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In O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th

1115 (Ra) this court reversed the trial court’s order denying

O’Gara Coach Company LLC’s motion to disqualify Richie

Litigation, P.C. and its attorneys from representing former

O’Gara Coach senior executive Joseph Ra in litigation that

included cross-actions between O’Gara Coach and Ra. We held

O’Gara Coach was entitled to insist that Darren Richie, its

former president and chief operating officer and a principal of

Richie Litigation, honor his ethical obligation as a member of the

California State Bar to maintain the integrity of the judicial

process by refraining from representing former O’Gara Coach

employees in litigation against O’Gara Coach when Richie

possessed confidential attorney-client privileged information

materially substantially related to the matters at issue, even

though that information had been obtained by Richie in his

capacity as an officer of the client, not its lawyer. (See id. at

pp. 1128-1129.)

Unlike the trial court in Ra, the trial court in the case at

bar granted O’Gara Coach’s motion to disqualify Richie Litigation

and its attorneys from representing Thomas Wu, a former sales

advisor at O’Gara Coach Bentley, in Wu’s lawsuit against O’Gara

Coach for race discrimination in violation of the California Fair

Employment and Housing Act (FEHA) (Gov. Code, § 12900

et seq.) and other employment-related misconduct. The trial

court found that Richie, as the former president and chief

operating officer of O’Gara Coach, had significant responsibility

in the formulation and implementation of the company’s antidiscrimination

and anti-harassment policies and it was “more

likely than not that in those roles he consulted with outside

counsel for O’Gara.” In addition, the court ruled it appeared

3

highly probable Richie would be an important percipient witness

at trial not only on the issue of the promulgation and

enforcement of the policies at issue in the lawsuit but also as to

whether Wu’s complaints were made known to Richie and what

actions, if any, Richie took in response to those complaints.

On appeal Wu argues the order disqualifying Richie

Litigation should be reversed because, unlike the situation in Ra,

O’Gara Coach failed to present evidence that Richie possessed

confidential attorney-client privileged information material to the

employment dispute between Wu and O’Gara Coach. Wu also

argues Richie’s potential role as a witness does not justify

disqualification because Wu gave his informed consent to Richie

being called as a witness and, in any event, Richie would not act

as both advocate and witness because other attorneys in the firm

are representing Wu. We agree with Wu and reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Wu’s Lawsuit

On September 12, 2017 Wu, represented by Robert K. Lu of

Richie Litigation, sued O’Gara Coach and several of its senior

management employees for unlawful discrimination based on

race in violation of FEHA; failure to prevent unlawful

discrimination; wrongful termination; defamation; harassment;

intentional and negligent infliction of emotional distress;

negligent hiring, retention and supervision; and workplace

intimidation. A first amended complaint, filed December 21,

2017, contained the same causes of action except defamation and

workplace intimidation and named as defendants only O’Gara

Coach and Llewyn Jobe, Wu’s former supervisor at O’Gara Coach

Bentley.

4

According to the amended complaint, Wu worked for

approximately six years, from 2010 to February 10, 2016, as a

sales advisor at O’Gara Coach Bentley in Beverly Hills, one of

O’Gara Coach’s family of dealerships. Wu alleged Jobe, Tim

O’Hara, the general manager at O’Gara Coach Bentley, and

Thomas O’Gara, the owner and principal of O’Gara Coach,

created a hostile work environment and routinely harassed Wu

based on his race and ethnicity. Specifically, Wu alleged Jobe

called him and his Chinese friends “chinks” and referred to him

as “Buddha” or “sumo wrestler” because of his weight and ethnic

heritage. Wu complained about the offensive comments to his

supervisors, including Jobe, and to more senior executives at

O’Gara Coach Bentley, but nothing was done to correct the

situation.

Wu alleged he was a model employee during his tenure at

O’Gara Coach Bentley and had never been reprimanded for his

performance or other work-related issues. Beginning in early

2016 Wu suspected his employment at the dealership might be in

jeopardy and began exploring opportunities at other dealerships

in Los Angeles. Following an interview at one of those

dealerships on February 10, 2016, Wu was fired. No explanation

was given to Wu for O’Gara Coach’s decision to terminate his

employment.

2. The Motion To Disqualify Richie Litigation

O’Gara Coach and Jobe jointly answered the first amended

complaint on January 22, 2018 and several days later moved to

disqualify Richie Litigation and each of its attorneys from

representing Wu. The motion argued disqualification was

appropriate because Richie is a key percipient witness whose

testimony would be adverse to the interests of his client and

5

because he had been privy to confidential and privileged

documents and information during his employment at O’Gara

Coach that were directly related to the issues in the lawsuit.

a. Richie’s role at O’Gara Coach

O’Gara Coach hired Richie in September 2013 as general

manager for its Westlake Village location. He was subsequently

promoted to director of sales operations for the company and then

in November 2014 to president and chief operating officer.

According to the declaration of Thomas O’Gara in support

of the motion to disqualify, as president and chief operating

officer Richie was charged with creating, implementing and

enforcing workplace policies and practices for all of the company’s

various dealership locations, including O’Gara Coach Bentley

where Wu worked; and one of his job responsibilities was to

ensure a workplace environment free of unlawful harassment

and discrimination. In addition, Richie was one of two

individuals to whom employee complaints were to be reported,

including violations of the company policy against harassment

and discrimination.1

Several O’Gara Coach employees submitted

declarations in support of the motion stating the office culture

1 Christine Rogers, the company’s controller during the

relevant time period, was the other employee to whom complaints

were to be reported. Rogers stated in her declaration that she

was not aware of any employee complaints made during Richie’s

tenure that were not brought to his attention or that he was not

involved in investigating and resolving. She also declared she

was not aware of any complaints made by Wu about workplace

conditions. Lance Westerlund, general manager of preowned

vehicles for O’Gara Coach, similarly declared he was not aware of

any complaints by Wu.

6

and work environment at the company resulted directly from

Richie’s hands-on approach to management.

In his declaration Thomas O’Gara also explained O’Gara

Coach does not employ in-house lawyers and, while serving as

president, Richie was a primary point of contact for the

company’s outside counsel on many legal matters: “Mr. Richie

would regularly engage and direct legal counsel on O’Gara

Coach’s behalf, regarding day-to-day advice on a litany of

subjects, the development, implementation, and enforcement of

policies and procedures, and on all aspects of pending litigation,

and pre and post-litigation functions.”

When Richie was initially hired by the company, Thomas

O’Gara knew Richie had graduated from law school and had

experience overseeing legal matters. (Richie graduated from law

school in 2003.)2

According to O’Gara, it was this “legal

education and professed experience that provided me comfort in

assigning to him decision-making authority during his tenure,

including without limitation engaging outside legal counsel and

overseeing (on a companywide basis) all legal matters affecting

the company.”

Richie’s employment with O’Gara Coach was terminated on

February 10, 2016. In his declaration Thomas O’Gara stated

O’Gara Coach and Richie executed a severance agreement in

which Richie agreed not to file claims against O’Gara Coach or to

assist others in bringing claims against the company. That

2

Richie successfully sat for the California bar examination

in February 2017, a year after he left O’Gara Coach. He was

admitted to the bar on August 27, 2017 and formed Richie

Litigation that same summer.

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document, which is described as subject to confidentiality

provisions, was not filed with the trial court, but counsel offered

to make it available to the court for in camera inspection.

b. Richie’s communications with outside counsel

Usama Kahf, a partner with Fisher & Phillips LLP,

submitted a declaration in support of the motion to disqualify

stating his firm has provided labor and employment advice to

O’Gara Coach for many years. According to Kahf, “[b]etween

November 2014 and February 2016, Richie was my primary point

of contact with [O’Gara Coach] on various litigation and nonlitigation

employment matters, because he was the President and

Chief Operating Officer during that period.” Kahf exchanged

more than 600 emails and took part in at least 50 telephone

conversations with Richie relating to Fisher & Phillips’s

representation of the company during that period.

Kahf described the matters he discussed with Richie as

including strategy and activity in pending litigation pertaining to

former and current employees; compliance with wage and hour

laws and regulations; termination and severance issues related to

O’Gara Coach employees; “responding to various complaints

made by [O’Gara Coach] employees about a litany of workplace

issues”; and “investigations of employee misconduct and

complaints.”

Kahf’s declaration also stated Richie directed Kahf and his

law firm regarding the development, drafting and/or revision of

the O’Gara Coach policy prohibiting discrimination and

harassment. “As my primary point of contact at [O’Gara Coach],

and due to his direct involvement in policy drafting and

implementation and in his role of decision-maker, Richie had

direct knowledge and possession of [O’Gara Coach’s] confidential,

8

business proprietary, and trade secret information, attorneywork

product, and attorney-client privileged communications.

Moreover, Mr. Richie, as [O’Gara Coach’s] President and COO,

was the primary individual responsible for implementing and

enforcing [O’Gara Coach’s] workplace policies and procedures.”

Halbert Rasmussen, formerly a partner at Arent Fox LLP,

stated in his declaration in support of the motion that between

November 2014 and February 2016 he “regularly communicated

with Mr. Richie in the course of my representation of O’Gara

Coach in various legal matters, as did other attorneys at Arent

Fox LLP who were assisting me with our representation of

O’Gara Coach.” Rasmussen had at least 40 telephone calls with

Richie during that period, virtually all of which in his view

constituted communications subject to the attorney-client

privilege in favor of O’Gara Coach.

Keith D. Kassan, who serves as outside general counsel to

O’Gara Coach, in his declaration in support of the motion

described Richie as a “primary point of contact” for O’Gara Coach

on 28 litigated and nonlitigated matters affecting its sales and

service departments. Kassan exchanged more than 300 emails

and at least 40 telephone conversations with Richie relating to

his representation of O’Gara Coach.

According to Kassan, due to Richie’s “direct involvement in

policy drafting, implementation, and enforcement, and in his role

as decision-maker, Richie had direct knowledge and possession of

O’Gara Coach’s confidential, business proprietary, and trade

secret information, attorney-work product, and attorney-client

privileged communications.” In addition, “Richie was the

primary person responsible for developing, implementing and

9

enforcing O’Gara Coach’s workplace policies and practices, during

which time Plaintiff Thomas Wu’s allegations arose.”

c. The grounds advanced for disqualification

O’Gara Coach advanced three grounds in support of its

motion to disqualify Richie Litigation and the three lawyers then

affiliated with the firm from representing Wu: First, citing

former rule 5-210 of the State Bar Rules of Professional Conduct,3

O’Gara Coach argued Richie would be a key percipient witness in

the case and permitting him (or another attorney in his firm) to

serve as an advocate, while Richie was also a witness, would

result in a clear detriment to O’Gara Coach. Second, implicitly

referring to former rules 3-100 and 3-310 requiring protection of

a client’s confidential information and avoiding the

representation of adverse interests, O’Gara Coach argued Richie,

during his employment at the company, had been directly

involved with, and oversaw, matters substantially related to the

claims Wu was asserting and had been privy to confidential and

privileged documents and information. As a result,

3 Effective November 1, 2018, former rule 5-210 was replaced

by rule 3.7 as part of a comprehensive revision of the State Bar

Rules of Professional Conduct. Both former rule 5-210(C) and

rule 3.7(a)(3) permit a lawyer to act as an advocate in a trial in

which he or she is likely to be a witness with the informed

written consent of the client. Rule 3.7(b) allows a lawyer to act as

advocate in a trial in which another lawyer in the lawyer’s firm is

likely to be called as a witness unless precluded from doing so by

the rules relating to duties owed to current clients (rule 1.7) or

former clients (rule 1.9).

All references to rules and to former rules are to the State

Bar Rules of Professional Conduct unless otherwise stated.

10

disqualification was necessary to protect O’Gara Coach’s

privileged information. Finally, as a former senior executive of

O’Gara Coach, Richie owed continuing fiduciary duties to the

company, including a duty to maintain the confidentiality of its

privileged information.

3. Wu’s Opposition to the Motion To Disqualify

Wu’s opposition to the motion to disqualify emphasized,

first, that Richie never had any type of attorney-client

relationship with O’Gara Coach, either during his tenure at the

company (which was before he had been admitted to the State

Bar of California) or after he left its employ; and second, that

Richie was not Wu’s lawyer or otherwise personally involved in

his representation in this case.

With respect to the specific grounds for disqualification

advanced by O’Gara Coach, Wu explained he had been fully

informed about Richie’s potential role as a percipient witness and

had already consented to it. Accordingly, O’Gara Coach’s reliance

on the advocate-witness rule for disqualification of Richie

Litigation was misplaced.

Disqualification because of the purported relationship

between Richie’s work at O’Gara Coach and the subject matter of

Wu’s lawsuit was similarly unwarranted, Wu argued.

Disqualification based on a duty of loyalty (avoiding conflicts of

interest, current or successive) or the duty to protect confidential

information is dependent on the existence of an attorney-client

relationship between the individual (or law firm) to be

disqualified and the party moving for disqualification. Here,

Richie had never represented O’Gara Coach in any legal capacity.

In a declaration in opposition to the motion, Richie

explained, while he was president and chief operating officer of

11

O’Gara Coach, Thomas O’Gara provided him with information

regarding workplace and EEOC policies in place at the company.

According to Richie, “[w]hile I did not develop these policies, I

had input into them as I believed that a fair and harassment-free

workplace was critical to success of a business and, more

importantly, the well-being of the employees.” O’Gara, however,

did not abide by those policies, “either in spirit or in fact.” To the

contrary, O’Gara routinely fostered an atmosphere of exclusion,

specifically at the Beverly Hills dealership where Wu worked,

and often referred to Asians as “chinks.”

Finally, that Richie might have some form of continuing

fiduciary duties to O’Gara Coach, Wu contended, is not a

cognizable ground for disqualification of a nonlawyer; the

existence of an attorney-client relationship is essential.

4. The Trial Court’s Ruling

At the March 20, 2018 hearing, after listening to argument

of counsel, the court granted the motion to disqualify Richie and

Richie Litigation. The court explained it was persuaded Richie

“had significant responsibility for the formulation and

implementation of the anti-harassment and anti-discrimination

policies for O’Gara [Coach], and it is more likely than not that in

those roles he consulted with outside counsel for O’Gara [Coach].

[¶] In addition, it appears highly probable that Mr. Richie may

be an important principal witness to the issues of promulgation

and enforcement policies/practice in this suit, that he has

personal knowledge whether plaintiff complained to him or

whether any of plaintiff’s complaints were communicated to him

and what action he took or did not take.”

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DISCUSSION

1. Standard of Review

A trial court’s decision to grant or deny a motion to

disqualify counsel is generally reviewed for abuse of discretion.

(People v. Suff (2014) 58 Cal.4th 1013, 1038; In re Charlisse C.

(2008) 45 Cal.4th 145, 159; People ex rel. Dept. of Corporations v.

SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143

(SpeeDee Oil).) “As to disputed factual issues, a reviewing court’s

role is simply to determine whether substantial evidence

supports the trial court’s findings of fact . . . . As to the trial

court’s conclusions of law, however, review is de novo; a

disposition that rests on an error of law constitutes an abuse of

discretion.” (Charlisse C., at p. 159; see Haraguchi v. Superior

Court (2008) 43 Cal.4th 706, 711-712.) While the trial court’s

“‘application of the law to the facts is reversible only if arbitrary

and capricious’” (Charlisse C., at p. 159), “where there are no

material disputed factual issues, the appellate court reviews the

trial court’s determination as a question of law.” (SpeeDee Oil, at

p. 1144; accord, Ra, supra, 30 Cal.App.5th at p. 1124; California

Self-Insurers’ Security Fund v. Superior Court (2018)

19 Cal.App.5th 1065, 1071; Castaneda v. Superior Court (2015)

237 Cal.App.4th 1434, 1443.)

2. Ra

In Ra, supra, 30 Cal.App.5th 1115 we reviewed O’Gara

Coach’s unsuccessful motion to disqualify Richie Litigation in a

different lawsuit involving claims between O’Gara Coach and one

of its former employees, Joseph Ra. At the outset of our analysis,

quoting the Supreme Court’s decision in SpeeDee Oil, supra,

20 Cal.4th at p. 1145, we explained, “When deciding a motion to

disqualify counsel, ‘[t]he paramount concern must be to preserve

13

public trust in the scrupulous administration of justice and the

integrity of the bar. The important right to counsel of one’s

choice must yield to ethical considerations that affect the

fundamental principles of our judicial process.’” (Ra, at p. 1124;

see Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 818

[“‘[a]n attorney has an obligation not only to protect his client’s

interests but also to respect the legitimate interests of fellow

members of the bar, the judiciary, and the administration of

justice’”].)

Recognizing, as had the trial court, that Richie had never

acted as counsel for O’Gara Coach and, therefore, that the

general rules regarding disqualification based on successive

representation did not apply (Ra, supra, 30 Cal.App.5th at

p. 1128),4 we considered cases in which disqualification had been

based on the acquisition of an adversary’s privileged

communication by means other than a prior attorney-client

relationship. (Id. at pp. 1126-1127.) In particular, we discussed

In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, in

which the court had held disqualification was proper because

counsel’s newly hired paralegal had access to confidential

information relating to pending litigation while working for

4 Disqualification is required in successive representation

cases if the current representation involves the legal services

performed by the attorney for the former client (e.g., Henriksen v.

Great American Savings & Loan (1992) 11 Cal.App.4th 109, 111;

Dill v. Superior Court (1984) 158 Cal.App.3d 301, 306) or, even if

not the same matter, if a substantial relationship exists between

the former representation and the current representation

(SpeeDee Oil, supra, 20 Cal.4th at p. 1146; Flatt v. Superior Court

(1994) 9 Cal.4th 275, 283).

14

opposing counsel, and Shadow Traffic Network v. Superior Court

(1994) 24 Cal.App.4th 1067, in which the court held

disqualification was warranted when an expert witness hired by

a law firm had previously consulted with, and obtained

confidential information from, opposing counsel regarding the

pending litigation.

We also analyzed Rico v. Mitsubishi Motors Corp., supra,

42 Cal.4th 807, in which the Supreme Court held, when a lawyer

comes into possession of materials that clearly appear to be

protected by the attorney-client privilege or work product

doctrine and it is reasonably apparent the materials were

disclosed without the holder of the privilege intending to waive it,

the lawyer receiving the material is prohibited from using them.

Instead, the lawyer may examine the materials no more than

necessary to ascertain their privileged status and then must

immediately notify the party entitled to the privilege about the

situation. (Id. at pp. 816-818.) It is proper to disqualify counsel

who fails to act in accord with these ethical responsibilities and

makes use of the inadvertently disclosed confidential

information. (Id. at pp. 810, 819; accord, McDermott Will &

Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1120

[“‘[d]isqualification is proper as a prophylactic measure to

prevent future prejudice to the opposing party from information

the attorney should not have possessed’; an affirmative showing

of existing injury from the misuse of privileged information is not

required”]; see Clark v. Superior Court (2011) 196 Cal.App.4th

37, 43-44, 54-55 [attorney received opponent’s privileged

documents from his own client, who had stolen them when fired,

rather than through inadvertent production by opposing party or

its counsel; disqualification was proper prophylactic remedy

15

based on evidence attorney had reviewed the documents more

than minimally necessary to determine their privileged nature

and had affirmatively used some of the substantive information

in the privileged documents].)

Applying the principles articulated in these cases, we

reversed the order denying the motion to disqualify Richie

Litigation and its attorneys, holding disqualification was

required as a prophylactic measure because the firm was in

possession of confidential information, protected by O’Gara

Coach’s attorney-client privilege, concerning Ra’s allegedly

fraudulent activities at issue in the pending litigation. (Ra,

supra, 30 Cal.App.5th at pp. 1128-1129; see Roush v. Seagate

Technology, LLC (2007) 150 Cal.App.4th 210, 219 [although the

“classic disqualification case involves the attorney switching

sides, . . . [¶] [i]n other cases, counsel may be disqualified where

counsel has obtained the secrets of an adverse party in some

other manner”; “[d]isqualification is warranted in these cases, not

because the attorney has a duty to protect the adverse party’s

confidences, but because the situation implicates the attorney’s

ethical duty to maintain the integrity of the judicial process”].)

We explained that O’Gara Coach had presented evidence to

the trial court, undisputed by Ra, that Richie, while employed as

a senior executive at the company, participated in meetings,

phone calls and email communications with outside counsel

investigating Ra’s activities “that developed theories material to

O’Gara Coach’s defense and forming the basis for its cross-claims

[against Ra] in this litigation and that are protected by the

lawyer-client privilege.” (Ra, supra, 30 Cal.App.5th at p. 1129.)

That privilege belonged to O’Gara Coach; and Richie, even

though no longer an officer of the company, had no right to

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disclose the protected information without O’Gara Coach’s

consent. (Ibid., citing Costco Wholesale Corp. v. Superior Court

(2009) 47 Cal.4th 725, 732 [“‘[t]he attorney-client privilege, set

forth at Evidence Code section 954, confers a privilege on the

client “to refuse to disclose, and to prevent another from

disclosing a confidential communication between client and

lawyer”’”].) Now that Richie was a member of the California

State Bar, we concluded, “O’Gara Coach is entitled to insist that

he honor his ethical duty to maintain the integrity of the judicial

process by refraining from representing former O’Gara Coach

employees in litigation against O’Gara Coach that involve

matters as to which he possesses confidential information.” (Ra,

at p. 1129.)5



3. O’Gara Coach Failed To Present Evidence Richie

Possessed Privileged Information Materially Related to

the Pending Litigation

Central to our holding in Ra was undisputed evidence,

based on the declaration of one of O’Gara Coach’s outside

attorneys, that Richie possessed attorney-client privileged

information directly related to O’Gara Coach’s defense of the

claims being asserted against it in the litigation then before us

and to O’Gara Coach’s prosecution of its cross-claims against Ra

in that lawsuit. In contrast, the declarations in this case

demonstrate, at most, that Richie possesses presumptively

5 In the final section of our opinion in Ra, we observed no

evidence had been presented that Richie had been screened from

any of the attorneys at Richie Litigation who had worked on the

case and held that Richie Litigation, not just Richie, must be

disqualified under established rules for vicarious disqualification.

(Ra, supra, 30 Cal.App.5th at pp. 1131-1132.)

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privileged information regarding O’Gara Coach’s development,

implementation and enforcement of its workplace polices, as well

as knowledge of other confidential information regarding the

company, its operations and its general litigation strategies.

None of the declarations suggests Richie was involved in any way

in investigating Wu’s complaints of a hostile work environment

or had any discussions with O’Gara Coach’s outside counsel

regarding Wu’s claims.

Whether the principles articulated in Ra are properly

extended to justify disqualification of Richie Litigation under the

circumstances here raises the problem of what has sometimes

been referred to in case law and scholarly literature as “playbook”

information. (See, e.g., Khani v. Ford Motor Co. (2013)

215 Cal.App.4th 916, 921-922; Fremont Indemnity Co. v. Fremont

General Corp. (2006) 143 Cal.App.4th 50, 69 (Fremont

Indemnity); Painter, Advance Waiver of Conflicts (2000)

13 Geo. J. Legal Ethics 289, 319; Wolfram, The Vaporous and the

Real in Former-Client Conflicts (1996) 1 J. Inst. for Study of

Legal Ethics 133, 138.)

As described by Professor Charles Wolfram, the typical

playbook problem involves a claim by a former client that the

lawyer learned confidential information of a general kind during

the prior representation: “Common variants on the claim are

assertions that the lawyer learned the former client’s settlement

strategy and philosophy, or what sequence of demands or other

tactics the former client uses in negotiating business deals, how

the former client generally conducts its business, how the client

deals with the stresses of litigation, what quirks of personality

the client possesses or suffers from, or, in general, what ‘hot

buttons’ can be pushed to cause panic or confusion to the former

18

client. Confidential information about any one of those elements,

it is claimed, would give the lawyer significant advantage if it

were permissible to represent an adversary against the former

client, regardless of the factual dissimilarities between the two

representations in other respects. Hence, it is claimed,

confidential information protected by the substantial relationship

test should include such playbook information.” (Wolfram,

Former-Client Conflicts (1997) 10 Geo. J. Legal Ethics 677, 723,

fns. omitted).

Under California law a law firm is not subject to

disqualification because one of its attorneys possesses

information concerning an adversary’s general business practices

or litigation philosophy acquired during the attorney’s previous

relationship with the adversary. (Banning Ranch Conservancy v.

Superior Court (2011) 193 Cal.App.4th 903, 918 [“[m]erely

knowing of a former client’s general business practices or

litigation philosophy is an insufficient basis for disqualification

based upon prior representation”].) To be protected through a

disqualification order, “‘the information acquired during the first

representation [must] be “material” to the second; that is, it must

be found to be directly at issue in, or have some critical

importance to, the second representation.’” (Fremont Indemnity,

supra, 143 Cal.App.4th at p. 69; accord, Khani v. Ford Motor Co.,

supra, 215 Cal.App.4th at pp. 921-922 [attorney’s acquisition of

general information about Ford’s policies, practices and

procedures while defending the company in lemon law cases did

not require his disqualification in a lemon law case against Ford

on behalf of the purchaser of a defective Lincoln Navigator]; see

Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal.App.4th 671,

680; see generally ABA Model Rules Prof. Conduct, rule 1.9,

19

comment [3] [“[i]n the case of an organizational client, general

knowledge of the client’s policies and practices ordinarily will not

preclude a subsequent representation; on the other hand,

knowledge of specific facts gained in a prior representation that

are relevant to the matter in question ordinarily will preclude

such a representation”]; Rest.3d Law Governing Lawyers, § 132,

com. (d)(iii), p. 382 [only when information concerning a former

client’s policies and practices “will be directly in issue or of

unusual value in the subsequent matter will it be independently

relevant in assessing a substantial relationship”].)

The trial court’s disqualification order in this case

necessarily rests on implied findings that Richie acquired

confidential and privileged information as a result of his prior

position at O’Gara Coach that is material to his law firm’s

current representation of Wu. Yet, separating what Richie may

know simply because he participated as a nonlawyer executive in

events at the company from confidential information he possesses

based at least in part on attorney-client privileged

communications, and focusing our analysis on the latter category,

the declarations submitted by O’Gara Coach describe only classic

playbook information. Nowhere does O’Gara Coach demonstrate

the required material link between Richie’s knowledge of the

development and implementation of the company’s workplace

policies and the issues presented by Wu’s lawsuit. While O’Gara

Coach argues Richie was the primary point of contact at the

company for its outside general labor and employment counsel

regarding the handling of employee complaints, it identifies no

category of information gained by Richie as a result of those

contacts that is directly at issue in, or has some unusual value or

critical importance to, Richie Litigation’s representation of Wu.

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Unlike the situation in Ra, Richie did not assist O’Gara Coach’s

lawyers in their investigation of Wu’s harassment and

discrimination claims. To be sure, Richie possesses potentially

relevant information about O’Gara Coach’s formal

antidiscrimination and anti-harassment policies and whether

they were properly implemented. That knowledge, however, is

based on Richie’s role at the company as a nonlawyer senior

executive. How those policies were actually developed, on the

other hand, may include information protected by O’Gara’s

attorney-client privilege; but the origins of the company’s policies,

as opposed to their enforcement or lack of enforcement, is not

material to Wu’s lawsuit.

Whether viewed as a lack of substantial evidence to

support its implied findings of fact or as an erroneous

determination of the appropriate legal standard to apply in these

unusual circumstances, the trial court’s order disqualifying

Richie Litigation and its attorneys based on Richie’s knowledge of

confidential and privileged information must be reversed.6

6 Although, based on the evidence submitted in support of

O’Gara’s motion to disqualify, we conclude the confidential

attorney-client information Richie may possess is not material to

the issues in Wu’s lawsuit, Richie Litigation’s apparent decision

not to screen Richie from any participation in Wu’s

representation is troublesome. (See generally rule 1.10(a)(2).)

21

4. Richie’s Likely Testimony as a Percipient Witness Does

Not Justify Disqualification of Richie Litigation or Other

Attorneys at the Firm Under the Advocate-witness Rule

Whatever their other shortcomings, the declarations filed

in support of, and opposition to, the motion to disqualify fully

support the trial court’s finding that Richie will likely be called as

a percipient witness at trial: O’Gara Coach intends to call Richie

to discuss his role in the development, implementation and

enforcement of the company’s anti-harassment and antidiscrimination

policies and to describe the workplace culture at

its Beverly Hills dealership when he and Wu worked there; Wu

might call Richie to testify to Thomas O’Gara’s statements

regarding preferential treatment for white employees and

O’Gara’s frequent use of racially offensive epithets. However,

that Richie might testify at trial does not warrant

disqualification of other lawyers at Richie Litigation under the

advocate-witness rule.

Under rule 3.7(a)(3) a lawyer is prohibited from acting as

an advocate in a trial in which that lawyer is likely to be a

witness unless “the lawyer has obtained informed written

consent from the client.” That exception is applicable here; for,

as discussed, Wu submitted a declaration in the trial court

averring he had given his informed consent to Richie Litigation’s

representation of him, recognizing that Richie would likely be

called as a witness at trial. (See Maxwell v. Superior Court

(1982) 30 Cal.3d 606, 619, fn. 9 [“the State Bar has concluded that

a fully informed client’s right to chosen counsel outweighs

potential conflict or threat to trial integrity posed by counsel’s

appearance as witness”], disapproved on another ground in People

v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

22

While this exception does not necessarily preclude

disqualification of an attorney who may act as both advocate and

witness when there has been “‘a convincing demonstration of

detriment to the opponent or injury to the integrity of the judicial

process’” (Smith, Smith & Kring v. Superior Court (1997)

60 Cal.App.4th 573, 579; see Lyle v. Superior Court (1981)

122 Cal.App.3d 470, 482)—a finding not made by the trial court

here—rule 3.7(b) now provides a lawyer may act as advocate in a

trial in which another lawyer in the lawyer’s firm is likely to be

called as a witness unless that representation is barred by

separate ethical rules relating to a lawyer’s duties to current or

former clients.7

(See also ABA Model Rules Prof. Conduct,

rule 3.7(b) [“[a] lawyer may act as advocate in a trial in which

another lawyer in the lawyer’s firm is likely to be called as a

witness unless precluded from doing so by Rule 1.7 [‘Conflict of

Interest: Current Clients’] or Rule 1.9 [‘Duties to Former

Clients’]”].)

As to Wu, Richie Litigation’s current client, his informed

written consent eliminates any potential conflict prohibition that

7 Rule 3.7 states in full, “(a) A lawyer shall not act as an

advocate in a trial in which the lawyer is likely to be a witness

unless: [¶] (1) the lawyer’s testimony relates to an uncontested

issue or matter; [¶] (2) the lawyer’s testimony relates to the

nature and value of legal services rendered in the case; or

[¶] (3) the lawyer has obtained informed written consent from the

client. If the lawyer represents the People or a governmental

entity, the consent shall be obtained from the head of the office or

a designee of the head of the office by which the lawyer is

employed. [¶] (b) A lawyer may act as advocate in a trial in which

another lawyer in the lawyer’s firm is likely to be called as a

witness unless precluded from doing so by rule 1.7 or rule 1.9.”

23

might otherwise exist because Richie’s testimony may, in some

respects, be adverse to Wu’s interests. (See rule 1.7(b) [a lawyer

shall not, without the informed written consent from each

affected client, represent a client if there is a significant risk the

lawyer’s representation will be materially limited by the lawyer’s

responsibilities to a former client]; see also Rest.3d Law

Governing Lawyers, § 108, com. f & i, pp. 152 & 153 [other

lawyers in a testifying lawyer’s firm may serve as advocates for a

party in the proceeding, despite disqualification of one or more

firm lawyers as advocates, if the representation would not involve

a conflict of interest with the client; if testimony adverse to the

client is anticipated, the client must consent to the firm

continuing as advocate].) As to O’Gara Coach, Richie’s former

employer, but not his “former client,” as discussed, Richie’s

ethical obligations as a current member of the State Bar,

recognized in Ra, supra, 30 Cal.App.5th 1115, do not preclude

Richie Litigation’s continuing role as Wu’s counsel.

The order disqualifying Richie Litigation and its attorneys other than Darren Richie from representing Wu is reversed. Wu is to recover his costs on appeal.