## Facts

- Plaintiffs brought multiple class actions against First American Title Insurance Company and were represented by plaintiff-side firms.
- Plaintiffs’ lawyers discussed retaining attorney Gary Cohen as a consultant or co-counsel and, during those discussions, disclosed confidential information about the litigation.
- Cohen did not join the plaintiffs’ side and later joined Sonnenschein Nath & Rosenthal LLP, which ultimately represented First American in the class actions.
- Plaintiffs again contacted Cohen about assisting them; Cohen declined and stated his firm represented First American.
- When Sonnenschein substituted in as defense counsel, it implemented an ethical screen barring Cohen from working on the matters, accessing files, discussing the cases, or receiving fees tied to the litigation.
- Plaintiffs moved to disqualify Sonnenschein, arguing Cohen’s possession of their confidential information required automatic vicarious disqualification of the entire firm.
- The trial court found plaintiffs had shared confidential information with Cohen and granted the motion, ruling firm-wide disqualification was automatic despite the screen.

## Issues

1. When a lawyer who obtained material confidential information from an opposing party later joins a firm representing the adverse party, is the firm automatically vicariously disqualified?
2. If not automatic, is there a rebuttable presumption that the lawyer’s confidential knowledge is imputed to the firm, and can an ethical screen rebut that presumption?
3. If the personally disqualified lawyer later leaves the firm, what time period governs review of the screen’s adequacy?

## Decision

- The Court of Appeal reversed the disqualification order and remanded.
- The court held automatic vicarious disqualification was not required on these facts.
- The court adopted a rebuttable presumption that the disqualified lawyer’s confidential knowledge is imputed to the firm, which may be rebutted by proof of an adequate ethical screen.
- Because Cohen later left the firm, the trial court on remand was instructed to evaluate the screen’s adequacy only for the period Cohen remained at the firm.

## Legal Principles

- A lawyer who has obtained material confidential information may not undertake an adverse representation in a matter where the information would be material; the lawyer is personally disqualified.
- In firm-conflict analysis, imputation of confidences to the firm operates as a presumption rather than an irrebuttable rule in all circumstances.
- A law firm may rebut the presumption of imputation by demonstrating timely and effective screening that prevents the disqualified lawyer from participating in, accessing, discussing, or benefitting from the adverse matter.
- Disqualification doctrine balances protection of client confidences and public confidence in the profession against the hardship and disruption caused by disqualifying chosen counsel.
- Where the disqualified lawyer departs the firm, assessment of screening focuses on whether the screen prevented exposure to confidences while the lawyer was at the firm.

## Conclusion

The court rejected automatic firm-wide disqualification based solely on one lawyer’s possession of opponent confidences and required application of a rebuttable presumption approach under which a properly implemented ethical screen can permit the firm to continue the adverse representation.


Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (Ct. App. 2010)