Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC335471 Rolf M. Treu, Judge.
Anderson & Anderson, Steven A. Micheli; The Torgow Law Firm and Martha A. Torgow, in pro. per., for Defendant and Appellant.
Gutierrez, Preciado & House and Calvin House for Plaintiff and Respondent.
COOPER, P. J.
Defendant Martha Torgow (Torgow), former general counsel of plaintiff Los Angeles Community College District (LACC), appeals from a judgment after court trial, enjoining her for five years from representing, without informed, written consent, any current or former LACC employee with interests adverse to LACC, including two named professors. We conclude that the judgment is both overbroad and unsupported by the showing necessary to disqualify an attorney from represention adverse to a former client. We therefore reverse.
FACTS
The complaint, filed in June 2005, alleged as follows. Between 1991 and 1996, Torgow served as general counsel of LACC, “a collection of nine public colleges.” Torgow provided legal advice on LACC’s legal matters, including employment discrimination claims and employee grievances, and concerning Mission College (Mission), one of LACC’s colleges. She also gained intimate knowledge of LACC’s structure and decisional processes. Torgow regularly interacted with Camille Goulet, the associate general counsel, who later succeeded her as general counsel.
Beginning in December 2004, Torgow undertook representation of Mission employee John Morales, in an internal grievance and discrimination complaint. LACC alleged that this representation was substantially related to Torgow’s previous representation of LACC, because it had involved confidential information and supervision of internal grievance and employee discrimination matters. Lacking LACC’s consent, Torgow’s representing Morales violated Rule 3-310(E) of the State Bar Rules of Professional Conduct (rule 3-310(E)), which precludes an attorney from representation adverse to a former client, if the attorney obtained confidential information from the prior representation that is material to the new employment.
Rule 3-310(E) states as follows: “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.”
Disagreeing with LACC’s interpretation of rule 3-310(E), Torgow had refused to stop representing Morales, and had indicated she might undertake similar claims involving Mission. LACC sought a declaration that Torgow’s representation of Morales violated the rule, and that her representation of any LACC employee was impermissible because it was adverse to LACC. LACC also requested that Torgow be permanently enjoined from “representation of interests adverse to” it.
LACC applied for a temporary restraining order. The writs and receivers judge denied it, but issued an order to show cause re preliminary injunction. After a hearing, the court preliminarily enjoined Torgow from representing Morales, and also Jose Maldanado, another Mission professor who had engaged Torgow with respect to a discrimination and harassment claim within LACC. The court did not, however, find a clear likelihood of LACC prevailing on its request for a blanket injunction.
The matter proceeded to trial, before another judge. Documents introduced showed that Morales had filed a discrimination complaint regarding his 2004 evaluation as Mission’s social science department chair. His complaint more generally alleged discrimination against others, including Maldonado, and it listed Charles Dirks as among several individuals who had discriminated. The complaint was denied internally in May 2005, and Torgow filed Morales’s appeal to LACC’s board of trustees. Maldonado’s complaint named several Mission administrators and faculty, including Dirks, and alleged discrimination and harassment against both Maldonado and a Latino student organization (MEChA) of which he was adviser, largely involving interference with campus events, but also concerning the hiring of “Mexicans” in the social science department.
LACC’s principal trial witness was Goulet, the current general counsel. She described Torgow’s responsibilities as general counsel, including appearing at both public and closed sessions of LACC’s trustees’ meetings, where she advised on pending or impending litigation. Torgow and Goulet either handled litigation against LACC in-house, or referred it to outside counsel, whom they supervised. Litigation was principally Goulet’s responsibility.
In her service with Torgow, Goulet had encountered employment matters, including some from Mission. In 1994, Dirks had protested the handling of a sexual harassment claim against him, as itself constituting such harassment, and another professor, Goldberg, had allegedly choked a colleague. Goulet had made Torgow aware of the latter incident, and Mission’s president had asked her to review a letter he prepared the same day, barring Goldberg from teaching until he consulted a professional. Torgow had discussed Dirks’s charge with others at LACC by e-mail.
Goulet recalled three race-related issues at Mission that arose during her tenure with Torgow: a claim by an administrator that he had been forced out of his college because he was Latino, claims of racial considerations in hiring, and sexual harassment claims against faculty members. Torgow and Goulet devised a procedure, adopted by the trustees, for channeling and processing internal racial discrimination claims. LACC also had procedures for employment discrimination and sexual harassment claims. These procedures all were public record.
When she became aware that Torgow was representing Morales, Goulet refused to recognize Torgow as his counsel. Besides Torgow’s familiarity with LACC’s legal affairs, Goulet perceived conflicts with respect to Dirks and also Goldberg, because Morales too had complained that Goldberg had assaulted him. Goldberg had recently been elected chair of the Mission’s social sciences department, previously Morales’s position.
Morales testified he had been head of Mission’s social sciences department until 2005, when he was outvoted and replaced by Goldberg. That election is a factor in his discrimination complaint and grievance. He also was aware of Goldberg’s prior assault and reputation for temper, as well as Dirks’s having been the subject of sexual harassment claims. In 2005, Goldberg also assaulted Morales, and he claims that Goldberg treated him inappropriately. With Torgow preliminarily enjoined, Morales had not been able to find another lawyer who was qualified, willing, and amenable to a contingent fee – so his case had been halted.
Jose Maldonado, an associate professor of Chicano studies and history at Mission, testified that the group MEChA had asked him to succeed Morales as their adviser when Morales became a department chair in 2002. In May 2005, Maldonado personally filed an internal complaint, about discriminatory treatment of himself and MEChA. Morales referred him to Torgow. Maldonado’s complaint was derailed because he did not appear for an interview. He would not do so without an attorney; Torgow had been preliminarily enjoined from representing him; and others he consulted were unsuitable. Maldonado also filed a grievance against Goldberg, in 2006. He believes that Goldberg discriminated against him.
Testifying as the final witness, Torgow acknowledged her extensive duties as general counsel. She had advised LACC’s board, chancellor, vice chancellors, and college presidents. The board completely changed membership after she left, and she never advised any of the present members. Mission’s administration also is new to her.
Torgow advised the board about employment matters. Her office prepared procedures for discrimination complaints and sexual harassment complaints, which the board approved. The office also received copies of many discrimination complaints, which were initially handled by a separate agency.
Torgow described Mission as incredibly divided, because of changing demographics. There now were many more Hispanic students, with MEChA and a Chicano studies faculty, including those hired by Morales. The older, entrenched faculty felt insecure, that they were losing ground. The faculty had opposed having a full-time Chicano studies faculty, but now it is the most popular department.
Torgow had been approached by others seeking to retain her for claims against LACC. She had agreed to one, but told the others the outstanding injunction will prevent it.
In its statement of decision, the trial court found – based on factors reviewed below – that there existed a substantial relationship between Torgow’s representation of LACC as its general counsel “and her representation of current or former District employees whose interests are adverse to the District.” There was also a close relationship between the subject matters of the former representation and those of “the current and proposed representations.” Accordingly, a conclusive presumption of acquisition of confidential information applied, and Torgow’s “representation of current or former District employees whose interests are adverse to the District violates Rule 3-310(E).”
Concluding that Torgow’s former position posed a “threat of a conflict” when she consulted with LACC employees or former employees with adverse interests, the court found it appropriate to enjoin Torgow from all such representation, absent LACC’s informed consent. However, under the court’s power to modify an injunction for change of circumstances, Torgow would be allowed to apply for permission to undertake a particular representation, to be considered in camera.
The injunctive judgment followed. It enjoined Torgow from representing Morales, Maldonado, and any other LACC employee or former employee whose interests were adverse to the district, without written consent of LACC, for five years, or until July 2011.
DISCUSSION
As rule 3-310(E) reflects (ante, fn. 1), the value protected by limiting successive representation of a former client and an adverse new client is confidentiality of information and advice exchanged during the former representation. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 (Flatt).) To circumvent self-defeating contests about what confidential information was so disclosed, the governing rule is that the attorney is disqualified if the former client demonstrates that there is a “substantial relationship” between the subjects of the former and present representations. (Ibid.) In this context, the “subject” of the representation has been variously defined as embracing “the legal issue” (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847 (City and County of San Francisco)), “subject matters, facts, or issues” (H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1453), or “information material to the evaluation, prosecution, settlement or accomplishment of the litigation or transaction given its specific legal and factual issues.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 712-713.) Where such a substantial relationship exists, “access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed,” and disqualification is mandatory. (Flatt, supra, 9 Cal.4th at p. 283; see City and County of San Francisco, supra, 38 Cal.4th at p. 847; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146.)
We apply this test first to Torgow’s representation of Morales and Maldonado, in their administrative complaints alleging discrimination against them at Mission. In its statement of decision, the trial court enumerated numerous facts and factors regarding Torgow’s 1991-1996 representation of LACC that allegedly gave rise to a substantial relationship between that representation and her 2004-2005 representation of Morales and Maldonado, as well as other representation of employees with interests adverse to LACC. These facts, however, did not establish the requisite relationship.
The court first referred to Torgow’s advising and exchanging confidential information with LACC’s governing officials, including the chancellor and trustees, concerning LACC’s legal affairs. This reality, however, does not establish any particular matter substantially related to Torgow’s present representation. Prior representation per se does not generate a disqualification from any future adverse representation. (Rule 3-310(E); Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal.App.4th 671, 680.) Equally nondispositive is the finding that Torgow gained intimate knowledge of LACC’s organizational structure and decision-making processes. Such knowledge does not support disqualification unless it is shown to be either “directly in issue or of critical importance” to the present representation. (Ibid.; accord, Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 69.) No such showing was made or documented.
The court also referred to Torgow’s having trained Goulet and shared functions and information with her. Those general facts too were not shown to be substantially related to Torgow’s representation of Morales or Maldonado.
The trial court further observed that as general counsel Torgow was heavily involved in employment and discrimination matters. More particularly, the court found that Torgow not only advised the board about such matters, but was copied on most discrimination complaints, advised district managers about administrative agency complaints, and was familiar with the procedures for resolving internal employee complaints and internal discrimination complaints, which process she was involved in creating.
These facts too failed to establish a substantial relationship with Torgow’s representation of Morales and Maldonado. That Torgow had served and counseled LACC with respect to employment and discrimination matters did not disqualify her from any particular case, without a more specific relationship, just as she was not disentitled from invoking a publicly known complaint procedure because she had designed it. “[E]ven where the two representations involve the same general subject, disqualification is not required if the nature of the factual and legal questions posed are not similar.” (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 711.) Moreover, the underlying evidence did not show prior matters that possessed a substantial relationship with the subjects of Torgow’s present representations.
Regarding the Morales and Maldonado cases specifically, the court first described their complaints as concerning “ongoing and pervasive” discrimination at Mission. That factor did not link Torgow’s present representation to any prior representation involving Mission. The court then noted that Dirks and Goldberg were subjects of complaints by Morales and Maldonado; that Torgow had been informed in 1994 of Goldberg’s assault allegation; and that she had known of and discussed how to handle Dirks’s complaint about his sexual harassment charge.
Although Torgow offered “the current situation at Mission” as an example of a large-scale problem of the type that would have come to the attention of her office, she did not encounter that situation as general counsel, 10 to 15 years before it existed.
These incidents did not establish substantially related representation. Torgow’s former discussion of Dirks’s complaint did not at all relate to Morales’s and Maldonado’s subsequent charges that Dirks was among several persons who had discriminated against them on ethnic grounds. Nor was there any relationship between Torgow’s brief involvement with Goldberg’s 1994 assault problem and the fact that Morales and Maldonado were claiming discrimination in some fashion by Goldberg.
If Torgow were representing Morales in a claim on account of Goldberg having assaulted him, there would exist a relationship between the subject of that representation and Torgow’s previous involvement with Goldberg’s 1994 incident – conceivably enough to disqualify Torgow from representation involving the new assault claim. But the evidence did not show either that Morales was proceeding with respect to the claimed assault, or that Torgow was representing him in that regard. Should such a situation arise or be shown, consideration of disqualification to that extent would be warranted.
We conclude that neither the facts found and cited by the trial court, nor the underlying evidence, demonstrated the substantial relationship necessary to justify precluding Torgow from representing Morales and Maldonado in their complaints within LACC. Moreover, the omnibus injunction, restraining Torgow for five years from representing any other current or former LACC employee “whose interests are adverse to the District,” was also improper. This portion of the judgment too was not grounded in proof of a substantial relationship between Torgow’s antecedent representation of LACC and any identifiable prospective claim. It amounted instead to a ruling that all representation of “adverse” employees or former employees of LACC was forbidden, a ruling that exceeded rule 3-310(E) and corresponding case law. Indeed, the court’s articulation of willingness to contemplate modification, for permissible representation, actually signaled the injunction’s overbreadth. The restraint also imposed an unwarranted and inequitable burden on Torgow, to clear her acceptance of clients with the court. Finally but most basically, it was not shown that Torgow was threatening to violate rule 3-310(E). The injunction was unwarranted.
DISPOSITION
The judgment is reversed. Defendant shall recover costs.
We concur: RUBIN J., EGERTION, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section six of the California Constitution.