Calif. Team Gets Alternative Writ Issued on Disqualification

San Francisco Partner Pamela M. Ferguson and San Diego Appellate Partner Lann G. McIntyre and Appellate Associate Brittany H. Bartold recently persuaded a California Court of Appeal to issue an alternative writ of mandate in a case in which a motion to disqualify Lewis Brisbois from representing two defendants had been granted.

The motion to disqualify was based on the fact that a current Lewis Brisbois associate had previously been employed by another law firm that represented the remaining co-defendant.

We argued that the superior court erred in disqualifying Lewis Brisbois because the moving party had waived the conflict. We further argued there was strong evidence the motion was being used as a tactical device, including emails from opposing counsel suggesting a quid pro quo offer that the disqualification motion would not be filed if our clients withdrew their cross claims and entered into a joint defense agreement with the co-defendant. Furthermore, the co-defendant waited more than 14 months to file the motion without offering an explanation for the delay.

The Court of Appeal granted the alternative writ directing the superior court to conduct a hearing on the issue of whether the moving co-defendant had unreasonably delayed bringing the motion for disqualification.

The appellate court guided the superior court to address the four laches factors set forth in River West Inc. v. Nickel when deciding whether a more than 14-month delay between the time the potential conflict first surfaced and the filing of the motion to disqualify constituted unreasonable delay, which caused prejudice to the parties represented by Lewis Brisbois.

The superior court has since set a briefing schedule and will hold a hearing on the matter in January 2017.