No Confidences, No Disqualification

The Nevada Supreme Court denied a petition for relief filed when the trial court declined to disqualify counsel.

We conclude that the Nevada Rules of Professional Conduct operate to disqualify a lawyer only when that lawyer, while employed at his former firm, gained actual knowledge of information protected by rules of confidentiality. In particular, if a lawyer acquired no confidential information about a particular client while at his former law firm and that lawyer later joins another firm, neither the lawyer nor his current firm are disqualified from representing a different client in the same or related matter even though the interests of the former and current clients conflict. We therefore deny the petition.

The story

In 2007, the law firm Hall Jaffee & Clayton (HJC) defended petitioner New Horizon Kids Quest III, Inc., in a tort action, namely Robann C. Blue, a Minor, by and through her Guardian ad Litem, Sandi Williamson v. New Horizon Kids Quest III, Inc. (Blue). Only two attorneys at HJC participated in HJC’s representation of petitioner in Blue. Ultimately, the district court dismissed Blue with prejudice through stipulation and order.

For about the last half of HJC’s representation in Blue, Jordan P. Schnitzer worked as an associate attorney at the firm. However, Schnitzer never represented petitioner in Blue or obtained confidential information regarding petitioner while employed at HJC. In 2011, Schnitzer left HJC to join the law firm Kravitz, Schnitzer & Johnson, Chtd. (KSJ). 

In 2014, Martin J. Kravitz from KSJ filed a tort action on behalf of real parties in interest Isabella Godoy, a minor, by and through her mother Veronica Jaime, against petitioner. After accepting this case, Kravitz discovered that HJC defended petitioner in Blue. He knew that Schnitzer previously worked at HJC and further inquired into Schnitzer’s involvement in Blue. Schnitzer told Kravitz that he “had absolutely no knowledge about the Blue case” and confirmed that he had not gained any confidential information concerning petitioner while at HJC. Thus, Kravitz determined screening was not required and permitted Schnitzer to assist on this case.

In 2015, petitioner also discovered that Schnitzer worked at HJC during part of its representation in Blue. Petitioner then filed a motion to disqualify real parties in interest’s attorneys, Kravitz and Schnitzer. Based on Schnitzer’s affidavit denying obtainment of any confidential information concerning petitioner, and an affidavit from an attorney at HJC who participated in Blue confirming that Schnizter had not worked on that case, the district court concluded that Schnitzer never obtained confidential information from Blue. The court further concluded that the cases cited by petitioner in support of its position were distinguishable. Ultimately, the district court denied the motion. Petitioner then filed the instant petition for a writ of mandamus seeking review of the district court’s order. Real parties in interest filed a timely answer, and oral argument was held.

Resolution

…petitioner argues that a presumption of imputed knowledge applies, and thus, Schnitzer and KSJ are disqualified based upon HJC’s prior representation of petitioner in Blue. In contrast, real parties in interest argue that such a presumption of shared confidences does not apply due to the absence of evidence indicating that Schnitzer acquired confidential information regarding petitioner while employed at HJC. We agree with real parties in interest and conclude that petitioner’s interpretation of the RPC is too strict in light of the lack of evidence showing that any confidential information was gained…

The plain language of RPC 1.9(b) requires that a lawyer be disqualified if (1) the current representation is materially adverse to the attorney’s former firm’s client, and (2) the attorney acquired confidential information about the client that is material to the current representation, unless the attorney’s former firm’s client gives informed consent. The requirement that the attorney actually acquire confidential information about his former firm’s client is not a presumption; rather, it is a factual matter for the district court to resolve. In the absence of an attorney acquiring such confidential information, it follows that the attorney is not disqualified, and imputed disqualification pursuant to RPC 1.10 does not apply. Therefore, we conclude that the district court appropriately ended its inquiry when it determined that Schnitzer never obtained any confidential information.

(Mike Frisch)