## Facts

- Ilene Goldberg, a former Warner/Chappell Music, Inc. employee, sued Warner and her former supervisor, Edward Pierson, for wrongful termination and discrimination, including retaliation for complaints of gender discrimination and alleged whistleblowing.
- About six years before filing suit, Goldberg briefly consulted J. Eugene Salomon, then a partner at Mitchell Silberberg & Knupp LLP (MS&K), regarding a written employment agreement Warner asked her to sign.
- Salomon later left MS&K roughly three years before Goldberg filed the employment lawsuit.
- In the employment lawsuit, Warner and Pierson retained MS&K as litigation counsel.
- Goldberg moved to disqualify MS&K, asserting Salomon formed an attorney-client relationship with her, received confidential information, and that his presumed knowledge should be imputed to MS&K even though he no longer worked there.
- MS&K presented evidence that Salomon was the only lawyer who dealt with Goldberg and that he did not share the consultation’s contents with anyone at the firm.
- The trial court denied disqualification, finding the consultation brief and informal and that no current MS&K lawyer had Goldberg’s confidential information.

## Issues

1. Whether a law firm must be vicariously disqualified from representing a party adverse to an opposing litigant because the firm formerly employed a lawyer who previously consulted with that opposing litigant.
2. Whether the presumption that a lawyer possesses a former client’s confidences requires automatic imputation to the lawyer’s former firm absent evidence that confidences were shared with current firm lawyers.

## Decision

- The California Court of Appeal affirmed the order denying Goldberg’s motion to disqualify MS&K.
- The court held that a departed lawyer’s presumed possession of a former client’s confidential information does not automatically require disqualification of the lawyer’s former firm.
- Disqualification was unwarranted where the evidence showed no current MS&K lawyer had any dealings with Goldberg or obtained her confidential information, and Salomon had left the firm years before the litigation.

## Legal Principles

- Disqualification turns on whether current counsel is in a position to use a former client’s confidential information against that former client, not on a purely retroactive imputation theory.
- The presumption that confidences are shared within a firm primarily supports vicarious disqualification when the conflicted lawyer remains in the firm; it does not automatically extend to a firm the lawyer left before the adverse representation began.
- A firm that formerly employed a conflicted lawyer may avoid disqualification by showing that no current lawyer at the firm actually possesses material confidential information of the former client.
- Courts may consider counsel-of-choice concerns and the risk of tactical disqualification motions when deciding whether disqualification is necessary to protect confidentiality and the integrity of proceedings.

## Conclusion

The court allowed MS&K to continue representing Warner and Pierson because the challenged lawyer had departed years earlier and the record supported that no current firm lawyer possessed Goldberg’s confidential information, making automatic vicarious disqualification of the former firm improper.


Goldberg v. Warner/Chappell Music, Inc., 125 Cal. App. 4th 752 (Cal. Ct. App. 2005)