that presumption should be rebuttable. The court found that based on the particular facts in the case, including affidavits from "all of the remaining members of the Hume firm" that they lacked any knowledge of the substantially related matter in which the former partner had represented Baxter while with Hume, id. at 196 n.4, the presumption had been rebutted. Id. at 197.
Irell points out that the Ninth Circuit remanded a case with instructions to the district court to consider a motion to disqualify counsel in light of both Trone and Novo. Bank of America Nat'l Trust & Sav. Ass'n v. Summerland County Water Dist., 767 F.2d 544, 549 (9th Cir. 1985). Irell fails, however, to discuss Trone. The Ninth Circuit in Trone limited Novo to its facts. 621 F.2d 994, 1001 n.5 ("On those facts, we might agree, although the question is not before us."). Trone applied the substantial relationship test as discussed above. Irell does not offer, as the Hume firm did, declarations from all remaining members, but only from those who charged time on the Cygnus case. With a firm the size of Irell, proving that all members are untainted becomes nearly impossible. This is not a reason, however, to assume that client confidences were not divulged to remaining lawyers. The Court has no information about the knowledge that other current Irell attorneys may have learned from those who have since left in casual conversation, firm retreats, etc. In Trone itself, in which the tainted attorney was still at the firm, the court stated that "the firm as a whole is disqualified whether or not its other members were actually exposed to the information." Id. at 999.
While one district court in this Circuit has found the presumption of shared information to be rebuttable, United States v. Titan Pacific Construction Corp., 637 F. Supp. 1556, 1564 (W.D. Wash. 1986), this Court does not consider that to be the law of the Ninth Circuit or of California, especially in light of Paul E. Iacono. 722 F.2d at 442 (reiterating that an entire firm must be disqualified "when one of its members was counsel for an adverse party in a substantially related matter."). Because the Model Rule's invitation to a swearing match between a client and its former lawyers is contrary to state law, which under Local Rule 110-3 binds this Court, the Court declines to accept the invitation to judge such a match between Cygnus and Irell. Irell's lengthy representation of Cygnus in a substantially related matter is grounds for its disqualification because of the irrebuttable presumption, grounded in common sense and the need to protect the fiduciary nature of the attorney-client relationship, that its current attorneys have confidential information relevant to its current representation of Elan.
Even if the presumption of shared knowledge were rebuttable when the "tainted" attorneys had left a firm, it has not been rebutted in this case. The Court has only Irell's unavoidably self-serving declarations as rebuttal evidence. Against this, the Court must weigh several other facts. Ciotti, and other departed lawyers, had material, confidential information substantially related to the current representation. They worked as sole intellectual property counsel for Cygnus for four years. Dull and Rothman were based in Menlo Park at least some of the time, while Chu, lead counsel for Elan, visited occasionally. The degree to which any of these men may have had conversations about the Cygnus account with Ciotti while working in a small office can never really be resolved by a swearing match. As mentioned above, the Court has no evidence about the degree of information sharing between the tainted attorneys and other Irell attorneys whose declarations are not given. Cost and Rothman each admittedly worked on a project at least tangentially related to the current representation. Additionally, Irell has been able to produce two documents related to the current matter even after all files were supposedly transferred to Morrison & Foerster. There are just too many loose ends to rebut the presumption that current Irell attorneys have confidential information material to the current dispute between Elan and Cygnus. The Court, reading the stack of declarations from Irell attorneys, all proclaiming their ignorance of Cygnus-related matters, is reminded of the words of Hamlet's mother: "The lady doth protest too much, methinks." William Shakespeare, Hamlet, act 3, sc. 2.
Additionally, those declarations are insufficient to rebut the presumption of shared confidences because in the Ninth Circuit, as in the state courts, confidentiality is not the only ethical issue involved in prior representation.
The rule [that it matters not whether confidences were in fact imparted to the lawyer] is necessary to implement the following canons of professional ethics: Canon 1 (maintaining integrity and confidence in the legal profession); Canon 4 (preserving confidences and secrets of a client); Canon 5 (exercise of independent professional judgment); Canon 6 (representing a client competently); Canon 7 (representing a client zealously within the bounds of the law); Canon 9 (avoiding even the appearance of professional impropriety).
Trone, 621 F.2d at 999; see also Employers Ins. of Wausau v. Albert D. Seeno Const. Co., 692 F. Supp. 1150, 1163 (N.D. Cal. 1988). The fiduciary relationship between attorney and client, a relationship of the "highest character," cannot be lightly undone by protests, no matter how numerous or how sincere. In this case, there is not sufficient evidence to rebut the presumption of shared confidences while maintaining the standards of professional responsibility established by the legal profession for its self-governance.
The Court will not undermine the attorney-client relationship by turning an indifferent eye to a firm representing the adversaries of former clients. The time-honored rules designed to protect clients and the honor of the legal profession are no less meaningful in a time of mergers and "de-mergers." Because Irell previously represented Cygnus for four years on a substantially related matter, because its remaining lawyers are presumed to share the client confidences revealed in that representation, and because Irell seeks by this representation of Elan to attack the very fruits of its work as intellectual property counsel to Cygnus, the Court holds Irell to the level of conduct suitable to a fiduciary and
IT IS HEREBY ORDERED that Elan's motion to disqualify the law firm of Irell & Manella is GRANTED.
Dated: November 16, 1992.
William H. Orrick
United States District Judge