Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Janet C. Pesak, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition granted. (Super. Ct. No. 30-2007-00100483).
The opinion of the court was delivered by: Sills, P. J.
CERTIFIED FOR PUBLICATION
Laura and Douglas Montgomery (the Montgomerys) are the plaintiffs in a medical malpractice action against physician Mark Knight. They petition for relief from the order of the trial court removing their only expert witness on the medical standard of care and causation. The trial court found the expert created an irreconcilable conflict of interest for Knight's counsel because he had represented the expert 10 years before. The petitioners contend the prophylactic removal was unnecessary because their expert waived any conflict of interest arising out of the previous representation. We agree and grant the petition.
In December 2007, the Montgomerys filed a complaint against Knight and Euclid Cosmetic Outpatient Surgery Center, alleging that Knight was negligent when performing liposuction on Laura, causing injury. Douglas alleged damages arising from the loss of his wife's consortium.
On March 23, 2009, the Montgomerys filed their expert designation, listing Laura's treating physicians and John M. Shamoun, a board certified plastic surgeon, who was expected to provide testimony on "the applicable standard of care, causation of damages and damages." At that time, trial was set for May 11, 2009.
Trial was continued to December 2009. In May, Knight filed a motion to preclude Shamoun from serving as the Montgomerys' expert because Knight's counsel, Terrence Schafer, had represented Shamoun in prior litigation. Schafer declared he had represented Shamoun in a prior medical malpractice case filed against him in 1999. Two days after the expert witness designation was filed, Schafer told the Montgomerys' counsel, Jerry Gans, about the conflict and asked him to voluntarily withdraw Shamoun as his expert, offering to give him more time to find another. Schafer pointed out that he had opposed Shamoun as an expert in another case against another former client of Schafer one year before. "For him to again agree to be an expert against another client of mine suggests that he is now seeking to create this conflict of interest." On April 28, Gans advised Schafer that Shamoun would "waive the conflict, subject to admissibility issues at trial."
The Montgomerys opposed Knight's motion, claiming there was no evidence that his counsel had represented Shamoun within the last 10 years or that his counsel had ever acquired any confidential information from Shamoun that would create an actual conflict of interest. Shamoun submitted a declaration stating, "I understand that my testimony in this matter may subject me to cross-examination in this adversarial proceeding . . . ." As the holder of the attorney-client privilege, Shamoun waived the privilege "as it applies to any relevant information to be presented in this matter."
The trial court granted the motion to disqualify Shamoun, explaining that its decision was based in part on a client's right to "vigorous representation." The court also told the Montgomerys' counsel, "[I]f Dr. Shamoun had simply disclosed this at the time you spoke to him . . . , we never would have gotten here . . . . [¶] It was his obligation to tell you as soon as you contacted him . . . ."
This case centers on the scope of an attorney's duty of confidentiality to a former client. This duty is set out in the Rules of Professional Conduct, rule 3-310(E): "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." It is also codified in the Business and Professions Code: "It is the duty of an attorney to do all of the following: [¶] . . . [¶] (e)(1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." (Bus. & Prof. Code, § 6068, subd. (e)(1).)
Typically, a former client seeks the disqualification of an attorney who has obtained, or could have obtained, confidential information about the former client during the previous representation and now represents a party adverse to the former client. (See, e.g., In re Charlisse C. (2008) 45 Cal.4th 145; Brand v. 20th Century Ins. Co. /21st Century Ins. Co. (2004) 124 Cal.App.4th 594; Western Digital Corp. v. Superior Court (1998) 60 Cal.App.4th 1471.) The case before us, however, presents a twist: Here, Knight and his attorney Schafer made a prophylactic motion to remove Shamoun, Schafer's former client, as the Montgomerys' expert. The intent of the motion was to preclude the Montgomerys from later moving to disqualify Schafer as Knight's attorney on the grounds that Schafer had obtained confidential information about Shamoun, which he could now use against the Montgomerys. Because the motion to remove Shamoun was based on preventing Schafer's subsequent disqualification, the correctness of the resulting order rests on whether Schafer should have been disqualified had such a motion been made.
A trial court's decision on a disqualification motion is reviewed for an abuse of discretion. "'[T]he importance of disqualification motions requires careful review of the trial court's exercise of discretion. [Citation.]' [Citation.]" (Western ...