All Publications

May 5, 2011 | Law Alert

Schimmel v. Levin (2011) 195 Cal.App.4th 8

Download Publication

The Third District holds pleadings filed by a disqualified attorney may be stricken.

Leon Schimmel served as medical director for Community Health Associates Medical Group (“Community Health”).  He was defended in a wrongful termination suit filed by a former employee by Kelli Kennaday and her firm, Wilke, Fleury, Hoffely, Gould & Birney (Kennaday).

When Schimmel filed his own wrongful termination action against Community Health, Kennaday filed a petition to compel arbitration.  Schimmel moved to disqualify Kennaday based on her possession of confidential information due to the prior representation.  He also requested the Court strike the petition to compel arbitration because Kennaday prepared it.  The trial granted both requests.

The Court of Appeal agreed that the trial court did not abuse its discretion in concluding Kennaday possessed confidential information learned in the prior action that disqualified her from acting as counsel in the current action.

Thus, it was appropriate to strike pleadings filed by Kennaday.  Otherwise, Schimmel would be unfairly subject to his former counsel’s adverse actions against him while in possession of his confidential information.  The trial court has the authority to control the proceedings in the furtherance of justice, and it was appropriate to minimize possible injustice to Schimmel by striking the pleadings.

Comment:  In this case the failure to observe ethical boundaries affected the attorneys’ current client when its pleadings were stricken.  A disqualification order is not limited to prospective operation, and can affect substantive rights.

Practice Area: Lawyers & Judges Defense Group
Attorney: John B. Sullivan

View All Publications