Waxman’s Firm Drafts Scherr; Ogilvie Arguments Delayed while City Attorney’s Office Regroups
March 22, 2011
Oral arguments in the pending appeal of the Workers' Compensation Appeals Board's en banc decision in Ogilvie have been continued from April 13 to June 22, 2011. The First Appellate District, Division 3, granted the continuance after both parties advised that Peter Scherr, the City's attorney in Ogilvie, had unexpectedly resigned his position with the City to accept a partnership with Waxman's firm - the firm representing Applicant.
Waxman advised the Court that he is creating an "ethical wall" to separate Scherr from the Ogilvie case to avoid any conflict. The San Francisco City Attorney's Office is contemplating whether to file a motion to disqualify Waxman from continuing to represent Ogilvie, as he now has direct access to all of the City's legal strategy and planning. In other words, Scherr's proximity to Waxman could increase the risk of intentional or unintentional disclosure of confidential information.
Such proximity is problematic because attorneys have ongoing duties of confidentiality to their former clients and, pursuant to California Rule of Professional Conduct 3-310(E), must avoid representation of adverse interests. In some instances, vicarious disqualification of an entire firm is warranted, where the attorney's disqualification is due to his prior representation of the opposing side in the same action. While case law has not created an absolute rule of vicarious disqualification in California, such disqualification may well be deemed automatic where an attorney possesses confidential information from a representation and switches sides in the same action.
It will be interesting to see what game-plan the City adopts as we enter the home stretch.
By: Natalie Cordellos, Sacramento
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