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July 16, 2010

Montgomery v. Superior Court (Knight) (2010) 186 Cal.App.4th 1051

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The Fourth District holds that an expert, who was a former client of an opposing attorney, need not be disqualified as long as the expert provides a written conflict waiver.

Laura and Douglas Montgomery retained John M.  Shamoun, M.D.  to testify about the standard of care in their medical malpractice action against physician Mark Knight.  Knight’s attorney Terrance Schafer moved to disqualify Shamoun asserting that Schafer’s representation of Shamoun 10 years earlier created a conflict of interest.  Shamoun submitted a declaration stating he understood he could be subject to cross-examination and waived the privilege as to any relevant information.  The trial court granted the motion to disqualify Shamoun, explaining that its decision was based in part on a client’s right to “vigorous representation.”

An attorney’s duty of confidentiality to a former client is governed by the Rules of Professional Conduct, rule 3-310(E).  This Rule mandates informed written consent when an attorney seeks to accept employment adverse to a current or former client and the attorney possesses confidential information material to the employment.  Business & Professions Code § 6068(e) requires an attorney to keep client confidences.

Typically, a former client seeks the disqualification of an attorney who possesses confidential information due to a previous representation.  In this case, the conflicted attorney sought to remove an opposing expert due to the attorney’s obligations.  The intention was to preclude the Montgomerys from later moving to disqualify Schafer due to his possession of confidential information about Shamoun.  Thus, the court considered whether there were sufficient grounds to remove Schafer.

In a simultaneous representation case the primary value at stake is the attorney’s duty of loyalty, rather than confidentiality.  The rule in a simultaneous representation case is strict, requiring almost automatic disqualification regardless of whether the simultaneous representations have anything in common or present any risk that the attorney possesses confidences material to the representation.

In a successive representation case the fiduciary duty jeopardized is client confidentiality because a former client has an interest in ensuring the permanent confidentiality of matters disclosed to the attorney.  In successive representation cases the moving party must show a substantial relationship between the two representations.  If there is a substantial relationship possession of material confidential information is presumed and disqualification of the attorney’s representation of the second client is mandatory.

The Court of Appeal found that there was no need to consider whether the two representations were substantially related because Shamoun offered to waive the conflict.  The Rules allow for a written disclosure and informed written consent to potentially adverse representation.  Shamoun’s waiver as to
“any relevant information” was adequate.

The consent, to be effective, had to be unqualified.  Schafer must be free to conduct a thorough and comprehensive cross-examination of Shamoun without concern about disclosing confidential information.  If Shamoun executes an unqualified informed consent following written disclosure, Schafer need not be concerned with loyalty to Shamoun.

Comment: The Court of Appeal would not allow the attorney to use his obligations as a sword to deprive an adverse party of the expert of their choice.

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