Stanford Law School - Robert Crown Law Library

Filed 6/5/06
IN THE SUPREME COURT OF CALIFORNIA

CITY AND COUNTY OF
SAN FRANCISCO et al.,
Plaintiffs
and
Appellants,
S126397
v.
Ct.App.
1/5
A103479
COBRA SOLUTIONS, INC., et al.,
San
Francisco
County
Defendants and Respondents. )
Super. Ct. No. 417-218

A company seeking contracts for information technology services to a city
retained a small private law firm. Two attorneys in the firm provided various
services to the company, advising it about doing business with the city. Fifteen
months later, one of those attorneys successfully won election as the city attorney.
Before taking office, the new city attorney announced he would personally not
participate in any case involving a client of his former law firm.
Fifteen months after the new city attorney was sworn in, his office named
the company as a defendant in a complaint seeking damages for the city on
allegations of fraud, statutory violations, and breach of contract. The company
sought to disqualify the city attorney’s entire office, arguing that as its former
attorney he had obtained confidential information about it that precluded him, and
the public office he now headed, from representing the city against it in a matter
substantially related to the city attorney’s former representation of the company.
The trial court disqualified the city attorney and his office. The Court of Appeal
upheld that ruling in a two-to-one decision. We affirm the Court of Appeal.

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I. BACKGROUND
The facts and dates recited here are drawn from declarations and exhibits
submitted on the motion to disqualify and from a written contract between the City
and County of San Francisco (hereafter City) and Cobra Solutions and TeleCon
Ltd., two California corporations. Cobra Solutions is in the business of providing
“computer products, accessories and related professional services.” On October 1,
1998, the related entities of Cobra Solutions and TeleCon Ltd. entered into a
contract with the City—the so-called City Store Contract—which qualified them
to bid on contracts for technology goods and services provided to various City
departments, including the Department of Building Inspection.
In September 2000, Cobra Solutions retained the law firm of Kelly, Gill,
Sherburne and Herrera, seeking advice on difficulties the company had
encountered in performing a City contract with the Department of Building
Inspection (Department). According to James Brady, the president and chief
executive officer of Cobra Solutions, the law firm continued to represent it “in all
matters” until December 2001, and it also provided legal services for TeleCon “on
several occasions.”
In September of 2001, then City Attorney Louise Renne began
investigating contracts for computer services entered into by the Department. The
investigation revealed irregularities in payments made to Marcus Armstrong, a
Department employee.
On December 11, 2001, Dennis Herrera, a named partner in Kelly, Gill,
Sherburne and Herrera, was elected San Francisco City Attorney (City Attorney).
Herrera was sworn into office on January 8, 2002, and he adopted a blanket policy
of not participating in any matter involving his former law firm or any of its
clients regardless of whether he had a conflict in any particular matter. When
Herrera assumed office, the City Attorney’s investigation of Marcus Armstrong
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was already underway; results of that investigation led the City Attorney’s Office
to file a civil complaint on February 10, 2003, naming various defendants
including Armstrong and alleging causes of action arising from what was
characterized as a kickback scheme by which Armstrong received payments from
computer service providers for services they never performed.
On the same day the complaint was filed the City Attorney’s office issued a
press release under the heading, “HERRERA NAMES TOP BUILDING
DEPARTMENT OFFICIAL, TECHNOLOGY VENDORS IN MAJOR PUBLIC
CORRUPTION SUIT.” In that press release, City Attorney Herrera denounced
“Mr. Armstrong and his cronies” for betraying “a public trust,” and asserted that
“[p]ublic corruption diminishes the confidence of our citizens in their
government.” According to the press release, the lawsuit was the product of “a
yearlong investigation by the City Attorney’s Public Integrity Task Force,” which
Herrera created on taking office and which he described as a “vehicle for civil law
enforcement enabling us to aggressively pursue those who would violate the
public trust.”
Because the allegations in the City’s lawsuit implicated Armstrong in
possible criminal misconduct, the City Attorney’s Office referred the matter to the
United States Attorney for the Northern District of California. The federal
prosecutor filed criminal charges against Armstrong, who later pleaded guilty to
federal charges of mail fraud, wire fraud, and obstruction of justice.
In March 2003, the City’s investigators discovered that Armstrong had
deposited more than $240,000 in checks from Cobra Solutions into the bank
account of a fictitious business entity he created. When City Attorney Herrera
learned that the investigation implicated his former client Cobra Solutions in the
kickback scheme, he took measures to screen himself from the case to the extent
that it could involve the former client. To maintain the ethical screen, attorneys
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working on the case were directed to report to Chief Assistant City Attorney Jesse
Smith and not to discuss the case with Herrera. Those attorneys maintained
locked files and computerized records that were inaccessible to Herrera.
On April 21, 2003, the City filed an amended complaint adding Cobra
Solutions and TeleCon Ltd. as defendants. In addition to causes of action for
fraud, unfair competition, and false claims that the complaint alleged against all
defendants, it also alleged causes of action against Cobra Solutions and TeleCon
Ltd.1 for negligent misrepresentation and contractual claims arising from breach of
the City Store contract.
Cobra moved to disqualify from the litigation its former counsel Herrera
and the City Attorney’s Office he heads. In support of the motion, Cobra
submitted a bill dated April 13, 2001, showing a charge of four-tenths of an hour
attributable to Herrera’s “[r]eview of City Store contract document.” Cobra’s
president asserted that he and his employees disclosed to Gill and to Herrera
“confidential aspects of Cobra’s business” in the course of a representation that
was “broad” enough to include “advocacy with City officials,” review of
contracts, advice on corporate structure, and drafting of standard agreements,
forms, and policies. After a hearing, the trial court granted Cobra’s
disqualification motion, finding that City Attorney Herrera, while in private
practice, had personally represented defendants, and that during that representation
he had “obtained confidential information” regarding “matters related substantially
to the issues raised against defendants in this litigation.” The trial court concluded
that Herrera’s conflict must be imputed to the entire City Attorney’s Office
because “the personally-conflicted counsel is the head” of that office, and “each of

1
Cobra Solutions and TeleCon Ltd. are apparently related entities, both were
represented by Herrera’s law firm, and both brought the motion to disqualify; for
convenience we refer to them collectively as Cobra.
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his deputies serves at his pleasure,” subjecting them “necessarily to his oversight
and influence.” Accordingly, the trial court ordered the City to “retain outside
independent counsel to litigate this matter.” The City Attorney appealed.
In a two-to-one decision, the Court of Appeal upheld the trial court’s ruling.
It concluded that when “an attorney leaves private practice to become the head of
a public law office” the “vicarious disqualification of the entire public law office
generally is required in all matters substantially related to the head of the office’s
earlier private representations.” The dissenting justice saw no need to recuse the
entire government law office as long as the personally conflicted City Attorney
had been shielded by an “effective ethical screen.” The majority rejected that
view, but it acknowledged the existence of “sound reasons” against automatically
imputing the conflict of one attorney to an entire government law office. Because
it was unnecessary to reach the issue, the majority expressly refrained from
deciding whether an ethical screen might suffice to avoid office-wide
disqualification when a conflicted attorney comes from private practice into a
government law office to assume a subordinate post, but it held that when, as here,
the conflicted attorney serves as chief executive of the government law office,
disqualification of the entire office is necessary. Given the importance of these
issues, we granted review.
II. RELEVANT LAW
The authority of a trial court “to disqualify an attorney derives from the
power inherent in every court ‘[t]o control in furtherance of justice, the conduct of
its ministerial officers.’ ” (People ex rel. Dept. of Corporations v. SpeeDee Oil
Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee), quoting Code Civ.
Proc., § 128, subd. (a)(5).) “Ultimately, disqualification motions involve a
conflict between the clients’ right to counsel of their choice and the need to
maintain ethical standards of professional responsibility.” (SpeeDee, at p. 1145.)
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As we have explained, however, “[t]he paramount concern must be to preserve
public trust in the scrupulous administration of justice and the integrity of the bar.”
(Ibid.)
When disqualification is sought because of an attorney’s successive
representation of clients with adverse interests, the trial court must balance the
current client’s right to the counsel of its choosing against the former client’s right
to ensure that its confidential information will not be divulged or used by its
former counsel.
Two ethical duties are entwined in any attorney-client relationship. First is
the attorney’s duty of confidentiality, which fosters full and open communication
between client and counsel, based on the client’s understanding that the attorney is
statutorily obligated (Bus. & Prof. Code, § 6068, subd. (e)) to maintain the client’s
confidences. (SpeeDee, supra, 20 Cal.4th at p. 1146.) The second is the
attorney’s duty of undivided loyalty to the client. (People v. Flatt (1994) 9 Cal.4th
275, 282 (Flatt).) These ethical duties are mandated by the California Rules of
Professional Conduct. (Rules Prof. Conduct, rule 3-310(C) & (E).)
The interplay of the duties of confidentiality and loyalty affects the conflict
of interest rules that govern attorneys. An attorney who seeks to simultaneously
represent clients with directly adverse interests in the same litigation will be
automatically disqualified. (Flatt, supra, 9 Cal.4th at p. 284, fn. 3.) Moreover, an
attorney may not switch sides during pending litigation representing first one side
and then the other. (City of Santa Barbara v. Superior Court (2004) 122
Cal.App.4th 17, 23.) That is true because the duty to preserve client confidences
(Bus. & Prof. Code, § 6068, subd. (e)) survives the termination of the attorney’s
representation. (SpeeDee, supra, 20 Cal.4th at p. 1147.)
That enduring duty to preserve client confidences precludes an attorney
from later agreeing to represent an adversary of the attorney’s former client unless
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the former client provides an “informed written consent” waiving the conflict.
(Rules Prof. Conduct, rule 3-310(E).) If the attorney fails to obtain such consent
and undertakes to represent the adversary, the former client may disqualify the
attorney by showing a “ ‘substantial relationship’ ” between the subjects of the
prior and the current representations. (Flatt, supra, 9 Cal.4th at p. 283.) To
determine whether there is a substantial relationship between successive
representations, a court must first determine whether the attorney had a direct
professional relationship with the former client in which the attorney personally
provided legal advice and services on a legal issue that is closely related to the
legal issue in the present representation. (Jessen v. Hartford Casualty Ins. Co.
(2003) 111 Cal.App.4th 698, 710-711.) If the former representation involved such
a direct relationship with the client, the former client need not prove that the
attorney possesses actual confidential information. (Id. at p. 709.) Instead, the
attorney is presumed to possess confidential information if the subject of the prior
representation put the attorney in a position in which confidences material to the
current representation would normally have been imparted to counsel. (Flatt,
supra, 9 Cal.4th at p. 283; Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th
1324, 1332; H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229
Cal.App.3d 1445, 1453-1454.) When the attorney’s contact with the prior client
was not direct, then the court examines both the attorney’s relationship to the prior
client and the relationship between the prior and the present representation. If the
subjects of the prior representation are such as to “make it likely the attorney
acquired confidential information” that is relevant and material to the present
representation, then the two representations are substantially related. (Jessen v.
Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at p. 711; see Farris v.
Fireman’s Fund Ins. Co. (2004) 119 Cal.App.4th 671, 680 [material confidential
information is that which is “directly at issue in” or has “some critical importance
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to, the second representation”].) When a substantial relationship between the two
representations is established, the attorney is automatically disqualified from
representing the second client. (Flatt, supra, 9 Cal.4th at p. 283; see Hazard and
Hodes, The Art of Lawyering (3d ed. 2000 & 2005-2 supp.) § 13.5, pp. 13-12—
13-13.)
Although the rules governing the ethical duties that an attorney owes to
clients are set out in the California Rules of Professional Conduct, those rules do
not address when an attorney’s personal conflict will be imputed to the attorney’s
law firm resulting in its vicarious disqualification. Vicarious disqualification rules
are a product of decisional law. (Henriksen v. Great American Savings & Loan
(1992) 11 Cal.App.4th 109, 114.) Normally, an attorney’s conflict is imputed to
the law firm as a whole on the rationale “that attorneys, working together and
practicing law in a professional association, share each other’s, and their clients’,
confidential information.” (SpeeDee, supra, 20 Cal.4th at pp. 1153-1154, fn.
omitted.) Here we consider whether the judicially created rule requiring vicarious
disqualification of an entire law firm should apply to a government law office
when the head of that office has a conflict because that attorney previously, while
in private practice, represented a client that is now being sued by the government
entity in a matter substantially related to the attorney’s prior representation.
III. ANALYSIS
The trial court found, and it is undisputed here, that City Attorney Herrera
had a conflict based on his having previously represented, in private practice, the
Cobra defendants “during which representation he obtained confidential
information” from them “in matters related substantially to the issues raised
against [them] in this litigation.” The trial court further found that each of the City
Attorney’s deputies “serves at [the] pleasure” of the City Attorney and thus “is
subject necessarily to his oversight and influence.”
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“Generally, a trial court’s decision on a disqualification motion is reviewed
for abuse of discretion. [Citations.] If the trial court resolved disputed factual
issues, the reviewing court should not substitute its judgment for the trial court’s
express or implied findings supported by substantial evidence. [Citations.] When
substantial evidence supports the trial court’s factual findings, the appellate court
reviews the conclusions based on those findings for abuse of discretion.
[Citation.] However, the trial court’s discretion is limited by the applicable legal
principles. [Citation.] Thus, where there are no material disputed factual issues,
the appellate court reviews the trial court’s determination as a question of law.
[Citation.]” (SpeeDee, supra, 20 Cal.4th at pp. 1143-1144.) Here there is no
factual dispute, and we review independently the Court of Appeal’s legal
conclusion that the City Attorney’s personal conflict is properly imputed to the
Office of the City Attorney and requires its disqualification.
The City contends that the vicarious disqualification of its entire city
attorney’s office is neither compelled nor justified by prior court decisions
involving government law offices. It relies on People v. Christian (1996) 41
Cal.App.4th 986 (Christian). There the Court of Appeal held there was no actual
conflict when two attorneys, both supervised by the Contra Costa County Public
Defender, in a joint trial represented two criminal codefendants who had
potentially conflicting interests. (Id. at p. 1001.) The public defender oversaw
two independent government law offices—the public defender’s office and an
alternate defender’s office. (Id. at p. 992.) Although the public defender was the
titular head of the alternate defender’s office, he did not supervise or evaluate
alternate defender attorneys, did not initiate their promotion or discipline, and he
had no access to its client files or confidences. (Id. at pp. 992-993, 999.)
Concluding that the organization and operation of the two defenders’ offices made
them, in effect, separate law firms (see Rules Prof. Conduct, rule 1-100(B)(1)(d)
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[“law firm” includes “a publicly funded entity which employs more than one
lawyer to perform legal services”]), the Court of Appeal rejected the view that the
simultaneous representation of codefendants by the public defender and the
alternate defender created a conflict, because the county public defender was also
the titular head of the alternate defender’s office. (Christian, supra, at p. 1000.)
Given the public defender’s limited control of the alternate defender’s office in
Christian, we reject the City’s argument that the attorneys in Christian were
“attorneys within the same government office.”
In an analogous case, Castro v. Los Angeles County Bd. of Supervisors
(1991) 232 Cal.App.3d 1432 (Castro) a single executive director headed a
nonprofit corporation with three separate public law units providing service to
parents and children in dependency proceedings. The Court of Appeal in Castro
concluded that there would be no conflict if attorneys from each unit were to
simultaneously represent clients from a single family whose interests were
divergent. (Id. at pp. 1439, 1441-1444.) In Castro the autonomy of each law unit
was ensured because the chief attorney in each unit initiated hiring, firing, and
salary changes for that unit’s attorneys. (Id. at p. 1438.) In both Castro and
Christian, supra, 41 Cal.App.4th 986, the separate law units under a single
governmental umbrella operated as separate law firms independent of parallel
units also sheltered under that umbrella. Both Castro and Christian addressed
conflicts arising from simultaneous representation, unlike the successive
representation conflict before us. But both cases were decided in the wake of the
Court of Appeal’s decision in Younger v. Superior Court (1978) 77 Cal.App.3d
892 (Younger).
Younger was a successive representation case in which the Court of Appeal
upheld the disqualification of the entire Los Angeles County District Attorney’s
Office in the prosecution of a criminal defendant. (Younger, supra, 77 Cal.App.3d
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at pp. 896-897.) The defendant had been represented by the law firm of Johnnie
L. Cochran, Jr., who was later appointed assistant district attorney, making him
one of “three top executives” supervising “more than 550” deputy attorneys. (Id.
at pp. 894-895.) When Cochran assumed his new post, the district attorney’s
office adopted procedures designed to screen Cochran from making crucial
decisions, such as whether to settle a case, or whether to seek the death penalty in
a capital case, whenever it involved a defendant formerly represented by the
Cochran law firm. (Id. at p. 895, fn. 3.)
Notwithstanding the ethical screen erected between Cochran and the
prosecution of defendants formerly represented by his law firm, the Court of
Appeal upheld the vicarious disqualification of the entire Los Angeles County
District Attorney’s Office. It noted that Cochran’s “presence” in a job “near the
top” of the office’s hierarchy “could possibly affect” the office’s prosecution of
his firm’s former clients. (Younger, supra, 77 Cal.App.3d at p. 897.) Pointing
specifically to Cochran’s role in formulating prosecutorial policies, it expressed
concern that even seemingly unrelated policy decisions could impact the
prosecution of these cases. (Ibid.) In addition, Cochran’s role in the appraisal and
promotion of deputies necessarily required him to evaluate the performance of
deputies prosecuting his firm’s former clients. The Court of Appeal explained:
“A deputy handling one or more of such cases would not in all probability forget
Cochran’s former professional association” with the defense of those cases.
(Ibid.) Even absent any impropriety, the Court of Appeal cautioned, public
perception of the prosecutor’s integrity and impartiality would be at risk unless the
entire office was disqualified. (Ibid.)
The disqualification standard that the Court of Appeal applied in Younger
no longer controls criminal prosecutions because the Legislature in 1980 enacted
Penal Code section 1424 (Stats. 1980, ch. 780, § 1, p. 2373), which provides for
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the recusal of local prosecuting agencies only when “the evidence shows that a
conflict of interest exists that would render it unlikely that the defendant would
receive a fair trial.” (Pen. Code, § 1424, subds. (a)(1) & (b)(1).) Section 1424 is
inapplicable to this case, which is a civil action. Although the statute, which
triggers disqualification of a prosecutor from a criminal proceeding “only if” the
conflict is “ ‘so grave as to render it unlikely that [the] defendant will receive fair
treatment’ ” (People v. Griffin (2004) 33 Cal.4th 536, 569), has superseded
Younger’s holding (see People v. Conner (1983) 34 Cal.3d 141, 147), the concerns
that the Court of Appeal in Younger expressed about conflicted heads of public
law offices, whose policymaking and supervisory duties are such as to preclude
them from being effectively screened, have not lost their relevance.2
As this court has explained in the past, there are both societal and personal
interests at stake when an attorney and the attorney’s private or public law firm is
disqualified. (SpeeDee, supra, 20 Cal.4th at p. 1145.) The societal interests at
stake include preserving high ethical standards for every attorney, each of whom is
obliged to preserve client confidences and whose failure to do so undermines
public confidence in the judicial system. (Ibid.) Attorneys who head public law
offices shoulder additional ethical obligations assumed when they become public
servants. They possess “such broad discretion” that the public “may justifiably

2
We do not decide, because the issue is not before us, whether ethical
screening might suffice to shield a senior supervisory attorney with a personal
conflict and thus avoid vicarious disqualification of the entire government legal
unit under that attorney’s supervision. In ruling on such a motion, the trial court
should undertake a factual inquiry into the actual duties of the supervisor with
respect to those attorneys who will be ethically screened and to the supervisor’s
responsibility for setting policies that might bear on the subordinate attorneys’
handling of the litigation. In addition, the trial court should consider whether
public awareness of the case, or the conflicted attorney’s role in the litigation, or
another circumstance is likely to cast doubt on the integrity of the governmental
law office’s continued participation in the matter.
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demand” that they exercise their duties consistent “with the highest degree of
integrity and impartiality, and with the appearance thereof.” (People v. Superior
Court (Greer) (1977) 19 Cal.3d 255, 266-267 [disqualification of conflicted
district attorney].)
Vicarious disqualification also has an impact on the personal interests of a
conflicted attorney’s current and former clients. Current clients have a right to
retain their chosen counsel, and they will bear the financial burden when their
chosen counsel is disqualified—a burden that an opponent may desire in order to
gain a tactical advantage in the litigation. (SpeeDee, supra, 20 Cal.4th at p. 1145.)
With respect to former clients, they have an overwhelming interest in preserving
the confidentiality of information they imparted to counsel during a prior
representation. That interest is imperiled when counsel later undertakes
representation of an adversary in a matter substantially related to counsel’s prior
representation of the former client.
The burdens of disqualification are heavy both for private sector and public
sector clients. When an entire government law office is disqualified, the
government inevitably incurs the added cost of retaining private counsel (In re Lee
G. (1991) 1 Cal.App.4th 17, 28), the delay such substitution entails, and in certain
types of litigation it may also lose the specialized expertise of its in-house
attorneys, hampering its ability to protect the public’s interest. (See e.g., City of
Santa Barbara v. Superior Court, supra, 122 Cal.App.4th at p. 23, fn. 1 [city
attorney’s office possessed specialized expertise in the law of sewer construction
and maintenance].) Greater legal costs caused by hiring private sector attorneys
raise the specter “that litigation decisions will be driven by financial
considerations,” not by the public interest. (Id. at p. 25.) And when a government
law office is disqualified, the expense of that disqualification is ultimately paid by
the taxpayers.
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Other burdens caused by vicarious disqualification are cited by the
Attorney General, appearing as amicus curiae on behalf of the City.3 He argues
that office-wide disqualification hampers recruiting by government law offices of
“ ‘the most promising class of young lawyers.’ ” (Chambers v. Superior Court
(1981) 121 Cal.App.3d 893, 900.) He further asserts that vicarious
disqualification impugns the integrity of government attorneys by implicitly
assuming they will violate the confidences of former clients.
Citing these burdens on government, both the City and its amicus, the
Attorney General, urge us to hold that whenever a conflicted attorney enters
government service, that attorney’s conflict should not result in vicarious
disqualification of the government law office the attorney joins. Instead, they
argue, screening the conflicted attorney from matters involving the attorney’s
former clients—such as the screening of the City Attorney that occurred here—
will suffice to protect client confidentiality.
Ethical screening is the approach adopted by the American Bar Association
(ABA), whose Model Rules of Professional Conduct require “a lawyer currently
serving as a public officer or employee” not to “participate in a matter in which
the lawyer participated personally and substantially while in private practice.”
(ABA Model Rules Prof. Conduct, rule 1.11(d)(2)(i).) Indeed, the ABA Model
Rules have long included rules specifically directed to government lawyers and to
their conflicts arising from successive representation. As the comment to rule
1.11(d) explains, “[b]ecause of the special problems raised by imputation within a
government agency,” the rule “does not impute the conflicts of a lawyer currently”

3
The Attorney General argues in favor of screening with “ethical walls to
avoid conflicts” within government offices in general, but he expressly has taken
no position on the ethical screening the City Attorney’s Office in this case used to
screen the City Attorney from his deputies.
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in government service “to other associated government” lawyers, “although
ordinarily it will be prudent to screen such lawyers.” (Id., com. [2].) Thus, under
the ABA Model Rules the taint of a conflicted attorney who moves into
government employment is not imputed to the government law office in which the
attorney now practices. (See Hazard & Hodes, The Art of Lawyering, supra,
§ 14.5, p. 14-13; id., § 15.3, p. 15-10 [“[W]oodenly applying the automatic
imputation rule that usually governs private law firms would be impractical and
against the public interest.”].)
California has not adopted the ABA Model Rules (General Dynamics
Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190, fn. 6), although they may
serve as guidelines absent on-point California authority or a conflicting state
public policy (State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644,
656). California, in contrast to the ABA, has not adopted separate Rules of
Professional Conduct applicable to government lawyers, but it has addressed
government law office conflict problems through judicial decisions.
When an attorney leaves private practice for a government law office,
California courts have upheld the ethical screening of that attorney within the
government office to protect confidences the attorney obtained from the former
client in a prior representation. For example, in City of Santa Barbara v. Superior
Court, supra, 122 Cal.App.4th 17, an attorney while in private practice
represented a homeowner until the attorney left her law firm to join a municipal
law office that was litigating the same case against the attorney’s former client.
The Court of Appeal upheld an ethical screen isolating the incoming attorney and
permitting the municipal law office to continue representing the city. (Id. at pp.
26-27.) And in Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, an
attorney in a county public defender’s office left to join the local district attorney’s
office, where he was ethically screened from any involvement with his prior cases.
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The Court of Appeal concluded that the attorney’s personal conflict should not be
imputed to disqualify the entire district attorney’s office. (Id. at pp. 116-119.) In
both these cases, however, the attorney who was subject to ethical screening was
simply one of the attorneys in the government office, not, as here, the City
Attorney under whom and at whose pleasure all deputy city attorneys serve.
Justifications that the City here advances for ethical screening instead of
disqualification of the entire City Attorney’s office appear overstated. Like the
Court of Appeal majority, we are not persuaded that competent attorneys in
private practice will be discouraged from running for or seeking appointment to
posts such as city attorney because their prior private representations might result
in disqualification of the entire city attorney’s office. Moreover, it is possible that
a specific candidate’s potential for causing vicarious disqualification of the city
attorney’s office could legitimately become a campaign issue. If so, the city’s
citizens who will pay for hiring outside counsel will be able to make an informed
choice at the polls. Typically such government law offices litigate many cases,
and office-wide disqualification from one case is unlikely to significantly impair
the office’s overall operations. That is certainly so here, where the City
Attorney’s role in advising City agencies is at least as great as his role in litigating
on behalf of the City.
Individuals who head a government law office occupy a unique position
because they are ultimately responsible for making policy decisions that determine
how the agency’s resources and efforts will be used. Moreover, the attorneys who
serve directly under them cannot be entirely insulated from those policy decisions,
nor can they be freed from real or perceived concerns as to what their boss wants.
The power to review, hire, and fire is a potent one. Thus, a former client may
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legitimately question whether a government law office, now headed by the client’s
former counsel, has the unfair advantage of knowing the former client’s
confidential information when it litigates against the client in a matter
substantially related to the attorney’s prior representation of that client.
There is another reason to require the disqualification of the conflicted head
of a government law office. That reason arises from a compelling societal interest
in preserving the integrity of the office of a city attorney. It is beyond dispute that
the citizens of a city are entitled to a city attorney’s office that unreservedly
represents the city’s best interests when it undertakes litigation. Public perception
that a city attorney and his deputies might be influenced by the city attorney’s
previous representation of the client, at the expense of the best interests of the city,
would insidiously undermine public confidence in the integrity of municipal
government and its city attorney’s office.
It was a cruel irony that City Attorney Herrera, who on assuming office
avowedly undertook to fight public corruption, later learned that a client whom he
had represented while in private practice was an apparent participant in a kickback
scheme designed to defraud the City. We have no reason whatsoever to believe
that City Attorney Herrera knew of or suspected his former client Cobra’s possible
involvement in the scheme as of February 10, 2003, when the City filed its
original complaint. Nonetheless, for the reasons explained in this opinion, not
only the City Attorney but his entire office must in this case be disqualified.
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DISPOSITION
The judgment of the Court of Appeal upholding the disqualification of the
Office of the City Attorney of San Francisco is affirmed.
KENNARD,
J.
WE CONCUR:

BAXTER, J.
CHIN, J.
MORENO, J.
EPSTEIN, J.*

*
Presiding Justice, Court of Appeal, Second Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6, of the
California Constitution.
18

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DISSENTING OPINION BY CORRIGAN, J.

Must an entire government law office be disqualified whenever the office
head has a conflict because he or she previously represented a client in private
practice? Disqualification would certainly be appropriate in some circumstances,
but I do not agree it should be automatic. In my view, such a rigid rule needlessly
burdens the public. Sound public policy considerations weigh against automatic
disqualification. These considerations include the cost of employing outside
counsel, which may cause some government law offices to forgo meritorious
cases; the concern that similar cases reflecting a general policy could be handled
inconsistently; and the disincentive for top-level private practitioners to seek, and
for voters to elect them to, positions as leaders of government law offices. I would
allow the trial court to determine on a case-by-case basis the adequacy of the
screening procedures undertaken by the government law office. In exercising its
discretionary review, the trial court shoud consider all relevant factors, including
the degree of involvement of the office head with the former client,1 the size of the
government law office, and the nature of the current suit.
The automatic disqualification rule arose in the context of private practice,
at a time when it was relatively uncommon for attorneys to move from one firm to

1
The fact that Mr. Herrera billed Cobra Solutions for only 24 minutes of his
time (maj. opn., ante, at p. 4) suggests that his degree of involvement with the
“City Store” contract was minimal.
1

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another. Thus, the rule’s burdens were relatively light. Now, however, attorney
mobility and firm mergers have increased exponentially. Accordingly, the
automatic disqualification rule is being questioned even in the private practice
context. “The vicarious disqualification of an entire firm can work harsh and
unjust results, particularly in today’s legal world where lawyers change
associations more freely than in the past. A rule that automatically disqualifies a
firm in all cases substantially related to the tainted lawyer’s former representation
could work a serious hardship for the lawyer, the firm and the firm’s clients. . . .
[¶] . . . [¶] We would nevertheless accept the costs of automatic disqualification, if
it were the only way to ensure that lawyers honor their duties of confidentiality
and loyalty. But it is not. A client’s confidences can also be kept inviolate by
adopting measures to quarantine the tainted lawyer. An ethical wall, when
implemented in a timely and effective way, can rebut the presumption that a
lawyer has contaminated the entire firm. . . . [¶] . . . [¶] The changing realities of
law practice call for a more functional approach to disqualification than in the
past.” (In re County of Los Angeles (9th Cir. 2000) 223 F.3d 990, 996 (maj. opn.
by Kozinski, J.).)
The question whether the disqualification of an attorney should be imputed
to the entire government legal office that lawyer joins has been addressed by the
American Bar Association (ABA) in a formal ethics opinion. The ABA declined
to extend the automatic disqualification rule because “the government’s ability to
function would be unreasonably impaired.” (ABA, Com. on Ethics & Prof.
Responsibility, Formal Opn. No. 342 1975.) The ABA explained, “The
relationships among lawyers within a government agency are different from those
among partners and associates of a law firm. The salaried government employee
does not have the financial interest in the success of departmental representation
that is inherent in private practice. The important difference in the adversary
2

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posture of the government lawyer is recognized by Canon 7: the duty of the
public prosecutor to seek justice, not merely to convict, and the duty of all
government lawyers to seek just results rather than the result desired by a client.
The channeling of advocacy toward a just result as opposed to vindication of a
particular claim lessens the temptation to circumvent the disciplinary rules through
the action of associates. . . . Although vicarious disqualification of a government
department is not necessary or wise, the individual lawyer should be screened
from any direct or indirect participation in the matter, and discussion with his
colleagues concerning the relevant transaction or set of transactions is prohibited
by those rules.” (Ibid.)
The majority correctly observes that California has not adopted the ABA
Model Rules of Professional Conduct. (Maj. opn., ante, p.15.) However, the
public policy considerations relied upon by the ABA are persuasive, and a leading
text confirms that the ABA’s position is well accepted throughout the country.
“[ABA] Model Rule 1.10(a) and most comparable state rules do not impute an
individual government lawyer’s disqualification to all other members of this
special kind of ‘firm.’ . . . [¶] . . . [W]oodenly applying the automatic imputation
rule that usually governs private law firms would be impractical and against the
public interest. A government legal department—unlike a private firm—cannot
simply forgo litigating certain cases. Thus, if the ordinary imputation rules
applied, the department would either have to select lawyer-employees with limited
prior legal experience, or expend money hiring special counsel to litigate the
affected cases” (1 Hazard & Hodes, The Law of Lawyering (3d ed. 2005 supp.)
§ 15.3, p. 15-10, fn. omitted.)
In California, case law extending the automatic disqualification rule to
prosecutors’ offices was nullified by the Legislature. In Younger v. Superior
Court (1978) 77 Cal.App.3d 892, the Court of Appeal disqualified an entire
3

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district attorney’s office because of an appearance of impropriety created by the
fact that a newly appointed supervising district attorney had once been a member
of the firm representing the defendant. In response to Younger and other cases, the
Legislature enacted Penal Code section 1424. (People v. Eubanks (1996) 14
Cal.4th 580, 591.) Under that provision, a district attorney or a city attorney may
not be disqualified unless the evidence establishes a conflict of interest that would
render a fair trial unlikely. The majority correctly notes that section 1424 does not
apply in a civil action. (Maj. opn., ante, at p. 12.) However, as we attempt to
balance competing public policies we should not ignore the balance struck by the
Legislature in section 1424. Certainly, the interest in evenhanded administration
of justice is at least as weighty in a criminal case, where life or liberty is at stake,
as it is in a civil action for monetary damages.
For the reasons stated, I would reverse the judgment of the Court of Appeal
upholding the disqualification of the Office of the City Attorney of San Francisco.
CORRIGAN, J.
I CONCUR:
GEORGE, C.J.
4

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion City and County of San Francisco v. Cobra Solutions, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 119 Cal.App4.th 304
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S126397
Date Filed: June 5, 2006
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Donald S. Mitchell

__________________________________________________________________________________

Attorneys for Appellant:

Dennis J. Herrera, City Attorney, Jesse C. Smith, Chief Assistant City Attorney, Therese M. Stewart, Chief
Deputy City Attorney, Claire Sylvia and Ellen Forman, Deputy City Attorneys, for Plaintiffs and
Appellants.

Bill Lockyer, Attorney General, Jacob Appelsmith, Assistant Attorney General, Barbara J. Seidman and
Kenneth L. Swenson, Deputy Attorneys General, as Amici Curiae on behalf of Plaintiffs and Appellants.

Ann Miller Ravel, County Counsel (Santa Clara) and Lizanne Reynolds, Deputy County Counsel, for
County of Santa Clara, California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Plaintiffs and Appellants.

Steven M. Woodside, County Counsel (Sonoma) for California State Association of Counties and League
of California Cities as Amici Curiae on behalf of Plaintiffs and Appellants.

Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Edward P. Lazarus and Seth M. M. Stodder for
Children’s Law Center of Los Angeles as Amicus Curiae on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Keker & Van Nest, Gonzalez & Leigh, Ethan A. Balogh, G. Whitney Leigh, Nima Nami, Bryan W.
Vereschagin, Rita A. Hao, Juan Enrique Pearce and Eumi K. Lee for Defendants and Respondents.

David C. Coleman, Public Defender (Contra Costa) and Ron Boyer, Deputy Public Defender, for California
Public Defenders Association as Amici Curiae.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Claire Sylvia
Deputy City Attorney
1 Dr. Carlton B. Goodlett Pl., Rm. 234
San Francisco, CA 94102
(415) 554-4700

G. Whitney Leigh
Gonzalez & Leigh
Two Shaw Alley, Third Floor
San Francisco, CA 94105
(415) 512-2000

---

Opinion Information

Date:	Docket Number:
Mon, 06/05/2006	S126397

Disposition
Jun 5 2006	Opinion: Affirmed

Dockets
Jul 16 2004	Petition for review filed   By aplts
Jul 27 2004	Received Court of Appeal record   file jacket/briefs/appendices/accordian file
Aug 5 2004	Answer to petition for review filed   by counsel for respondents (Cobra Solutions, Inc. and Telcon LTD, Inc.).
Aug 13 2004	Reply to answer to petition filed   by aplts
Aug 25 2004	Petition for review granted (civil case)   Werdegar, J., was recused and did not participate. Votes: George, C.J., Kennard, Chin, and Brown, JJ.
Aug 25 2004	Letter sent to:   Conflicts letter & form sent to counsel.
Sep 9 2004	Certification of interested entities or persons filed   by counsel for respondents (Cobra Solutions, Inc & TeleCon Ltd.).
Sep 14 2004	Certification of interested entities or persons filed   by counsel for appellants.
Sep 23 2004	Opening brief on the merits filed   by counsel for appellants (City and County of San Francisco, et al.).
Oct 25 2004	Answer brief on the merits filed   by counsel for respondents (Cobra Solutions, Inc. and Telecon LTD, Inc.).
Oct 25 2004	Request for judicial notice filed (granted case)   by counsel for respondents.
Nov 15 2004	Reply brief filed (case fully briefed)   by counsel for appellants.
Dec 13 2004	Received application to file Amicus Curiae Brief   by California Public Defenders Association. Not specifically in support of any party.
Dec 13 2004	Received application to file Amicus Curiae Brief   by The California State Assoc. of Counties and League of California Cities in support of appellants.
Dec 15 2004	Received application to file Amicus Curiae Brief   Children's Law Center of Los Angeles
Dec 15 2004	Amicus curiae brief filed   by Attorney General Bill Lockyer in support of appellant City and County of San Francisco. (recv'd in Sacto) (filed pursuant to rule 29.1(f)(7))
Dec 16 2004	Permission to file amicus curiae brief granted   California Public Defenders Association.
Dec 16 2004	Amicus curiae brief filed   by California Public Defenders Association. Answer due by any party within 20 days.
Dec 16 2004	Permission to file amicus curiae brief granted   The California State Assoc. of Counties and League of California Cities
Dec 16 2004	Amicus curiae brief filed   by The California State Assoc. of Counties and League of California Cities in support of appellants. Answer due by any party within 20 days.
Dec 27 2004	Filed:   Supplemental Proof of Service from counsel for amicus curiae Children's Law Center of Los Angeles.
Dec 27 2004	Permission to file amicus curiae brief granted   Children's Law Center of Los Angeles
Dec 27 2004	Amicus curiae brief filed   Children's Law Center of Los Angeles in support of appellants. Answer due within twenty days.
Dec 29 2004	Request for extension of time filed   Respondents requesting a 14 day extension to file their answers to amicus briefs.
Jan 5 2005	Extension of time granted   to and including January 18, 2005 for respondents to file the answer to amicus curiae brief filed by the Attorney General.
Jan 5 2005	Extension of time granted   to and including January 19, 2005 for respondents to file the answer to amicus curiae brief filed by the California Public Defenders Assoc. and the California State Association of Counties and League of Cities.
Jan 14 2005	Response to amicus curiae brief filed   by resps to the A/C brief of Children's Law Center of L.A. *Certificate of word count recv'd 1/20/05.
Jan 18 2005	Response to amicus curiae brief filed   by resp to the A/C brief of Attorney General. *Certificate of word count recv'd 1/20/05.
Jan 19 2005	Response to amicus curiae brief filed   by resp to the A/C brief of California Public Defenders Assoc. *Certificate of word count recv'd 1/20/05.
Jan 19 2005	Response to amicus curiae brief filed   by respondent to the A/C brief of California State Association of Counties and League of California Cities. *Certificate of word count recv'd 1/20/05.
Dec 12 2005	Notice of substitution of counsel   Gonzalez & Leigh, LLP substituted in place of Keker & Van Nest, LLP for Cobra Solutions, Inc., Defendant and Respondent
Feb 8 2006	Case ordered on calendar   March 8, 2006, at 1:30 p.m., in San Francisco Werdegar, J., not participating; Epstein, J., assigned justice pro tempore.
Feb 21 2006	Filed:   Stipulation re participation of Justice Ming W. Chin filed by G. Whitney Leigh, counsel for respondents Cobra Solutions and Telecon, Ltd. "... hereby consents to Justice Ming W. Chin's participation by reviewing the complete tape recording of the oral argument ..., as well as by considering all of the written materials in the case."
Feb 21 2006	Filed letter from:   Therese Stewart, Chief Deputy City Attorney, on behalf of appellant City & County of San Francisco "The City and County of San Francisco stipulates to Justice Ming Chin participating in [this case] even though he will not be present at oral argument."
Feb 21 2006	Change of contact information filed for:   Claire Sylvia, counsel for City & County of San Francisco.
Mar 8 2006	Cause argued and submitted
May 19 2006	Request for judicial notice denied   The request of Cobra Solutions for Judicial Notice, filed in this court October 25, 2004, is denied.
Jun 5 2006	Opinion filed: Judgment affirmed in full   OPINION BY: Kennard, J. -- joined by: Baxter, Chin, Moreno, and Epstein, JJ. DISSENTING OPINION BY: Corrigan, J. -- joined by: George, C.J.
Jul 11 2006	Remittitur issued (civil case)
Jul 17 2006	Received:   Receipt for Remittitur from 1CA5

Briefs
Sep 23 2004	Opening brief on the merits filed
Oct 25 2004	Answer brief on the merits filed
Nov 15 2004	Reply brief filed (case fully briefed)
Dec 15 2004	Amicus curiae brief filed
Dec 16 2004	Amicus curiae brief filed
Dec 16 2004	Amicus curiae brief filed
Dec 27 2004	Amicus curiae brief filed
Jan 14 2005	Response to amicus curiae brief filed
Jan 18 2005	Response to amicus curiae brief filed
Jan 19 2005	Response to amicus curiae brief filed
Jan 19 2005	Response to amicus curiae brief filed

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