The Second District holds an attorney who previously defended an auto manufacturer in cases under a lemon law cannot be disqualified from subsequently representing a plaintiff against the manufacturer in a case based on the same statute.
Payam Shahian represented Behnam Khani in a suit against Ford Motor Company and a Ford dealer for vehicle defects under the Song-Beverly Consumer Warranty Act. Ford moved to disqualify Shahian because he had previously represented Ford in cases under the Act.
Ford submitted the declaration of a partner in Shahian’s prior firm stating Shahian had worked on Song-Beverly actions defending Ford, and was privy to confidential client information related to the defense of Song-Beverly cases, as well as to pre-litigation strategies, tactics, and case-handling procedures. Shahian gave unspecified “input” to Ford’s general counsel and communicated regularly with Ford about Song-Beverly cases. The trial court granted Ford’s motion, finding the legal issues in Song-Beverly cases were substantially similar, and presuming Shahian’s previous work exposed him to confidential information about Ford’s handling of such cases.
In cases of successive representation the court applies a “substantial relationship” test which requires evidence supporting a rational conclusion information material to the evaluation, prosecution, settlement, or accomplishment of the former representation is also material to those functions in the current representation. The trial court considered only legal, not factual, issues involved in successive representations, and assumed that all Song-Beverly cases raised similar legal issues.
Ford’s evidence did not establish any information Shahian was exposed to in the prior representation would be material to his representation of Khani. Nor did Ford establish any confidential information about its defense of Song-Beverly cases would be material in Khani’s case. Khani’s vehicle was never the subject of a prior action in which Shahian represented Ford.
Ford did not show it had any policies, practices, or procedures generally applicable to the evaluation, settlement, or litigation of Song-Beverly cases during the time that Shahian represented Ford; that policies, practices, or procedures continued to exist unchanged; or the same decision-makers involved in cases Shahian handled for Ford were involved in Khani’s case.
Comment: A trial court must balance the current client’s right to chosen counsel against the former client’s right to confidentiality. Given the mobility of lawyers in contemporary legal practice, a broad interpretation of the substantial relationship test would severely hamper an attorney’s ability to represent clients in fields in which the attorney has developed experience.