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Court of Appeal:
Legal Aid Firm Not Disqualified by Virtue of Basic Intake Conversation With Adverse Party
Opinion Says Prospective Client Not Entitled to Have Representation Blocked Where Only Information Provided Was Financial Qualifications, Basic Facts of Dispute
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has held that a rule of professional conduct adopted in 2018 that expands the long-established rule that a former client may seek to disqualify an attorney from representing an adverse party if the lawyer possesses confidential information does not apply where a party only gave a public-interest firm financial qualification information and basic facts of the dispute.
The dispute arose after Charlotte Willett agreed in 2013 to transfer one-half interest in real property located in Bishop to her niece, Kimberly Syre, in exchange for Syre helping her with the repairs and paying $100,000.
After the relationship soured, Willett executed documents in early 2021 indicating a desire to leave all of her property to her son, Mark Douglas. Willett died in June 2021.
In July 2021, Syre contacted California Indian Legal Services (“CILS”)—a grant-funded law office providing legal services to individuals who qualify for free services by the firm—seeking representation before filing a lawsuit against Douglas for quiet title to the Bishop property.
Syre spoke with a non-attorney intake advocate tasked with determining if prospective clients are eligible for grant-funded services—available to those whose financial disclosures indicate that they fall below the federal poverty line and are either Native Americans or live in Bishop. Syre explained the basic facts underlying her dispute with Douglas and indicated that she lives in Fullerton.
The intake advocate emailed a summary of the conversation to Michael Godbe, an attorney with CILS, who determined that she did not meet the criteria for representation due to living in Orange County.
Syre eventually retained attorney Brian Lamb, who filed a quiet title complaint on her behalf on July 6, 2022. After being served, Douglas contacted CILS and attorney Rachel Leiterman agreed to represent him. Inyo Superior Court Judge Stephen M. Place denied a motion by Syre to disqualify CILS from representing Douglas pursuant to Rule of Professional Conduct 2.18, which provides:
“A lawyer…shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter….If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter….”
Presiding Justice Manuel A. Ramirez authored the opinion, filed Monday, affirming the order denying disqualification. Justices Art W. McKinister and Richard T. Fields joined in the opinion.
Paucity of Law
Ramirez noted that “[t]here is a paucity of decisional law interpreting rule 1.18, but the obvious thrust of the rule is to protect information provided by a prospective client against disclosure to third parties or being made public, as indicated by the plain language of the rule.”
He explained that the new rule “extended certain protections” against the use of confidential information obtained by an attorney in the course of an initial consultation. The rule requires a party to establish that she was a prospective client and communicated confidential information to an attorney that was improperly disclosed.
The jurist pointed out that “there is a conclusive presumption of knowledge of confidential information” when a party is a former client of the attorney but Rule 1.18 does not apply that presumption to prospective clients and representation is not barred by the rule unless the lawyer received information from the party that could be significantly harmful to her legal interests in the disputed matter.
He said “we conclude that plaintiff was a prospective client, despite not communicating directly to an attorney,” but noted that the issue of whether CILS received confidential information was less clear.
Confidential Information
Ramirez wrote:
“[T]here are no cases, statutes, or rules defining the type of communication between a prospective client and an attorney that could be considered confidential when the information acquired in the communication is geared at deciding whether to form the attorney-client relationship at all. Rule 1.6 itself informs us that in a prospective client situation, not all information is confidential. However, there is no statutory or rule definition of the term in the context of prospective clients to differentiate the type of preliminary information needed by an attorney to make the determination whether to accept a case or not and the type of information exchanged in an attorney-client relationship.”
Turning to the call between Syre and CILS, the justice remarked:
“The unrefuted evidence provided by CILS demonstrates that plaintiff spoke only to an intake advocate employed by CILS, who was not an attorney, and who was trained to inform prospective clients that their case cannot be accepted unless and until their issue has been discussed at a ‘Case Acceptance Meeting.’ The intake form and the information requested thereon is a standardized intake form used by all legal aid offices throughout the state. Thus, plaintiff was aware that obtaining representation by CILS required the communication of preliminary information about the ‘issue’ to determine if the case was appropriate under the CILS grants.”
He added:
“[T]he only information communicated by plaintiff to the CILS intake advocate that could be viewed as confidential would have been her financial information, needed to determine her eligibility for representation. However, the communication of that information was necessary to determine if she was eligible for the services of CILS in the first place, and there is no evidence it was communicated to a third party or made public. Further, it was unlikely plaintiff’s financial information would be disclosed to third persons or to the public because none of the issues raised in the quiet title action depended on that information. There is no showing or finding that the confidential information was either made public or disclosed to a third party, such as would disqualify CILS from representing defendant.”
Reasoning that any information relayed by Syre relating to the facts of the dispute “was not confidential, did not risk any harm to plaintiff, and was not material to her action to quiet title,” he concluded that “[w]e cannot consider communication of the nature of plaintiff’s anticipated action against defendant to be confidential information where plaintiff was seeking representation in anticipation of filing a lawsuit based on that information in court.”
Public Interest Representation
Ramirez remarked that “a motion to disqualify a public interest law office is treated differently from…motions directed at private attorneys or law firms” and noted that courts allow screening procedures and ethical walls between members of such firms as alternatives to disqualification of all attorneys within the organization.
He wrote:
“[B]ecause plaintiff’s case was never accepted by CILS, she could never establish which attorney with the CILS office was disqualified because she never consulted with an attorney. Because vicarious disqualification does not apply to all attorneys in a public law office, it would be impossible to determine which attorney, if any, was in possession of the confidential information, even if confidential information had been communicated.”
He continued:
“[T]he absence of evidence that CILS acquired confidential information, that was disclosed to third parties or made public, as well as the lack of evidence that a CILS attorney (as opposed to an intake advocate) obtained confidential information from the prospective client that could be significantly harmful to that person in the matter…demonstrates the court properly exercised its discretion in denying the motion to disqualify CILS.”
He added that Douglas, who is homeless, “would be deprived of all legal representation due to the dearth of public interest law offices…in the region” if CILS were disqualified.
The case is Syre v. Douglas, 2024 S.O.S. 2858.
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