California Court of Appeals, Second District, Eighth Division
ORIGINAL PROCEEDING. Petition for writ of mandate. Los Angeles County Super. Ct. No. BC500970 Rolf M. Treu, Judge.
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Livingston Bakhtiar, Ebby S. Bakhtiar; Shegerian & Associates and Carney Shegerian for Petitioner.
No appearance for Respondent.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Christine T. Hoeffner and Philip Reznik for Real Party in Interest.
RUBIN, Acting P. J.
In Cho v. Superior Court (1995) 39 Cal.App.4th 113 [45 Cal.Rptr.2d 863] (Cho), the Court of Appeal held that when a judicial officer receives confidential information from a party while presiding over a settlement conference, and the judicial officer subsequently joins a law firm, that law firm may not represent an opposing party in the same action, regardless
whether the law firm establishes screening procedures to prevent the former judicial officer from having any involvement with the case. As the court explained: “No amount of assurances or screening procedures, no ‘cone of silence, ’ could ever convince the opposing party that the confidences would not be used to its disadvantage. When a litigant has bared its soul in confidential settlement conferences with a judicial officer, that litigant could not help but be horrified to find that the judicial officer has resigned to join the opposing law firm – which is now pressing or defending the lawsuit against that litigant. No one could have confidence in the integrity of a legal process in which this is permitted to occur without the parties’ consent.” (Id. at p. 125, fn. omitted.)
In this case, we hold the same standard applies when an attorney serves as a settlement officer in a mandatory settlement conference conducted by a judge and two volunteer attorneys. If the attorney receives confidential information from one of the parties to the action, that attorney’s law firm may not subsequently agree to represent an opposing party in the same action, regardless of the efficacy of the screening procedures established by the law firm.
In this writ proceeding, the plaintiff challenges an order denying its motion to disqualify a law firm that substituted in to represent the defendant approximately six months after one of the law firm’s attorneys served as a settlement officer in the case. The trial court ruled the law firm could represent the defendant because, even assuming the attorney received confidential information during the settlement conference – an issue the trial court did not resolve – the law firm had established adequate screening procedures to ensure the attorney did not discuss the case with anyone at the firm. We hold this was error. Because the trial court did not resolve the disputed factual question whether the attorney received confidential information while serving as a settlement officer, we grant the petition and remand for further proceedings so the trial court can determine whether the attorney was privy to any confidential information.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2013, petitioner Jesus Castaneda filed this action for wrongful termination, violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and related claims against his former employer, real party in interest Perrin Bernard Supowitz, Inc. (the employer).
In December 2013, and pursuant to rule 3.1380 of the California Rules of Court, the trial court ordered the parties to participate in the Los Angeles
County Superior Court’s CRASH settlement conference program for employment cases. CRASH – which stands for Civil Referee Assisted Settlement Hearing – is a mandatory settlement conference program. Although the record contains no official documentation describing the mechanics of the CRASH program, the parties agree that three persons conduct a CRASH settlement conference – a judicial officer and two volunteer attorneys.
The settlement conference took place at the end of January 2014. One of the two attorney panelists was Elsa Banuelos, then senior counsel with the law firm of Ballard Rosenberg Golper & Savitt (the Ballard law firm).
The case did not settle. In late July 2014 – a little less than six months after the settlement conference – Ballard law firm partner Linda Miller Savitt substituted in to represent the employer in the action. According to Savitt, she was unaware that Banuelos had served as a settlement officer in the case.
About three weeks after the substitution of counsel was served, counsel for Castaneda, Ebby Bakhtiar, e-mailed Savitt, informed her of Banuelos's involvement in the settlement conference, and inquired whether she and the Ballard law firm intended to withdraw as counsel for the employer. Savitt responded by e-mail, noting that she “knew nothing about the case from [Banuelos] and [Banuelos] is not on the file and will not be doing any work on it.... We only have files from the client or from prior counsel.” Savitt stated she did not intend to disqualify herself. Castaneda filed a motion to disqualify the Ballard law firm the following day.
According to the disqualification motion, during the settlement conference, “[Settlement Officer] Banuelos received ex-parte confidences concerning the merits of Plaintiff’s case, his trial strategy, legal analysis and other highly confidential appraisal and evaluations, which his attorney would not have divulged had it not been for the confidential setting of the conference.” The motion was supported by declarations from two of Castaneda’s attorneys. Ebby Bakhtiar stated in his declaration that he participated in the settlement conference telephonically. He claimed: “During the conference, I was called by the Judge in charge of the matter and placed on speaker phone. At that time, I was informed that the defense was not present and [was] asked
questions about the case. Accordingly, I answered the questions and in so doing, I openly discussed Plaintiff’s trial strategy, legal analysis, bottom-line settlement figures and revealed [rather] highly confidential evaluations I had made. When I engaged in the above discussions with the CRASH panel, I spoke candidly about the strengths and weaknesses of Plaintiff’s case, divulging important information in confidence. I would not have disclosed any such information had it not been for the confidential nature of the conference.” Bakhtiar did not specify who was present at the conference or who informed him the defense was not present when he allegedly disclosed confidences during the telephone conference.
The second attorney declaration in support of the disqualification motion was from David Harris who, in contrast to Bakhtiar, was physically present at the conference. Harris stated in his declaration: “During the conference, I was introduced to the panelists, one of whom was Elsa Banuelos. The conference lasted several hours, during which I answered questions about the case directed to me by the panelists, including Banuelos, while outside of the presence of defense counsel. In so doing, I freely discussed Plaintiff’s trial strategy, legal analysis and revealed other highly confidential evaluations [that] I, Mr. Bakhtiar and Mr. Shegerian [another of Castaneda’s attorneys] had made. When I engaged in the above discussions with the CRASH panel, including Banuelos, I spoke candidly about the strengths and weaknesses of Plaintiff’s case, divulging important information in confidence. I would not have disclosed any such information had it not been for the confidential nature of the conference.”
Harris also maintained that defense counsel were not present when the settlement panel conducted the telephone conference with Bakhtiar and that, during this conference, “Mr. Bakhtiar responded to the Judge’s and panelists’ questions about the case, providing his thoughts, his impressions, his evaluations and also discussed settlement figures, etc.”
The employer opposed the motion. It argued that “no confidential information was conveyed to Ms. Banuelos at the... settlement conference.” The employer offered several declarations in support of this assertion. One was from Banuelos, who stated that while she did “not recall details of the case, ” she remembered that the judge presiding over the conference was upset that Bakhtiar was not physically present. According to Banuelos, the entire telephone conference with Bakhtiar took place in the presence of defense counsel and other employer representatives, and the judge specifically pointed this out to Bakhtiar. Banuelos also maintained that, at no point during the conference did Bakhtiar or his associate who was physically ...