Neal

In Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 , 36 Cal.Rptr.2d 537 , 885 P.2d 950, the California Supreme Court recognized the presumption that exists when a client seeks to disqualify a former lawyer in subsequent litigation. The court held: "[W]here a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a `substantial relationship' between the subjects of the antecedent and current representations." ( Ibid. ) Once a substantial relationship exists, it is presumed that the lawyer who the former client seeks to be disqualified is in possession of confidential information pertinent to the present lawsuit and disqualification is mandatory. ( Ibid. ) The same presumption applies when an attorney has an of counsel relationship with the prior attorney. ( People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135 , 1144 1156, 86 Cal.Rptr.2d 816 , 980 P.2d 371 .) But what happens when a lawyer is representing a plaintiff in an existing lawsuit and is subsequently…

I. Introduction

In Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 [ 36 Cal.Rptr.2d 537 , 885 P.2d 950 ], the California Supreme Court recognized the presumption that exists when a client seeks to disqualify a former lawyer in subsequent litigation. The court held: “[W]here a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a ‘substantial relationship’ between the subjects of the antecedent and current representations.” (Ibid.) Once a substantial relationship exists, it is presumed that the lawyer who the former client seeks to be disqualified is in possession of .confidential information pertinent to the present lawsuit and disqualification is mandatory. (Ibid.) The same presumption applies when an attorney has an of counsel relationship with the prior attorney. (People ex rel. Dept, of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144-1156 [ 86 Cal.Rptr.2d 816 , 980 P.2d 371 ].) But what happens when a lawyer is representing a plaintiff in an existing lawsuit and is…

I concur in the result because California law appears to, be that a trial court may not disqualify an attorney for mere exposure to confidential information of the opposing party—that is, when there is no evidence that the attorney actually received or used such information. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 589 [ 283 Cal.Rptr. 732 ] [“Mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification”]; Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 302-304 [ 106 Cal.Rptr.2d 906 ]; Maruman Integrated *851 Circuits, Inc. v. Consortium Co. (1985) 166 Cal.App.3d 443, 448 [ 212 Cal.Rptr. 497 ].)

I write separately, however, because I share the trial court’s unease with the facts here. Health Net, Inc., legal department employee Cynthia Brockett (Brockett) undisputedly accessed litigant Khybrette Neal’s (Neal) Health Net legal file and then, while still an employee of Health Net, met Neal’s attorney, Michael S. Traylor (Traylor) concerning her claim against Health Net. Brockett retained Traylor as her lawyer in connection with her claim. Both Brockett’s and Neal’s claims were for wrongful termination…