Low, Ball & Lynch’s
WEEKLY LAW RESUME
December
16, 2004 Issue By: Mark
Hazelwood
Civil Procedure - Experts -
Disqualification
Helen Brand v. 21st Century
Insurance Company
Court of Appeal, Second District
(December 1, 2025)
We recently published another case dealing with disqualification of an
attorney due to prior representation of the party he was suing. This case
concerns the disqualification of an expert attorney because of a prior
relationship with the adverse party.
From 1988 to 1991, 21st Century retained Barry Zalma and his firm to render
coverage opinions in connection with coverage and bad faith claims. A
great number of the disputes involved homeowners policies. Mr. Zalma also
represented 21st Century in legal actions. He taught adjusters in
seminars proper claims handling procedures.
Helen Brand sued 21st Century for damage to her home due to mold caused by a
water leak. During the course of litigation, she designated Zalma as an
expert to testify on 21st Century's claim handling. 21st Century moved
for protective order barring Zalma from testifying as an expert. The
trial court denied the motion. 21st Century filed a petition for writ of
mandate in the Court of Appeal seeking to disqualify Zalma. When that was
denied, 21st Century filed an appeal.
The Court of Appeal reversed. An attorney who has severed a
relationship with a former client may not do anything which will injuriously
affect his former client in any manner in which the attorney represented the
client, nor may the attorney use against his former client knowledge or
information acquired by reason of his previous relationship.
Disqualification follows where a substantial relationship exists between the
lawyer's current employment and the representation of the former client.
The tests that have evolved requires the court to inquire whether confidential
information material to the current dispute would normally have been imparted
to the attorney by virtue of the former relationship. If confidences
could have been exchanged, the courts will conclusively presume they were
exchanged. Only if the attorney shows no opportunity for confidential
information to be divulged will disqualification not follow.
Disqualification depends upon the similarity between the legal problem involved
in the former representation and the legal problem involved in the current
representation.
The trial court must first identify where the attorney's former
representation placed the attorney with respect to the prior client. If
it was direct and personal, disqualification follows if there was a connection
between the two successive representations. If the attorney did not have
a direct personal relationship with the former client, the court must assess whether
the attorney acquired confidential information relevant to his current
representation, given the similarities or lack thereof between the two matters.
In this case, there was a substantial relationship between Zalma's current
and prior engagement. The matters substantially related to the same
issues in both engagements. He was aware of 21st Century's claims
handling policies and procedures. His testimony in this case arose from
the same type of work he did for 21st Century. As a result, confidences
could have been exchanged in his prior engagement that would affect his
testimony in his current engagement. The Court stated they would
conclusively presume confidences were exchanged, and disqualification resulted.
Neither failure to recall any specific information by Zalma nor the passage
of 12 years overcame this presumption. As the involvement in these two
matters was direct and personal and the two representations were substantially
related, the Court concluded the trial court abused its discretion in denying
the motion to disqualify Zalma and bar him from testifying against his former
client. The Court therefore directed the trial court to enter a new order
of disqualification.
COMMENT
This case and the prior Farris case give some solace to carriers that
they may impart information to attorneys without fear that it will later be
used against them by that attorney either in representing a client or as an
expert witness to testify against them. This rule protects the client
against disclosure of confidential information in subsequent litigation.
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