Peter Holm v. City of Barstow et al

Filing 41

ORDER by Judge Virginia A. Phillips, granting MOTION to Disqualify Counsel Steven Brock and firm of Lackie and Dammeier (Plaintiff's counsel) 33 . Lackie is directed to cease all representation of Plaintiff and to turn over all files relating to the prosecution of Plaintiff's action. (See document for further specifics) (mrgo) Modified on 9/17/2008 (mrgo).

1 2 3 4 5 6 7 8 9 10 11 PETER HOLM, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) ) v. ) ) CITY OF BARSTOW, a ) municipal corporation; ) CALEB L. GIBSON, ) individually and as ) Chief of Police for the ) Barstow Police ) Department; RUDY ) ALCANTARA, individually ) and as a Lieutenant for ) the Barstow Police ) Department; KEITH LIBBY, ) individually and as a ) Sergeant for the Barstow ) Police Department; and ) DOES 1 through 100, ) ) Defendants. ) ________________________ ) Case No. EDCV 08-420-VAP (JCx) [Motion filed on August 21, 2008] ORDER GRANTING DEFENDANT HOLM'S MOTION TO DISQUALIFY COUNSEL STEVEN BROCK AND THE LAW FIRM LACKIE, DAMMEIER & MCGILL APC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Defendant Libby's Motion to Disqualify Counsel Steven Brock and the law firm Lackie, Dammeier & McGille APC came before the Court for hearing on September 15, 2008. The parties chose not to advance arguments at the hearing, and submitted on the Court's tentative ruling to

1 grant the Motion. 3 GRANTS the Motion. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

After considering all papers filed in

2 support of, and in opposition to, the Motion, the Court

I. BACKGROUND On February 28, 2008, Plaintiff Peter Holm filed his Complaint ("Compl.") in the California Superior Court for the County of San Bernardino, naming as Defendants the City of Barstow and three individual defendants, including Keith Libby ("Libby"), both individually and as the Sergeant for the Barstow Police Department. Plaintiff alleged the following claims: (1) "whistleblower retaliation," Cal. Lab. Code § 1102.5; (2) "whistleblower retaliation," Cal. Gov. Code § 53298; (3) wrongful termination in violation of public policy; (4) civil harassment; and (5) violation of 42 U.S.C. § 1983. Defendants removed the case to the U.S. District Court on March 28, 2008 on the basis of federal question jurisdiction, 28 U.S.C. § 1331. On August 21, 2008, Libby filed a motion to disqualify counsel Steven Brock and the law firm of Lackie, Dammeier & McGill APC ("Mot."), the declaration of Keith D. Libby ("Libby Decl."), and the Declaration of G. Arthur Meneses ("Meneses Decl."). Plaintiff filed his Opposition ("Opp'n") on August 29, 2008 and attached the Declarations of Steven J. Brock ("Brock Decl.") and Dieter Dammeier ("Dammeier Decl.").
2

Libby filed his

1 reply on September 9, 2008, as well as the Declaration of 2 G. Arthur Meneses ("Meneses Reply Decl.") and objections 3 to the Dammeier and Brock Declarations. 4 5 6 8 9 A. 10 Objections to Brock Declaration In his first objection, Libby objects to lines 1-4, II. Libby's Evidentiary Objections Libby filed several evidentiary objections to the

7 Brock and Dammeier Declarations.

11 26-28 of ¶ 19 of Brock's declaration, regarding the facts 12 underlying Libby's 2003 case, on the grounds of: (1) 13 "lack of foundation, including failure to demonstrate 14 personal knowledge;" (2) "speculative;" (3) "conclusory;" 15 and, (4) "irrelevant and immaterial." 16 overrules this objection. 17 18 In his second objection, Libby objects to lines 8-17 19 of ¶ 28 of Brock's declaration, which elaborate on 20 Lackie's legal field of specialization, on the grounds 21 of: (1) "argumentative;" (2) "conclusory;" (3) "improper 22 legal conclusion;" and (4) "lack of foundation, including 23 failure to demonstrate personal knowledge." 24 sustains this objection. 25 /// 26 /// 27 28
3

The Court

The Court

1

In his third objection, Libby objects to lines 18-26

2 of ¶ 29 of Brock's declaration, which recount Lackie's 3 legal experience, on the grounds of: (1) "argumentative;" 4 (2) "conclusory;" (3) "improper legal conclusion;" and 5 (4) "lack of foundation, including failure to demonstrate 6 personal knowledge." 7 8 In his fourth objection, Libby objects to lines 1-4, 9 27-28 of ¶ 30 of Brock's declaration, which states the 10 prejudice to Plaintiff if Lackie is disqualified, on the 11 grounds of: (1) "argumentative;" (2) "conclusory;" (3) 12 "improper legal conclusion;" and (4) "lack of foundation, 13 including failure to demonstrate personal knowledge." 14 The Court sustains this objection. 15 16 In his fifth objection, Libby objects to line 5 of ¶ 17 31 of Brock's declaration, which states that Libby is not 18 a current client of Lackie's, on the grounds of: (1) 19 "argumentative;" (2) "improper legal conclusion;" (3) 20 "lack of foundation, including failure to demonstrate 21 personal knowledge." 22 23 In his sixth objection, Libby objects to lines 14-18 24 of ¶ 33 of Brock's declaration, which states that Lackie 25 does not represent Libby on any matter through the Legal 26 Defense Fund, on the grounds of: (1) "improper legal 27 conclusion;" (2) "argumentative;" (3) "lack of 28
4

The Court sustains this objection.

The Court overrules this objection.

1 foundation, including failure to demonstrate personal 2 knowledge." 3 4 B. 5 Objections to Dammeier Declaration In his first objection, Libby objects to lines 19-21 The Court overrules this objection.

6 of ¶ 6 of Dammeier's declaration, which state Dammeier 7 did not possess confidential information regarding 8 Libby's 2003 case, on the grounds of: (1) "irrelevant and 9 immaterial;" (2) "lack of foundation, including failure 10 to demonstrate personal knowledge;" and, (3) "improper 11 legal conclusion." 12 13 In his second objection, Libby objects to lines 22-24 14 of ¶ 7 of Dammeier's declaration, which state that he had 15 spoken with Libby in the past, on the grounds of: (1) 16 "irrelevant;" and (2) "lack of foundation, including 17 failure to demonstrate personal knowledge...." 18 overrules this objection. 19 20 In his third objection, Libby objects to lines 25-27 21 of ¶ 8 of Dammeier's declaration, which state Mr. Brock 22 did not have contact with Libby's former counsel at 23 Lackie, on the grounds of: (1) "lack of foundation, 24 including failure to demonstrate personal knowledge;" (2) 25 "improper legal conclusion;" (3) "speculative;" and, (4) 26 "argumentative." 27 /// 28
5

The Court overrules this objection.

The Court

The Court overrules this objection.

1

In his fourth objection, Libby objects to lines 1-6

2 of ¶ 9 of Dammeier's declaration, which state that 3 Dammeier is unaware of the facts or legal issues 4 regarding Libby, on the grounds of: (1) "irrelevant;" (2) 5 "lack of foundation, including failure to demonstrate 6 personal knowledge...;" (3) "argumentative;" and, (4) 7 "improper legal conclusion." 8 objection. 9 10 In his fifth objection, Libby objects to line 9 of ¶ 11 11 of Dammeier's declaration, which states that Libby is 12 not a current client of Lackie's, on the grounds of: (1) 13 "argumentative;" (2) "improper legal conclusion;" and (3) 14 "lack of foundation, including failure to demonstrate 15 personal knowledge." 16 17 In his sixth objection, Libby objects to lines 18-22 18 of ¶ 13 of Dammeier's declaration, which states that 19 Lackie does not represent Libby on any matter through the 20 Legal Defense Fund, on the grounds of: (1) "improper 21 legal conclusion;" (2) "argumentative;" (3) "lack of 22 foundation, including failure to demonstrate personal 23 knowledge." 24 25 In his seventh objection, Libby objects to lines 5-13 26 of ¶ 15 of Dammeier's declaration, which elaborates on 27 Lackie's legal field of specialization, on the grounds 28
6

The Court overrules this

The Court overrules this objection.

The Court sustains this objection.

1 of: (1) "argumentative;" (2) "conclusory;" (3) "improper 2 legal conclusion;" and (4) "lack of foundation, including 3 failure to demonstrate personal knowledge." 4 sustains this objection. 5 6 In his eighth objection, Libby objects to lines 14-19 7 of ¶ 16 of Dammeier's declaration, which states the 8 prejudice to Plaintiff if Lackie is disqualified, on the 9 grounds of: (1) "argumentative;" (2) "conclusory;" (3) 10 "improper legal conclusion;" and (4) "lack of foundation, 11 including failure to demonstrate personal knowledge." 12 The Court sustains this objection. 13 14 15 III. DISCUSSION The Central District of California has adopted the The Court

16 Rules of Professional Conduct of the State Bar of 17 California, and the decisions construing them, as the 18 governing standards of professional conduct. 19 83-3.1.2. 20 21 A. 22 California Rule of Professional Conduct 3-310(C) Under Rule of Professional Conduct 3-310(C), "[a] See L.R.

23 member shall not, without the informed written consent of 24 each [current] client: ... (2) [a]ccept or continue 25 representation of more than one client in a matter in 26 which the interests of the clients actually conflict...." 27 Even if the simultaneous representations are unrelated, 28
7

1 disqualification may be required.

See Flatt v. Superior

2 Court, 9 Cal.4th 275, 284 (1994); Fremont Indem. Co. v. 3 Fremont Gen. Corp., 143 Cal. App. 4th 50, 64 (2006); 4 Truck Ins. Exchg. v. Fireman's Fund Ins. Co., 6 Cal. App. 5 4th 1050, 1060 (1992). 6 7 The parties dispute whether Libby is a current client Libby 8 of Lackie, Dammeier & McGill APC ("Lackie").

9 claims he is presently a client of the firm because, as a 10 Barstow police officer, he pays dues to the Barstow 11 Police Officer's Association, which uses the dues paid to 12 obtain legal representation for its members through the 13 Legal Defense Fund of the Police Officer's Research 14 Association of California, and Lackie is a panel law firm 15 that routinely provides services to members of the 16 Association. 17 2, 9.) (Mot. at 7, 8; see also Libby Decl. at ¶ ¶ Libby is not currently using the firm's legal

18 services but he "continues to be entitled to 19 representation by Lackie through the Legal Defense Fund." 20 (Mot. at 8.) Lackie claimS that Libby is not a client at 21 the present time and that the firm "does not have a 22 current attorney-client relationship, a retainer, or any 23 other obligation to represent Libby." 24 25 When there is conflicting evidence about whether an 26 attorney-client relationship exists, the Court must 27 evaluate the evidence of the factual basis for the 28
8

(Opp'n at 13.)

1 determination.

See Chapman v. Superior Court, 130 Cal. Evaluating the evidence in the As a

2 App. 4th 261, 272 (2005).

3 record here, the Court finds Libby's belief that he is 4 presently a client of Lackie's an unreasonable one. 5 dues-paying member of the Barstow Police Officer's 6 Association, Libby has not sought legal advice and 7 secured that advice from Lackie. 9 79 Cal. App. 4th 114, 126 (2000). See Gulf Ins. Co. v. Relying only on his 8 Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 10 continued payment of dues to the Barstow Police Officer's 11 Association, Libby has not presented enough evidence to 12 demonstrate that he has a continuing attorney-client 13 relationship with Lackie. 15 16 B. 17 California Rule of Professional Conduct 3-310(E) Under Rule of Professional Conduct 3-310(E), "[a] Thus, the Court finds this is 14 not a basis upon which Lackie should be disqualified.

18 member shall not, without the informed written consent of 19 the client or former client,1 accept employment adverse 20 to the client or former client where, by reason of the 21 representation of the client or former client, the member 22 has obtained confidential information material to the 23 employment." 24 /// 25 /// 26 It is undisputed that Libby did not consent in writing or otherwise to Lackie's representation of Holm 28 in the present action. (Mot. at 5; Libby Decl. ¶ 11.) 27
9
1

1

In California, "[a] former client may seek to

2 disqualify a former attorney from representing an adverse 3 party by showing the former attorney actually possesses 4 confidential information adverse to the former client. 5 However, it is well settled actual possession of 6 confidential information need not be proved in order to 7 disqualify the former attorney. 9 representation. It is enough to show a 8 'substantial relationship' between the former and current If the former client can establish the 10 existence of a substantial relationship between 11 representations, the courts will conclusively presume the 12 attorney possesses confidential information adverse to 13 the former client." H. F. Ahmanson & Co. v. Salomon 14 Brothers, Inc., 229 Cal. App. 3d 1445, 1452 (1991); see 15 also Flatt v. Superior Court, 9 Cal. 4th 275, 283 (1994) 16 ("Where the requisite substantial relationship . . . can 17 be demonstrated, access to confidential information . . . 18 is presumed and disqualification . . . is mandatory."). 19 Disqualification on this basis "extends vicariously to 20 the entire firm." 21 22 23 1. Substantial Relationship Test The "substantial relationship" test focuses on the Flatt, 9 Cal. 4th at 283-84.

24 "similarities between the two factual situations, the 25 legal questions posed, and the nature and extent of the 26 attorney's involvement with the cases." 28
10

H.F. Ahmanson &

27 Co., 229 Cal. App. 3d at 1455 (quoting Silver Chrysler

1 Plymouth, Inc. v. Chrysler Motor Corp., 518 F.2d 751, 760 2 (2d Cir. 1975) (Adams, J., concurring)); see also 3 Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft, 4 LLP, 69 Cal. App. 4th 223, 234 (1999). "If the former 5 client can establish the existence of a substantial 6 relationship between representations, the court will 7 conclusively presume the attorney possesses confidential 8 information adverse to the former client." H.F. Ahmanson 9 & Co., 229 Cal. App. 3d at 1452; see also In re County of 10 Los Angeles, 223 F.3d 990, 994 (9th Cir. 2000) ("If there 11 is a reasonable probability that confidences were 12 disclosed [in an earlier representation] which would be 13 used against the client in [a] later, adverse 14 representation, a substantial relationship between the 15 two cases is presumed." (quoting Trone v. Smith, 621 F.2d 16 994, 998 (9th Cir. 1980).); Styles v. Mumbert, 164 Cal. 17 App. 4th 1163, 1167 (2008); Fox Searchlight Pictures, 18 Inv. v. Paladino, 89 Cal. App. 4th 294, 300 (2001). 19 20 Libby argues that the 2003 case in which he was 21 represented by Lackie is substantially related to the 22 current action, where Lackie represents Plaintiff Holm, 23 who is suing Libby. According to Libby, "[t]he matters 24 are substantially related because they both involve the 25 alleged application of the City of Barstow's policies, 26 practices and procedures in responding to Barstow Police 27 Officers' exercise of free speech regarding alleged 28
11

1 wrongful conduct by senior management in the Barstow 2 Police Department." 4 events. 5 6 It is undisputed that Plaintiff Holm's case does not The cases, however, do share (See Def.'s Ex. A; 7 arise from the identical facts or legal issues as did 8 Libby's former case. 10 Compl.) 11 12 13 a) Factual Similarities In 2003, Libby retained Lackie to represent him in (Libby Decl. at ¶ 7; Def.'s Ex. A.) 9 similar facts and legal claims. (Reply at 1.) Lackie argues the two 3 cases are unrelated and do not arise from the same (Opp'n at 12.)

14 his case against the Barstow Police Department and the 15 City of Barstow. 16 Libby claimed that the defendants had "wrongfully 17 retaliated against [him] and took action to suppress 18 [his] civil rights as a result of statements [he] made on 19 behalf of the Barstow Police Officers Association." 20 (Libby Decl. at ¶ 8.) Specifically, Libby alleged that 21 he had "distributed a confidential memorandum to members 22 of the Barstow Police Officers Association" that 23 expressed concerns about the "temporary appointment of 24 rank and file officers [who had not received adequate 25 training] to the position of supervisor in the absence of 26 an on duty corporal or sergeant." 28
12

(Def.'s Ex. A ¶ 12.)

27 For this act of "inciting insubordination," Libby was

1 disciplined and allegedly suffered "various acts of 2 intimidation, reprisal, retaliation, suppression and 3 extreme exercise;" that discipline was the basis for 4 Libby's claims. 5 6 The facts of Holm's claims differ somewhat. Holm 7 alleges he wrote a report after a traffic accident 8 involving the Chief of Police's son-in-law concluding the 9 son-in-law was at-fault for the accident. 10 11-13.) (Compl. at ¶¶ Allegedly, Holm's supervisors, including Libby, (Id. at ¶¶ 13, 22)

11 repeatedly instructed Holm to change his report to 12 reflect that the Chief's son-in-law was not at fault. 13 (Id. at ¶¶ 15-26.) 15 (Id. at ¶ 21.) Holm allegedly stated his objections 14 to changing the report but the changes were made anyway. Holm filed an internal complaint with the 16 City of Barstow regarding the incident and allegedly has 17 suffered negative consequences, including harassment, as 18 a result. 19 20 The facts of Libby's claims and those of Holm are Both allegedly arise out of a police officer's Furthermore, both arise from alleged wrongful Finally, 21 similar. 23 speech. (Id. at ¶¶ 27-39.)

22 alleged exercise of his First Amendment right to free 24 discipline and retaliation imposed as a result of the 25 officer's exercise of his free speech rights. 26 and most critically, both Holm's case and Libby's case 27 involve the same law enforcement agency, the City of 28
13

1 Barstow's police department.

"The facts of cases are

2 never entirely alike" but these facts are sufficiently 3 similar to satisfy the fact prong of the substantially 4 related test. See Morrison Knudsen Corp., 69 Cal. App. 5 4th at 235 (substantial relationship found between two 6 successive cases about soil issues: (1) former case 7 concerned with "placement of a clay pad in an unstable 8 location" and (2) present case about "whether corrosive 9 sand could be used above metal culverts that pass under a 10 roadway."). 11 12 13 b) Legal Similarities Libby's 2003 case sought damages and injunctive

14 relief for injury suffered "as a result of the wrongful 15 retaliation for lawful exercise of individual civil 16 rights and liberties, free expression and association, 17 labor organizational, social, and political activities." 18 (Def's Ex. A.) In this case, Holm seeks money damages 19 and injunctive relief for the alleged retaliation, 20 harassment, and wrongful termination he suffered because 21 he exercised his free speech rights. 23 wrongdoer is the same entity. 25 substantial relationship test. 26 /// 27 /// 28
14

(See Compl.)

These

22 claims are nearly identical, and both assert the alleged Thus, the Court finds the 24 legal claims satisfy the similarity prong of the

1 2

c) Attorney Involvement Lackie argues that its former representation of Libby

3 resulted in no confidential information being conveyed to 4 the firm and that no information adverse to Libby was 5 communicated either. (Opp'n at 9.) Alternatively, the 6 firm argues that, if confidential information was 7 imparted to the attorneys representing Libby in 2003, it 8 was not conveyed to Plaintiff Holm's current lawyer, 9 Steven J. Brock ("Brock"), because of the firms's 10 screening methods. 11 16, 19, 20, 24-27.) 12 13 In Rosenfeld Construction Co. v. Superior Court, 235 14 Cal. App. 3d 566, 573 (1991), the California Court of 15 Appeal held that "knowledge obtained by one member of a 16 firm of lawyers is imputed to all the other members." 17 Moreover, the California Supreme Court has indicated the 18 presumption of shared confidences in this context is not 19 rebuttable. See Flatt, 9 Cal. 4th at 283-84 ("[W]here an 20 attorney is disqualified because he formerly represented 21 and therefore possesses confidential information 22 regarding the adverse party in the current litigation, 23 vicarious disqualification of the entire firm is 24 compelled as a matter of law.") (quoting Henriksen v. 25 Great Am. Sav. & Loan, 11 Cal. App. 4th 109, 117 26 /// 27 /// 28
15

(Id. at 13; Brock Decl. at ¶¶ 2, 14,

1 (1992)). 2

Accordingly, knowledge and confidences

2 obtained by the associates who represented Libby in his 3 former case are imputed to the entire Lackie firm. 4 5 Given the factual and legal similarity between 6 Libby's 2003 case and Holm's present case, a presumption 7 arises that the law firm "possesses confidential 8 information about [Libby] which would be compromised if 9 [the firm] were allowed to take an adverse position after 10 the representation ended." Styles v. Mumbert, 164 Cal. 11 App. 4th 1163, 1167 (2008); see also Fox Searchlight 12 Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 300 13 (2001). 14 15 That Brock did not work at Lackie until after the The law firm had an imputed 16 departure of the attorneys who had previously represented 17 Libby is immaterial. 19 20 21 The cases Lackie cites do not support a contrary conclusion. (See Opp'n at 13-14 (citing cases).)
2

18 conflict by nature of its 2003 representation of Libby;

In San Gabriel Basin Water Quality Authority v. 22 Aerojet-General Corp., the court reasoned that "[i]n cases where the disqualification request is not based on 23 an attorney-client relationship . . . . the better approach is to examine the circumstances of each case." 24 105 F. Supp. 2d 1095, 1103 (C.D. Cal. 2000) (citations and quotation marks omitted). That case, however, 25 confirmed that "[v]icarious disqualification of a firm is required [] where an attorney is disqualified because he 26 represented the adverse party." See id. Similarly, the court in Adams v. Aerojet-General Corp., did not question this rule. See 86 Cal. App. 4th 28 1324, 1333 (2001). 27
16

1 that imputed conflict did not dissolve once the lawyers 2 who personally had performed the work left the firm.3 3 Since Lackie's 2003 representation of Libby and its 4 current representation of Holm are substantially related 5 factually and legally, the Court presumes the firm was 6 privy to confidential information4 and must be 7 disqualified; by nature of Brock joining Lackie, he too 8 is disqualified as a member of the firm, from 9 representing Holm in the present action. 10 /// 11 /// 12 /// 13 /// 14 15 16 17 18 19 20 21 On this point, the Court finds persuasive ABA Model Rule 1.10(b), which states: "When a lawyer has terminated an association within a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by [confidentiality] rules that is material to the matter."
4 3

The parties contest whether Lackie in fact received 22 confidential information. While the firm insists that it did not, Libby declares that he did impart such 23 information. Libby states in his declaration: "I consulted with attorneys Michael Morguess and Saku Ethir 24 of th[e] [Lackie] firm. In those consultations I provided these attorneys with confidential information 25 concerning my employment and in particular my knowledge, understanding and involvement in the development and 26 implementation of Barstow Police Department policies, practices, and procedures." (Libby Decl. at ¶ 3.) 27 Because the Court finds a substantial relationship between the two representations, it need not resolve this 28 question.
17

1 C. 2 3

Canon 9 of American Bar Association's Model Code of Professional Responsibility Canon 9 of the American Bar Association's Model Code

4 of Professional Responsibility states: "a lawyer should 5 avoid even the appearance of professional impropriety." 6 As Libby correctly points out, the Ninth Circuit has held 7 that the violation of Canon 9 is an independent basis for 8 disqualification. See In re Coordinated Pretrial 9 Proceedings in Petroleum Products Antitrust Litigation, 10 658 F.2d 1355, 1360 (1981) ("If Canon 9 were not 11 separately enforceable, it would be stripped of its 12 meaning and significance."). Canon 9 violations, alone, 13 will be grounds for disqualification when "[t]he 14 impropriety [] affect[s] the public's view of the 15 judicial system or the integrity of the court." 16 17 The Court finds Lackie's representation of Holm in Lackie represented Libby five Lackie has violated Canon 18 this case gives a strong and clear "appearance of 19 professional impropriety." 20 years ago and now has turned around and sued him on a 21 substantially related matter. 22 9 and this presents further evidence of grounds for 23 disqualifying Lackie from representing Holm in this case. 24 /// 25 /// 26 /// 27 /// 28
18

Id.

1 D. Prejudice to Plaintiff Holm 2 The Court is aware that disqualification of Lackie Balancing 3 will prejudice Plaintiff Holm to some degree. 5 motion to disqualify Lackie. 6 7 Lackie argues that Libby delayed unnecessarily in (See Opp'n at 5-7.) The Court 8 bringing this Motion.

4 the equities, however, the Court must grant Libby's

9 will deny disqualification motions brought for purely 10 strategic purposes to dely the litigation, harass the 11 opposing party, or pressure a more favorable settlement. 12 See H.F. Ahmanson & Co., 229 Cal. App. 3d at 1454; River 13 West, Inc. v. Nickel, 188 Cal. App. 3d 1297, 1308-09 14 (1987) (undue delay in bringing disqualification motion 15 may foreclose former's client's claim of conflict of 16 interest). In evaluating the effect, if any, of a 17 party's delay in bringing a motion to disqualify, a court 18 considers when the client obtained knowledge of the 19 conflict. 20 1309, 1311. 21 22 The Court finds Lackie's argument unpersuasive. Holm 23 filed this action on February 29, 2008 and Libby's 24 counsel, Mr. Meneses ("Meneses"), first raised the 25 subject of a possible conflict of interest with 26 Plaintiff's counsel on May 21, 2008. 28
19

See River West, Inc., 188 Cal. App. 3d at

(See Reply at 2.)

27 According to Meneses' declaration, he first learned of

1 the potential conflict of interest from his client on May 2 20, 2008. (See Meneses Reply Decl. at ¶ 7.) From May 3 until July, counsel met and conferred regarding the 4 conflict of interest.5 5 August 12, 2008. 6 7 Meneses did not unduly delay before bringing the In fact, after continuous 8 disqualification motion. Meneses filed his motion on

9 communications with Lackie regarding the issue, Libby's 10 counsel appears to have put off filing his motion out of 11 professional courtesy. (Id. at ¶ 13 ("I told Mr. Brock 12 in my email that because of his vacation plans, I would 13 attempt to accommodate him by not setting the hearing on 14 the motion to disqualify at a time where he would be 15 unavailable to either prepare an opposition or attend the 16 hearing.").) Thus, Lackie's argument that Libby delayed 17 filing his disqualification motion as some sort of 18 gamesmanship is disingenuous. 19 20 In light of the substantial relationship between the 21 two representations; the fact that Mr. Meneses did not 22 delay bringing his motion to disqualify; the fact that 23 Lackie did not obtain a waiver despite Rule 3-310(E); and 24 the harm that will result to Libby if Lackie is not 25 26 Apparently, there was a forty day delay between Meneses's request for a copy of Libby's 2003 complaint 27 and his receipt of said complaint, due to the file being 28 misplaced. (See Reply at 3; Meneses Reply Decl. at ¶ 9.)
20
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1 disqualified, the Court finds disqualification is 2 appropriate here. 3 4 5 IV. CONCLUSION For the foregoing reasons, the Court GRANTS Libby's Lackie is directed to cease

6 Motion to Disqualify Lackie.

7 all representation of Plaintiff and to turn over all 8 files relating to the prosecution of Plaintiff's action. 9 10 IT IS SO ORDERED. 11 12 Dated: September 16, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
21

VIRGINIA A. PHILLIPS United States District Judge