Low, Ball & Lynch’s

WEEKLY LAW RESUME

July 15, 2004 Issue      By: Raymond Coates

Attorneys - Disqualification

Jason Farris v. Fireman's Fund Insurance Company

Court of Appeal, Fifth District

(June 17, 2026)

Strict rules govern the representation by an attorney of a client adverse to those of a former client.  This case concerns the potential disqualification of an attorney for a bad faith action against an insurance company for whom he had previously provided legal representation. 

This case was brought as a bad faith action against Fireman's Fund Insurance Company (FFIC) by a policyholder who claimed he was not defended in a personal injury action.  He was represented by James H. Wilkins and his firm Wilkins, Drolshagen & Czeshinski.  FFIC moved to disqualify Wilkins on the ground that he had formerly worked for the law firm of McCormick, Barstow, Sheppard, Wayte & Carruth, which did substantial coverage and bad faith defense work for FFIC.  The trial court denied the motion.

The Court of Appeal reversed.  The Court noted that the McCormick firm had represented FFIC for 13 years.  The work primarily involved coverage disputes and bad faith cases.  Wilkins worked at the firm for 13 years.  He worked entirely in the firm's insurance coverage department.  His work included coverage and claims handling advice to FFIC. 

Wilkins indicated he handled facts-specific cases and denied having any knowledge of litigation or discovery strategies or procedures used by FFIC in handling cases of this sort.

The court stated a disqualification motion in a successive representation cases must first identify the attorney's former representation with regard to the prior client.  If it is direct and personal, then the question is whether there is a connection between the two successive representations. 

Here, Wilkins' representation with FFIC was personal and direct.  Thus, the issue was whether there was a substantial relationship between what Wilkins did for FFIC and what he was seeking to do for his current client.  This question turned on whether the evaluation, prosecution, settlement and accomplishment of the current representation was material to the same issues in the former representation.  This involved a determination of similarities between the legal problems involved in the former representation and the legal problems involved in the current representation.  Wilkins did substantial work on coverage matters for FFIC.  That was the nature of the representation he was currently providing to his current client.  Coverage disputes are substantially related to bad faith actions because they both involve the issue of whether there is coverage under the terms of a policy.

In this matter, Wilkins was doing for his current client what he had done previously for FFIC.  It was also likely that some of the personnel at FFIC who had worked with Wilkins would be called as witnesses.

The court felt that a prima facia case had been made that the subject of the prior representation of FFIC by Wilkins, and the subject of Wilkins' current representation, were substantially related.  The court felt that disqualification was in order given Wilkins' pervasive participation and role in shaping FFIC's practices and procedures in handling California coverage claims.  Further, given the short time span between his departure from McCormick and his representation of Farris, a further need for disqualification was raised. 

The court therefore concluded that the trial court abused its discretion in denying the motion to disqualify.  The court felt not only Wilkins, but his firm, should be disqualified because no showing had been made that the rest of the members of his firm had been shielded from any information he had obtained while working at McCormick.

COMMENT

This decision should aid both insurers and attorneys in evaluating whether a conflict exists which disqualifies the attorney from representing clients who are suing the insurer.  By adopting strict standards for the applications of these rules, the courts prevent an appearance of impropriety from being raised by reason of the representation.

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