McElroy et al v. Pacific Autism Center for Education et al

Filing 38

ORDER by Judge Lucy H. Koh denying 29 Motion to Disqualify Counsel. (lhklc4S, COURT STAFF) (Filed on 5/13/2015)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 GEORGE MCELROY, et al., Plaintiffs, 13 14 15 16 17 18 v. Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY Re: Dkt. No. 29 PACIFIC AUTISM CENTER FOR EDUCATION, et al., Defendants. Plaintiffs George and Gia McElroy, and their minor child, G.J.M., (collectively, 19 “Plaintiffs”) bring suit against defendants Pacific Autism Center for Education (“PACE”), Santa 20 Clara County Office of Education, Kurt Ohlfs, Kelly Montague, Megan Nolan, the Board of 21 Directors and Officers of the Pacific Autism Center for Education, and Does 1-50 (collectively, 22 “Defendants”). Before the Court is Defendants’ motion to disqualify Plaintiffs’ Counsel, Mr. 23 David Tollner, and by imputation, Plaintiffs’ co-counsel at the law firm of Corsiglia McMahon & 24 Allard LLP (the “Corsiglia firm”). ECF No. 29. 25 The Court finds this matter suitable for decision without oral argument under Civil Local 26 Rule 7-1(b) and hereby VACATES the motion hearing set for May 21, 2015, at 1:30 p.m. The 27 case management conference set for that date and time remains as set. Having considered the 1 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 28 1 submissions of the parties, the relevant law, and the record in this case, the Court DENIES 2 Defendants’ motion to disqualify Plaintiffs’ counsel. 3 I. BACKGROUND 4 A. The Alleged Mistreatment of G.J.M. While Under Defendants’ Care 5 This lawsuit stems from allegations that Plaintiffs’ autistic, minor son, G.J.M., was 6 mistreated and abused while in the care of PACE’s residential facilities. PACE is a private, non- 7 profit organization and is a California Certified Nonpublic School, credentialed by the California 8 Department of Education. ECF No. 1 (“Compl.”) ¶ 4. PACE is designed and marketed as a 9 school and residential center that specializes in the care, treatment, and education of individuals 10 United States District Court Northern District of California 11 with autism. Id. Mr. and Mrs. McElroy are the biological parents of G.J.M., who was twelve years old in 12 2010 when he was initially placed at PACE. Id. ¶¶ 2, 3, 23-25. At that time, he was in good 13 physical and emotional health. Id. ¶ 25. Plaintiffs’ complaint contains several disturbing 14 allegations of mistreatment, only a few of which are recounted below. Plaintiffs allege that shortly 15 after placement, G.J.M. began a “downward spiral, behaviorally, emotionally, physically, and 16 academically.” Id. ¶ 27. For example, G.J.M. began engaging in self-injurious behaviors, such as 17 repeatedly banging his head into the floor to the point where G.J.M. developed swelling, bruising, 18 abrasions and head lacerations which ultimately resulted in a permanent “horn” protrusion on 19 G.J.M.’s forehead. Id. ¶¶ 34-37. G.J.M. also developed unhealthy eating habits during this time, 20 such as primarily eating copious amounts of ketchup-water “soup,” resulting in G.J.M.’s drastic 21 weight loss to a mere 67 pounds by the time he was fourteen years old. Id. ¶¶ 43-48. Plaintiffs 22 further allege that G.J.M. was allowed to roam naked for hours at a time and would urinate upon 23 himself and others. Id. ¶¶ 46, 82. Plaintiffs also contend that on bus rides G.J.M. was often either 24 over-restrained (forcefully, and in one instance suffering an eye injury) or under-restrained 25 (allowing G.J.M. to roam about a moving bus). Id. ¶¶ 49-59. G.J.M. finally left PACE in July 26 2012, having resided at Defendants’ facilities for just under two years, from September 2010 to 27 July 2012. Id. ¶¶ 11, 23, 138. 28 2 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiffs’ Complaint In June 2014, Plaintiffs filed the instant case in California Superior Court. See Compl. Plaintiffs asserted twelve causes of action against Defendants including, inter alia, assault and battery, fraud, civil rights violations, and violations of various laws designed to protect disabled individuals. Id. In sum, the common thread binding these claims is the alleged mistreatment of G.J.M. at PACE’s facilities from the years 2010-2012. See id. The lawyer who filed Plaintiffs’ complaint was Mr. Bradley Corsiglia of the Corsiglia firm. Id. On September 11, 2014, the Complaint was removed from California state court to this Court. ECF No. 1. On December 16, 2014, Mr. David Tollner associated into the case to represent Plaintiffs as co-counsel with the Corsiglia firm. ECF No. 17. On January 26, 2015, Defendants filed the instant motion to disqualify both Mr. Tollner, based on his prior involvement with PACE, and the Corsiglia firm for working with Mr. Tollner. ECF No. 29 (“Motion” or “Mot.”). C. Mr. Tollner Mr. Tollner graduated from law school in 1988 and began practicing law in private practice immediately thereafter. ECF No. 35 ¶ 2. In 1996, Mr. Tollner became a member of the Board of Directors of PACE. Id. ¶ 3. His duties included attending board meetings, approving financial decisions, and ensuring that the organization remained viable. Id. In 2002, Mr. Tollner inactivated his law license and became the Executive Director of PACE. Id. ¶ 4. His responsibilities as Executive Director involved (1) financial management and fundraising, (2) employee management and supervision, (3) new program development, and (4) reporting to the Board on areas (1), (2), and (3). Id. ¶ 5. Although Mr. Tollner is an attorney by trade and maintained his law license in an active status while he served on the Board of Directors, there is no allegation that Mr. Tollner acted as an attorney for PACE or that Mr. Tollner served in any legal capacity for PACE either while he served on the Board of Directors or while he served as the Executive Director of PACE. According to a sworn declaration by Mr. Tollner, he never represented PACE as an attorney nor was he involved in any litigation concerning PACE. Id. ¶ 3 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 23. Defendants do not dispute these facts. See Mot. at 4-5; ECF No. 36. In 2005, Mr. Tollner left 2 PACE and has had no further involvement with the organization. ECF No. 35 ¶ 21. Mr. Tollner’s 3 immediate successor to the Executive Director position was Mr. Ohlfs, who had served on the 4 Board of Directors while Mr. Tollner was the Executive Director. ECF No. 29-5 ¶ 4. Mr. Ohlfs 5 continues to serve as the Executive Director of PACE and is a named defendant in this case. Id. 6 Mr. Tollner reactivated his law license in 2006 and has returned to private practice, 7 specializing in special education and civil rights law involving children with special needs. ECF 8 No. 35 ¶ 21. At least half of Mr. Tollner’s practice involves representing children with autism. Id. 9 Mr. Tollner purports to be the only San Jose-based special education attorney and among only a handful of full-time special education attorneys in the entire Bay Area. Id. ¶ 22. 11 United States District Court Northern District of California 10 II. 12 LEGAL STANDARD “The right to disqualify counsel is a discretionary exercise of the trial court’s inherent 13 powers.” Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 264 F. Supp. 2d 914, 918 14 (N.D. Cal. 2003). Under Civil Local Rule 11-4(a)(1), all attorneys who practice in this Court must 15 comply with the standards of professional conduct required of members of the State Bar of 16 California. This Court, therefore, applies state law in determining matters of disqualification. See 17 In re Cnty. of L.A., 223 F.3d 990, 995 (9th Cir. 2000). 18 Rule 3-310(E) of the Rules of Professional Conduct of the State Bar of California prohibits 19 the successive representation of clients in certain circumstances without the informed written 20 consent of the current client and former client. The rule provides: “A member shall not, without 21 the informed written consent of the client or former client, accept employment adverse to the 22 client or former client where, by reason of the representation of the client or former client, the 23 member has obtained confidential information material to the employment.” 24 Interpreting Rule 3-310(E), the California Supreme Court has held: “Where an attorney 25 successively represents clients with adverse interests, and where the subjects of the two 26 representations are substantially related, the need to protect the first client’s confidential 27 information requires that the attorney be disqualified from the second representation.” People ex 28 4 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY rel. Dep’t of Corps. v. SpeeDee Oil Change Sys., Inc., 20 Cal. 4th 1135, 1146 (1999) (citing Flatt 2 v. Super. Ct., 9 Cal. 4th 275, 283 (1994)). “To determine whether there is a substantial 3 relationship between successive representations, a court must first determine whether the attorney 4 had a direct professional relationship with the former client in which the attorney personally 5 provided legal advice and services on a legal issue that is closely related to the legal issue in the 6 present representation.” City & Cnty. of S.F. v. Cobra Solutions, Inc., 38 Cal. 4th 839, 847 (2006). 7 “When a substantial relationship between the two representations is established, the attorney is 8 automatically disqualified from representing the second client.” Id. The burden is on the party 9 seeking the disqualification “to show both the fact of the former representation and the existence 10 of a substantial relationship between the former and current representations.” In re Charlisse C., 11 United States District Court Northern District of California 1 45 Cal. 4th 145, 166 n.11 (2008). “[R]ule 3-310 controls conflicts of interest and disqualification 12 motions only in the context of attorney-client relationships.” Oaks Mgmt. Corp. v. Super. Ct., 145 13 Cal. App. 4th 453, 465 (2006). In considering whether to disqualify counsel, the Court is guided by the overarching 14 15 principle that “the business of the court is to dispose of litigation and not to oversee the ethics of 16 those that practice before it unless the behavior taints the trial.” See Continental Ins. Co. v. Super. 17 Ct., 32 Cal. App. 4th 94, 111 n. 5 (1995) (internal quotation omitted). Moreover, “[b]ecause 18 disqualification is a drastic measure, it is generally disfavored and should only be imposed when 19 absolutely necessary.” Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796, 814 (N.D. Cal. 2004). 20 “Moreover, with regard to the ethical boundaries of an attorney’s conduct, a bright line test is 21 essential.” Snider v. Super. Ct., 113 Cal. App. 4th 1187, 1197 (2003) (internal quotation omitted). 22 “As a practical matter, an attorney must be able to determine beforehand whether particular 23 conduct is permissible; otherwise, an attorney would be uncertain whether the rules had been 24 violated until . . . he or she is disqualified.” Id. (internal quotation omitted). 25 III. 26 27 28 DISCUSSION Defendants argue that (1) Mr. Tollner should be disqualified because there is a “substantial relationship” between Mr. Tollner’s prior employment with PACE and the instant litigation, (2) 5 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 Mr. Tollner should be disqualified based on his continuing fiduciary duty to PACE, and (3) the 2 Corsiglia firm should be disqualified because that firm decided to work with Mr. Tollner on this 3 matter. Mot. at 9-12. Each is addressed in turn. 4 A. Rule of Professional Conduct 3-310 5 Defendants argue that Mr. Tollner’s prior employment with PACE warrants his disqualification from this litigation because there is a “substantial relationship” between the two. 7 Mot. at 10. According to Defendants, this lawsuit is about the failure of PACE’s policies and 8 procedures resulting from the mismanagement, intentional misconduct, and indifference of 9 PACE’s upper management. Id. Defendants further contend that because Messrs. Tollner and 10 Ohlfs served together on PACE’s board of directors, Mr. Tollner was able to gain confidential 11 United States District Court Northern District of California 6 information from Mr. Ohlfs, a Defendant, regarding the current subject matter of this action. Id. at 12 11. Plaintiffs respond that Mr. Tollner never represented PACE as an attorney and that there is no 13 relationship between this cause of action, involving the alleged abuses to G.J.M. from 2010-12, 14 and Mr. Tollner’s employment at PACE, from 1996-2005. ECF No. 34 at 7-9, 12-13. For the 15 reason stated below, the Court agrees with Plaintiffs. 16 The “substantial relationship” test is the test which governs the analysis under Rule 3- 17 310(E) of the Rules of Professional Conduct of the State Bar of California. See SpeeDee, 20 Cal. 18 4th at 1146. The rule serves to protect “a hallmark of our jurisprudence,” which is “the right of 19 every person to freely and fully confer and confide in one having knowledge of the law, and 20 skilled in its practice, in order that the former may have adequate advice and a proper defense.” 21 Id. (internal quotations omitted). Thus, Rule 3-310 prohibits attorneys from accepting, without 22 the former client’s informed written consent, employment adverse to the former client where, “by 23 reason of the representation of the . . . former client, the [attorney] has obtained confidential 24 information material to the employment.” Id. (quoting Rule 3-310). If an attorney could freely 25 use a former client’s confidences to aid a future client, the fear of such a possibility would chill 26 incentives otherwise encouraging frank communications with one’s attorney. 27 28 Here, the parties do not dispute that Mr. Tollner never acted as an attorney or in any legal 6 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 capacity for PACE, nor was PACE ever a “client” of Mr. Tollner. In other words, there was no 2 attorney-client relationship between Mr. Tollner and PACE. Accordingly, because “rule 3-310 3 controls conflicts of interest and disqualification motions only in the context of attorney-client 4 relationships,” Mr. Tollner’s prior employment with PACE cannot serve as a basis to disqualify 5 him, pursuant to Rule 3-310, as counsel for Plaintiffs. Oaks, 145 Cal. App. 4th at 465. 6 B. Mr. Tollner’s Prior Fiduciary Relationship 7 Defendants further argue that the Court should disqualify Mr. Tollner based on his prior 8 fiduciary relationship with PACE. According to Defendants, because Mr. Tollner exercised 9 discretionary authority on behalf of PACE and received confidential information about PACE, his continuing duty to PACE to maintain the confidentiality of this information requires that Mr. 11 United States District Court Northern District of California 10 Tollner be precluded from representing Plaintiffs in their suit against Mr. Tollner’s successor (Mr. 12 Ohlfs) and the Board of which Mr. Tollner was formerly a member. Mot. at 9-10. Plaintiffs 13 respond that Mr. Tollner’s prior employment with PACE, from 1996-2005, bears no relation at all 14 to the facts of this case, which involves the mistreatment of G.J.M. from 2010-2012. Specifically, 15 Plaintiffs contend that “[t]his lawsuit is about the rights of plaintiff and the abuse he suffered 16 while in the Defendants’ care, more than five years after Tollner left PACE” and that “the only 17 issues relevant to this matter are those directly pertaining to plaintiff’s care and treatment.” ECF 18 No. 34 at 8. For the reasons stated below, the Court agrees with Plaintiffs and concludes that 19 Defendants failed to carry their burden to show that Mr. Tollner’s prior employment with PACE 20 should result in Mr. Tollner’s disqualification. 21 22 1. Applicability of the “substantial relationship” test California’s Rules of Professional Conduct used to include Rule 5-102(B), which 23 provided: “A member of the State Bar shall not represent conflicting interests, except with the 24 written consent of all parties concerned.” See William H. Raley Co. v. Super. Ct., 149 Cal. App. 25 3d 1042, 1046 (1983) (quoting Rules of Professional Conduct of the State Bar of California). In 26 Raley, a California appellate court held that Rule 5-102 “includes conflicts of interest arising other 27 than in the course of legal representation” and that a conflict under this rule “may arise from an 28 7 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 attorney’s relationship with a non-client.” Id. at 1046-47 (internal quotation omitted). Under this 2 Rule, there are two scenarios where a conflict may arise: (1) “where an attorney’s relationship 3 with a person or entity creates an expectation that the attorney owes a duty of fidelity,” or (2) 4 “where the attorney has acquired confidential information in the course of such a relationship 5 which will be, or may appear to the person or entity to be, useful in the attorney’s representation in 6 an action on behalf of a client.” Id. (internal quotation omitted). Since that time, however, the 7 California Supreme Court adopted the revised Rules of Professional Conduct, combining former 8 rules 5-102 and 4-101 into current rule 3-310. Oaks, 145 Cal. App. 4th at 465. “Unlike former 9 rule 5-102, rule 3-310 controls conflicts of interest and disqualification motions only in the context of attorney-client relationships.” Id. Thus Raley was premised upon a rule which no longer 11 United States District Court Northern District of California 10 exists. See id. 12 The issue thus becomes whether the holding in Raley remains viable even though the rule 13 underpinning its decision is no longer in force. Defendants’ Motion cites Raley, and a couple of 14 federal district court decisions that have applied Raley even after the abrogation of former rule 5- 15 102. Mot. at 7. Further, California appellate courts have stated that “[a]lthough the provisions of 16 former rule 5-102 have been amended and replaced by current rule 3-310, Raley’s reasoning 17 remains good law.” Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft, 69 Cal. App. 4th 18 223, 232 (1999). On the other hand, certain other California appellate courts have questioned the 19 continuing viability of Raley after the abrogation of former Rule 5-102. See, e.g., Oaks, 145 Cal. 20 App. 4th at 465 (noting that “courts have cited Raley after the abrogation of former rule 5–102,” 21 but nonetheless distinguishing Raley based on its facts). The California Supreme Court has not 22 squarely addressed the question of whether an attorney’s relationship with a non-client, such as 23 serving on the Board of a company, may serve as a conflict of interest precluding that attorney 24 from being adverse to the non-client. Federal courts must apply “California law as we believe the 25 California Supreme Court would apply it.” In re KF Diaries, Inc. & Affiliates, 224 F.3d 922, 924 26 (9th Cir. 2000). Intermediate California appellate court decisions, although persuasive, are not 27 binding authority and federal courts are not bound by them if it is believed that “the California 28 8 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 Supreme Court would decide otherwise.” Id. (internal quotation omitted). Here, there is a 2 compelling reason to believe that the California Supreme Court, by expressly removing former 3 Rule 5-102 (which did not mention “client”) and replacing it with new Rule 3-310 (which refers to 4 conflicts involving clients or former clients only) intended to clarify that only attorney-client 5 relationships may give rise to conflicts of interest under the Rules of Professional Conduct 6 governing attorneys. 7 Regardless, the Court need not, and does not, resolve this issue today. As explained 8 below, even if Raley remains good law, the Court determines that Defendants have failed to satisfy 9 their burden to show that Mr. Tollner’s prior, non-attorney relationship with PACE creates a 10 United States District Court Northern District of California 11 conflict of interest. Unlike in Raley, which involved concurrent relationships, in the instant case Mr. Tollner’s 12 prior employment with PACE and his current representation of Plaintiffs is not concurrent, but 13 rather successive. Cf. Raley, 149 Cal. App. 3d at 1047-48 (holding that the law firm, by 14 representing the plaintiff and having a partner with a fiduciary interest in the defendant, was “on 15 both sides of [the] lawsuit” “at the same time”). Moreover, while Mr. Tollner may have had a 16 duty of loyalty to PACE while serving as its Executive Director, at best he only owes a duty to 17 keep the confidences he acquired during his tenure, which ended in 2005. See, e.g., In re 18 Mortgage & Realty Trust, 195 B.R. 740, 750 (C.D. Cal. 1996) (holding that while “the fiduciary 19 duties of a director or trustee terminate when the director or trustee ends his or her tour of duty,” 20 “[t]he duty to protect and preserve confidential information received during service as a director 21 continues after the director leaves the board”). California courts applying Raley in similar 22 situations have applied a “substantial relationship” test similar to the one typically used in 23 conducting an analysis under Rule 3-310 for successive attorney-client relationships. See, e.g., 24 Morrison, 69 Cal. App. 4th at 233-34 (applying the “substantial relationship” test in the case of 25 successive interests). The Court will now conduct an analysis using this test. 26 27 28 2. Application of the “substantial relationship” test “The test for a substantial relationship between cases entails an inquiry into the similarities 9 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 between the two factual situations, the legal questions posed, and the nature and extent of the 2 attorney’s involvement with the cases.” Id. at 234 (internal quotation omitted). For the reasons 3 stated below, the Court determines that Defendants failed to carry their burden to show that Mr. 4 Tollner’s prior employment with PACE bears a “substantial relationship” with his current 5 representation. 6 7 a. Similarities between the two factual situations The factual situation between Mr. Tollner’s prior and present relationships vis-à-vis PACE 8 bear no relation to one another. In attempting to show that Mr. Tollner’s prior employment is 9 factually similar to the present litigation, Defendants primarily rely on three arguments: (1) the present lawsuit is really an attack on PACE’s management practices and is therefore related to Mr. 11 United States District Court Northern District of California 10 Tollner’s prior employment, (2) Mr. Tollner acquired knowledge of PACE’s operations and 12 financial information during his employment, and (3) Mr. Tollner signed a confidentiality 13 statement in 2002. Each is addressed in turn. 14 The current litigation involves the alleged abuses suffered by a specific individual, G.J.M., 15 who was enrolled in a PACE facility from 2010-12. Plaintiffs’ complaint is limited in scope to 16 recovery for the abuses suffered by G.J.M. while residing at PACE’s facilities from 2010-12. See, 17 e.g., Compl. Each cause of action is limited in time and scope to the period where G.J.M. resided 18 at a PACE facility and seeks recovery for the alleged injuries caused during that time period. Id. 19 Mr. Tollner had no involvement with PACE while G.J.M. was residing at its facilities. Indeed, 20 when Mr. Tollner left PACE in 2005, it would be another five years before G.J.M. came to reside 21 at a PACE facility. Similarly, while serving at PACE, Mr. Tollner was not responsible for any 22 policy decisions relevant to this case. See, e.g., ECF No. 35 ¶¶ 16-20. While serving PACE as 23 board member and Executive Director from 1996-2005, Mr. Tollner’s responsibilities involved 24 financial management and fundraising, employee management and supervision, new program 25 development, and reporting to the Board. There is no allegation that Mr. Tollner was involved, 26 even tangentially, in causing any harm to G.J.M. or that any such harm was the result of decisions 27 made during Mr. Tollner’s tenure as Executive Director five years earlier. 28 10 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 Defendants also allege that Mr. Tollner is “very familiar” with PACE’s financial condition, fund raising ability, assets, attitude towards litigation, and budgeting process. Mot. at 9-10. 3 Defendants contend that Mr. Tollner received confidential information from Mr. Ohlfs and that 4 Mr. Tollner’s general knowledge about PACE’s finances will give Plaintiffs an “unfair advantage 5 in settlement negotiations.” Mot at 10-12. The Court is not persuaded for three primary reasons. 6 First, while Mr. Ohlfs contends he had “closed door” meetings with Mr. Tollner, Mr. Ohlfs does 7 not contend that the subject of these discussions was in any way related to how G.J.M. was treated 8 five years later. See ECF No. 29-5 ¶ 14. Second, PACE’s financial information is likely 9 discoverable and Defendants have failed to identify any applicable privilege that would otherwise 10 protect such information from disclosure. Moreover, the details of PACE’s financial information 11 United States District Court Northern District of California 2 are both public and readily available. ECF No. 34 at 7; ECF No. 35 ¶ 7. Furthermore, Defendants 12 have failed to explain how Mr. Tollner’s alleged knowledge of PACE’s financial information and 13 operational practices from ten years ago would be relevant to this case. Third, Defendants’ 14 contention that Mr. Tollner will have an unfair advantage in settlement negotiations because he 15 knows PACE’s ten-year-old attitude towards litigation is equally unpersuasive. As stated above, 16 the details of PACE’s financials are public and discoverable, and the fact that a non-profit 17 institution would desire to avoid a costly litigation is hardly privileged or confidential. 18 The Court also rejects Defendants’ remaining argument that a confidentiality statement 19 signed by Mr. Tollner at the outset of his tenure with PACE requires the Court to presume that Mr. 20 Tollner acquired confidential information substantially related to this case. See Mot. at 9-10; ECF 21 No. 34 at 10-11; ECF No. 36 at 3. The primary focus of the confidentiality statement was to 22 protect the confidential information of PACE’s students, including their medical and financial 23 records. Further, to the extent the statement also applies to confidential business policies of PACE 24 from 2002-05, Defendants have failed to explain how PACE’s business policies from that time 25 period are relevant to the instant case. Moreover, even assuming Mr. Tollner did acquire 26 knowledge regarding the inner-workings of PACE from 5-10 years ago, Defendants failed to 27 establish how this knowledge would be related to the specific injuries and abuses suffered by 28 11 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 G.J.M. five years later as a result of the action or inaction of PACE, its management, and its staff 2 members. 3 Thus, the two factual situations are separated both in time and in substance and the Court 4 finds that no confidences were acquired by Mr. Tollner that would bear any relation to Plaintiffs’ 5 lawsuit against Defendants. 6 7 b. Legal questions posed Any “legal questions” presented by Mr. Tollner’s employment at PACE also differ from any legal questions at issue in the present litigation. During Mr. Tollner’s tenure on the board and 9 as Executive Director, he was not involved in any litigation, let alone any comparable litigation 10 brought against PACE involving allegations similar to those in this case. See ECF No. 25 at 1; 11 United States District Court Northern District of California 8 ECF No. 35 ¶ 23. Although Defendants contend that Mr. Tollner had access to prior litigation 12 files and its outcomes (ECF No. 29-5 ¶ 12), Mr. Tollner declares that he did not work on any legal 13 matters nor did he acquire any confidential information (ECF No. 35 ¶ 23). Even if Mr. Tollner 14 had access to prior, confidential information, Defendants have failed to show how any legal 15 questions presented by Mr. Tollner’s role at PACE from 1996-2005 bears any relationship, let 16 alone a substantial relationship, to any legal questions in the current suit involving G.J.M. 17 Accordingly, the Court finds that Defendants have failed to show a similarity in legal questions 18 between Mr. Tollner’s employment at PACE and the instant case. 19 c. Nature and extent of the attorney’s involvement 20 The final factor, the nature and extent of the attorney’s involvement, is the only factor 21 suggesting the potential for a conflict. Mr. Tollner served on PACE’s board of directors for six 22 years, and as the executive director—the highest position in the organization—for three. See ECF 23 No. 29-5 ¶ 8 (“At the time Mr. Tollner served as Executive Director, there was no higher position 24 within PACE’s management structure.”). During this time, Mr. Tollner exercised discretionary 25 authority for PACE and was intimately familiar with PACE’s operations. Id. ¶¶ 9-10. Here, 26 Plaintiffs have hired Mr. Tollner because of his “extensive expertise” in the “unique area of 27 special education and mental disability litigation.” ECF No. 34 at 18. It can be expected, 28 12 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY 1 therefore, that Mr. Tollner will be intimately involved with representing Plaintiffs in this litigation, 2 even though his co-counsel at the Corsiglia law firm has a strong background in civil litigation and 3 trial experience. Id. Although the Court concludes that this factor weighs in favor of finding a 4 substantial relationship exists between Mr. Tollner’s prior employment with PACE and the present 5 litigation against PACE, because Defendants have failed to carry their burden to show any overlap 6 in the factual situations or legal questions presented, this factor is not dispositive. 7 d. Summary In sum, Defendants failed to make a sufficient showing to warrant disqualification of Mr. 8 9 Tollner. While Mr. Tollner was intimately involved with PACE a decade ago, the Court finds that his prior employment bears no factual or legal relationship to the present dispute. The Court, in 11 United States District Court Northern District of California 10 holding that Mr. Tollner may continue to represent Plaintiffs in this litigation, does not pass upon 12 whether, and to what extent, Mr. Tollner continues to owe any fiduciary duties to PACE. Besides, 13 “the business of the court is to dispose of litigation and not to oversee the ethics of those that 14 practice before it unless the behavior taints the trial.” Continental, 32 Cal. App. 4th at 111 n.5. 15 The Court today finds only that Defendants have failed to meet their burden to show entitlement to 16 the drastic remedy of disqualification. Because the Court determines that Mr. Tollner need not be disqualified from representing 17 18 Plaintiffs in this case, the Court need not address Defendants’ arguments that any conflicts of 19 interest must be imputed to counsel at the Corsiglia law firm. 20 IV. 21 CONCLUSION For the foregoing reasons, Defendants’ motion to disqualify Plaintiffs’ counsel is hereby 22 DENIED. 23 IT IS SO ORDERED. 24 25 26 Dated: May 13, 2015 _______________________________ LUCY H. KOH United States District Judge 27 28 13 Case No. 14-CV-04118-LHK ORDER DENYING DEFENDANTS' MOTION TO DISQUALIFY

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