Fluidmaster v. Fireman's Fund Ins. Co.Annotate this Case
The law firm of Crowell & Moring (Crowell) was vicariously disqualified from this insurance coverage action based on a newly-hired, but disqualified discovery associate in a geographically distant office. Then, while the disqualification appeal was pending with the California Court of Appeal, the associate left Crowell. At that point, Kirk v. First American Title Ins. Co., 183 Cal.App.4th 776 (2010) became the controlling authority. "Kirk" also involved a disqualified attorney who left a vicariously disqualified law firm during the pendency of an appeal, and the result was that the order of disqualification had to be reversed and remanded back for reconsideration by the trial court. In the process Kirk outlined a number of factors that controlled the case on remand with regard to the efficacy of what is called an ethical screen in retroactively deciding whether any of a former client’s confidential communications had been actually disclosed. Following Kirk, the Court of Appeal reversed the disqualification order and returned the case to the trial court with directions to reevaluate its disqualification decision in light of Kirk – specifically the Kirk factors as to whether any confidential information has actually been disclosed.