Traylor declared that Brockett told him she had no information regarding the Neal litigation, and he denied receiving any such information from her. Brockett declared she did not disclose any such information to him. (Id. at pp. 836-837.)
The trial court granted the disqualification motion and the Court of Appeal reversed on six grounds. (Neal, supra, 100 Cal.App.4th at p. 850.)
(1) There was no evidence that legal secretary Brockett disclosed any information, confidential or otherwise, about the Neal case to attorney Traylor.
(2) To the extent there could be a reasonable inference of disclosure, no applicable legal standard supported disqualification of Traylor as Neal’s attorney as a sanction for Brockett’s viewing of Health Net’s Neal litigation file.
(3) A party cannot improperly disclose confidential information to his or her own counsel in the prosecution of his or her own lawsuit. “To do otherwise . . . would defeat the purpose of confidentiality, which is to promote full and open discussions between attorney and client.” (100 Cal.App.4th at p. 844.)
(4) Disqualification is an ineffective remedy because it would not prevent the party from giving his or her new counsel the information, which would leave the adversary in the same position as before.
(5) The purpose of disqualification is prophylactic. Attorneys may not be disqualified purely to punish or discipline them.
(6) Where an adversarial relationship develops, the rights of the employer to avoid unwarranted public disclosure of its confidences must be balanced against the right of the employee to maintain his or her lawsuit. In lieu of disqualification, less drastic measures, such as protective orders or in camera proceedings, can be taken to protect client confidences. (100 Cal.App.4th at p. 844.)
Given the factual similarities between Neal and the instant case, the Neal rationale is appropriately applicable here. There was no evidence that Flatt discussed the Cooper case with Jenkins during the four months Flatt represented Jenkins. To the extent the folder of documents Jenkins provided Flatt contained privileged or confidential documents of County, Flatt did not study or avail herself of them.
If we assume Flatt did discuss County claims handling strategies with Jenkins, Flatt asserts in her declaration that she has represented County employees in disability matters for seven years and has had an abundance of correspondence with County concerning disability issues. As a consequence she is familiar with its disability policies and with the attitude of various County agencies toward disabled employees, including the agency that employed Cooper. The trial court could reasonably infer, in light of her years of experience litigating disability claims against County, that the confidential material in the Jenkins folder and any privileged information Jenkins shared in conversation with Flatt would simply reflect County tactics and procedures with which Flatt was already well-acquainted. The disclosures would not provide her any significant and unfair advantage in representing Cooper.
Finally, the court could take into account the fact that by August 2006, when County moved for disqualification, Flatt had been representing Cooper in Cooper’s present disability discrimination claim since August 2005 and had represented her in another disability claim in 2003. The court’s order was drafted to avoid the hardship to Cooper of having to replace Flatt, an attorney familiar with her claims particularly and disability claims generally, with a new and unknown attorney, and yet still protect County’s interest in nondisclosure of its privileged information, by imposing the requirement that Flatt turn over all confidential documents and not reveal or use any information she may have gained from these documents.
County argues that Neal is distinguishable and inapplicable. It asserts that attorney Traylor in Neal did not possess confidential Health Net information from client and former Health Net legal secretary Brockett about his client Neal’s litigation, whereas Flatt, through Jenkins, undisputedly possessed confidential County documents regarding the Cooper litigation, and disclosed that information to Flatt. County additionally argues that Jenkins was actually involved in the Cooper case and had communicated about it with Flatt, unlike legal secretary Brockett in Neal, who was not involved with Health Net’s defense of the Neal litigation. County also argues that, unlike Flatt who never informed County that she was representing Jenkins, attorney Traylor immediately informed Health Net that he was representing its former legal secretary Brockett.
As discussed, ante, the trial court here impliedly found credible Flatt’s statements that she did not study or use the documents provided by Jenkins and that she did not discuss with Jenkins any other cases or confidences given to Jenkins by County attorneys, and there is no evidence on the record to suggest Flatt’s declarations are inherently incredible.
In any case, Neal concluded that even if Brockett did disclose to attorney Traylor confidential information about the Neal litigation that she had obtained by reviewing Health Net’s Neal litigation computer files, that disclosure did not automatically warrant disqualification. As we discuss more fully in “Substantial Prejudice,” post, the trial court here could reasonably conclude that Flatt did not obtain a litigation advantage in her representation of Cooper by seeing the documents attached to Jenkins’s internal complaint that Jenkins brought to Flatt’s office.
Finally, the fact that attorney Traylor informed general counsel for Health Net that he would be representing secretary Brockett three days after he agreed to do so was not a factor in the Court of Appeal’s conclusion that the disqualification motion was erroneously granted. (See Neal, supra, 100 Cal.App.4th at pp. 843-850.) Consequently, it is an irrelevant distinguishing factor between Neal and the instant case.
Nor does Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, cited by County, assist it in its “inform opposing counsel” assertion. The appellate court concluded that the attorneys who represented an employee in a wrongful termination case did not have to be disqualified because they were formerly associated with the firm that had represented the defendant/former employer in intellectual property matters. The fact that the plaintiff’s attorneys submitted a draft of the complaint they intended to file to the defendant/former employer had no bearing on the appellate court’s conclusion. (Id. at pp. 298, 300.)
Citing In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596 (Complex Asbestos) and Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067 (Shadow Traffic), County argues that Flatt failed to demonstrate that Jenkins did not disclose confidential County information through oral communications. In Complex Asbestos a paralegal worked for the Brobeck law firm for three years exclusively in the field of asbestos litigation defense. Following his termination from the Brobeck firm, he went to work for the Harrison law firm, which represented plaintiffs in pending asbestos litigation in which several defendants were represented by the Brobeck firm. (232 Cal.App.3d at pp. 579, 580.) It was undisputed that at approximately the time the paralegal applied to work at the Harrison firm but while still employed by the Brobeck firm, he looked at the Brobeck firm’s computer records for the cases filed by the Harrison firm, although he had no responsibility for any of the Harrison firm cases at the time. (Id. at pp. 583, 584.)
In affirming the defendants’ motion to disqualify the Harrison firm because of the paralegal’s conflict of interest, Complex Asbestos stated: “Absent written consent, the proper rule and its application for disqualification [of an attorney] based on nonlawyer employee conflicts of interest should be as follows. The party seeking disqualification [i.e., the asbestos defendants] must show that its present or past attorney’s former employee [i.e., the paralegal who had worked at the Brobeck firm] possesses confidential attorney-client information materially related to the [present] proceedings before the court. The [moving] party should not be required to disclose the actual information contended to be confidential. However, the court should be provided with the nature of the information and its material relationship to the proceeding. [Citation.] [¶] Once this showing has been made, a rebuttable presumption arises that the information has been used or disclosed in the current employment [i.e., the paralegal’s employment at the Harrison firm]. The presumption is a rule by necessity because the party seeking disqualification [the asbestos defendants] will be at a loss to prove what is known by the adversary’s attorneys and legal staff [i.e., the Harrison firm]. [Citation.]” (Complex Asbestos, supra, 232 Cal.App.3d at p. 596, fn. omitted.)
Shadow Traffic concluded the Complex Asbestos holding regarding the creation of a rebuttable presumption of disclosure was applicable to a disqualification motion involving expert witnesses. (Shadow Traffic, supra, 24 Cal.App.4th at p. 1085.) Metro Traffic Control, Inc., (Metro) sued Shadow Traffic for business torts. (Id. at p. 1071.) It held a one hour meeting with four members of an accounting firm to discuss having accountants from the firm testify as expert witnesses at trial. Aspects of Metro’s action were discussed during the meeting. (Ibid.) Metro decided not to retain the accounting firm. Several weeks later Shadow Traffic engaged one of the four accountants as a trial expert. (Id. at p. 1072.)
The appellate court upheld the order granting Metro’s motion to disqualify Shadow Traffic’s attorneys. It concluded there was sufficient evidence for the trial court to find (a) the accountant retained by Shadow Traffic had obtained confidential information during his one hour meeting with Metro, and (b) Shadow Traffic had not rebutted the presumption that the accountant’s information about Metro had been disclosed to them. (Shadow Traffic, supra, 24 Cal.App.4th at pp. 1085-1087.)
Complex Asbestos and Shadow Traffic are distinguishable because they involve persons who obtained confidential information about pending litigation while working for or consulting with the attorneys representing one party to the lawsuit and who then went to work or became consultants for the attorney representing the opposing party to the same lawsuit. Unlike the Complex Asbestos paralegal and the Shadow Traffic expert accountant, Jenkins did not “switch sides” by leaving her County employment to work for or consult with Flatt on the Cooper action. Rather, she engaged Flatt for a matter independent of the Cooper action: her own claim of employment discrimination.
Moreover, even if the Complex Asbestos rebuttable presumption were applicable here, so that there was a presumption that Jenkins had disclosed to Flatt whatever confidential information she possessed about the Cooper action, the trial court’s statement that Flatt did not examine, copy or use the documents Jenkins gave her is, in effect, a conclusion that Flatt had rebutted the presumption.
Substantial Prejudice
County contends disqualification is warranted because it will be substantially prejudiced by the confidential information Flatt obtained from Jenkins. “[D]isqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation. Though such information cannot be unlearned, and the lawyer who obtained it cannot be prevented from giving it to others, disqualification still serves the useful purpose of eliminating from the case the attorney who could most effectively exploit the unfair advantage. [Citation.] Disqualification is inappropriate, however, simply to punish a dereliction that will likely have no substantial continuing effect on future judicial proceedings. []” (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309.)
In finding that Flatt’s “lapse of judgment” in taking on Jenkins as a client “does not rise to the level that the motion to disqualify should be granted,” the trial court impliedly found that County was not prejudiced by Flatt’s cursory viewing of the folder of documents Jenkins had given her. On the record before it, the court’s finding was supported by substantial evidence.
In her declaration in support of the motion to disqualify Flatt, attorney Hilario declared that she had reviewed Jenkins’s internal complaint and the exhibits attached thereto. Hilario described some of these attached exhibits as privileged attorney-client communications and attorney work product and as containing handwritten notes on them from Jenkins to Flatt. Hilario declared that she also reviewed the additional documents Jenkins had provided to independent investigator Tyra. Hilario also declared that in April 2006 Flatt received numerous privileged County documents from Jenkins when Jenkins filed her internal complaint; that from April through June 27, 2006, Flatt had in her possession Jenkins’s internal complaint, the exhibits attached thereto, and the documents Jenkins had given to Tyra; and that after the County moved in June 2006 to disqualify Flatt from representing Pizza, Flatt lodged all the documents she received from Jenkins with the court under seal.
Tyra declared that prior to interviewing Jenkins he reviewed her April 2006 internal complaint and attached documents. He interviewed her on May 9, 2006, and, following their interview, she gave him a series of privileged and/or confidential emails regarding a review of pending county cases.
In opposition Flatt declared that in April 2006 Jenkins provided her a folder that contained Jenkins’s internal complaint, Jenkins’s “narrative,” and “back-up” documents, some of which were labeled “attorney-client privilege.” As we have recounted, she further declared that on June 27, 2006, she sealed this folder and lodged it with the court. At the hearing on the motion Flatt, while admittedly not under oath, repeated that she had sealed up and lodged with the court everything Jenkins had given her. Implicit from Flatt’s declaration and her statements at the hearing is that she could not know what privileged emails Jenkins gave Inspector Tyra because everything Flatt received from Jenkins was delivered to her office in April 2006, and Jenkins did not give Tyra the privileged emails until after her May 9, 2006 interview with him.
Thus, although Hilario declared that County “does not know what documents were lodged under seal,” and she reiterated at the hearing that “I have not seen” the documents Flatt lodged under seal, the court could reasonably infer that, in fact, Hilario had seen all these documents. While she may not literally have seen the exact pieces of paper that Flatt had sealed and lodged, she knew what was contained in the lodged documents and had access to the same documents. Moreover, at the hearing Flatt, without objection from County’s attorneys, urged the court to look at the sealed and lodged documents, implying that, by doing so, the court would see that she could not have gained any litigation advantage by having noticed documents marked “attorney-client privilege” or “confidential.” Indeed, Hilario declared that the exhibits to Jenkins’s internal complaint would be available for the court’s in camera review, if necessary, and, as just set out, those exhibits constituted the sealed and lodged documents.
The court’s order denying the motion to disqualify does not specify that it looked at the lodged documents. On a silent record the trial court is presumed to have been aware of and followed the applicable law when exercising its discretion. (In re Jacob J. (2005) 130 Cal.App.4th 429, 437.) The appellate court cannot presume error where the record does not establish on its face that the court misunderstood the scope of its discretion. (Ibid.) Therefore, we presume the trial court understood it had to assess whether Flatt, in looking through the documents attached to Jenkins’s internal complaint, obtained information likely to be used to her advantage against County in representing Cooper.
We have reviewed these lodged documents. They are not County’s specific files on Cooper’s claims, and the references to Cooper contained in these documents are, at best, oblique, and so reasonably appear to have had marginal bearing on the Cooper case. Furthermore, as is undisputed, Flatt was familiar with County’s modus operandi for handling disability claims from her seven years of representing disabled County employees, including her frequent contacts with Jenkins in Jenkins’s capacity as human resources manager of County’s disability program. Thus, the documents do not undermine the trial court’s conclusion from the evidence before it that the documents contained few surprises and gave Flatt little confidential information to exploit. Under the circumstances, we find no abuse in the court’s implied finding of absence of prejudice.
Breach of Ethical Standards
County contends Flatt should be disqualified for breach of the ethical standard set forth in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657 (State Comp.). State Comp. held that when a lawyer receives materials that obviously appear to be subject to an attorney-client privilege or are otherwise clearly confidential or privileged, and where the materials were apparently sent inadvertently, the lawyer should refrain from examining the documents any more than is essential to ascertain if the materials are privileged and, if she ascertains that they may be inadvertently delivered privileged attorney-client material, should immediately notify the party entitled to the privilege.
As Gregori v. Bank of America, supra, 207 Cal.App.3d at pages 308-309 observed, whether the misconduct claimed to warrant disqualification is proscribed by an ethical norm or a disciplinary rule or may be characterized as failure to avoid the appearance of impropriety, disqualification is determined by the same standard: is it reasonably probable the information obtained through the misconduct will likely be used to the recipient’s advantage against the opponent in the litigation? Here, based on the trial court’s factual findings, the answer is “no.”
CONCLUSION
That a lawyer’s conduct was unquestionably unprofessional, ill-advised, and a manifestation of poor judgment does not, ipso facto, mandate disqualification. (Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 309.) Taken as a whole, the evidence on this record does not establish that Flatt obtained information from Jenkins that could be unfairly used to her client Cooper’s advantage. Therefore, we cannot say the trial court abused its discretion in denying the motion to disqualify.
DISPOSITION
The order is affirmed.
We concur: Simons, J., Needham, J.
Complex Litigation and Shadow Traffic, also cited by County, are distinguishable because (1) as discussed more fully, post, they concerned employees or experts of the law firm representing one party who moved during the pending litigation to disqualify the firm representing the opposing party; they did not concern a person who was an agent of the defendant in one action and a plaintiff bringing an action against the same defendant in another action, and (2) the two cases concerned disqualification in those circumstances when the second firm/party fails to obtain written consent from the first firm/party before retaining the services of the employee or expert.