These two disqualification decisions come from the same federal district judge in the same week applying the same test — but with different outcomes.
The first case involves a dispute over “who owns the rights to Cat Story, a free mobile application (‘app’) in which players build a virtual village for cats shipwrecked on an island and send the cats on various quests and adventures.” The lawyer previously represented the gaming company, Game Garden, “in a 2013 dispute among Game Garden’s four then-owners involving the same intellectual property [then called PussyVille instead of Cat Story] and . . . in connection with the September 2013 sale agreement that is the subject of Plaintiffs’ cause of action for breach of contract.” The lawyer claimed, however, that she did not represent the gaming company (but only two of the then-owners) and that the representation did not bear a substantial relationship to the current dispute over the rights to the game. The lawyer’s claim not to have represented the company fell flat because the lawyer had referred to herself as the company’s lawyer in a letter and an email and had billed the company for her services. It did not matter to the court that the company may not have been the lawyer’s “primary client.” Moreover, the court concluded that the lawyer “played an integral role in drafting, revising, and finalizing the very sale agreement that Plaintiffs now allege was breached . . . .” Because the court thus found a substantial relationship between this matter and the former matter, the court “automatically” disqualified the lawyer without considering further factors and gave the plaintiffs twenty-one days to find successor counsel or show cause why the case should not be dismissed. The full opinion is available here: Epikhin v. Game Insight N. Am., No. 14-CV-04383-LHK (N.D. Cal., May 12, 2015).
The next day, the district judge again analyzed a substantial relationship, this time involving a lawyer who had served as a board member and executive director of an autism school from 1996-2005. The plaintiff-student in the current matter claimed that from 2010-2012, the defendant-school committed various torts against the student. The lawyer eventually associated as co-counsel for the student. The court first struggled with whether the substantial relationship test applied at all because the lawyer had served the school as a director, not as a lawyer. But because previous California cases had applied a similar substantial relationship test (arising in part from a continuing fiduciary duty of confidentiality to the school), the court applied the test. Given that the lawyer’s tenure on the board and as the executive director did not overlap with the student’s time at the school (indeed, the lawyer had resigned five years before the student enrolled), the court found very little related, much less substantially related, to the present matter. The court did note that the lawyer “exercised discretionary authority for [the school] and was intimately familiar with [the school]’s operations.” But to the court the lawyer’s general knowledge was insufficient: any financial information of the school is available to the public or likely discoverable, any ten-year-old litigation strategy would hardly be helpful to the student, and “even assuming [the lawyer] did acquire knowledge regarding the inner-workings of [the school] from 5-10 years ago, Defendants failed to establish how this knowledge would be related to the specific injuries and abuses suffered by” the student. Accordingly, the court denied the motion to disqualify the lawyer. The full opinion is available here: McElroy v. Pac. Autism Ctr. for Educ., No. 14-CV-04118-LHK (N.D. Cal., May 13, 2015).
Interestingly, the apparently active Northern District of California actually issued not just two but four disqualification-related orders last week. In the third order, the district court, sua sponte, ordered briefing on whether a plaintiff’s lawyer should be disqualified for serving as both a lawyer and a witness. In reviewing a motion for summary judgment and the parties’ related factual submissions over three years after the case had been filed, the judge viewed a video surprisingly showing the plaintiff’s lawyer present at the very same school protest at issue. (This suit involves the way in which UC-Berkeley and others handled the Occupy Cal protests.) The judge’s DQ briefing order is available here: Felarca v. Birgeneau, No. 11-cv-05719-YGR (N.D. Cal., May 12, 2015). Finally, in the fourth order, the district court refused to disqualify a lawyer who had once advised the plaintiff “how to best negotiate an executive agreement” with potential employers. Because the current matter instead involved the plaintiff’s discrimination and defamation claims against a later employer, the court found the two matters “wholly unrelated.” The full order is available here: Somers v. Digital Realty Trust, Inc., No. C-14-5180 EMC (N.D. Cal., May 15, 2015).