“DQ” at this time of year makes me think of drive-in ice-cream cones. But I actually mean “DQ” as in “disqualification,” and instead of sugar cones, it points to an interesting case involving some take-home lessons about conflicts of interest.
Crisis of unhoused residents
California’s massive homelessness problem has been the subject of several federal lawsuits. In Housing is a Human Right v. Orange County, three housing advocacy groups and several individuals sued Orange County and five southern California cities, alleging in the complaint that the defendants’ treatment of their homeless residents violates numerous provisions of state and federal law.
In their lengthy complaint, spotlighting the dire problems of unhoused people in southern California, the individual plaintiffs asserted entitlement to class certification, compensatory damages and injunctive and declaratory relief.
In May, the plaintiffs moved to disqualify Jones Day from representing three of the city defendants, and last month, in a short opinion, the district court denied the motion.
Switching sides, or not?
In their motion to disqualify, the plaintiffs asserted that Jones Day had previously represented a different advocacy group for the homeless, the People’s Homeless Task Force, plus several homeless individuals. According to the district court’s opinion, the firm advised the Task Force about potential litigation against Orange County and the City of Anaheim regarding the practices of law enforcement there in seizing and destroying the property of homeless people.
In their motion to disqualify, the plaintiffs asserted that the members of the steering committee for the lead plaintiff, Housing is a Human Right, overlapped with that of Jones Day’s former client, the People’s Homeless Task Force, and that they had “interacted with Jones Day as their clients.”
Further, said the plaintiffs, the firm’s former pro bono representation of the People’s Homeless Task Force involved the same subject matter as the suit in which Jones Day is now defending the three cities. “Jones Day is switching sides and attacking former clients on the very matters the firm represented them on, mandating disqualification,” wrote the plaintiffs.
The district court rejected the plaintiffs’ arguments and denied the motion to disqualify. First, the court pointed to the limited scope of what Jones Day agreed to do in taking on the prior representation of the People’s Homeless Task Force. In its engagement letter, the firm stated that its engagement “is limited,” and “does not create an attorney-client relationship with any person or entity other than you.”
The engagement letter also confirmed the former client’s agreement that the firm could represent future clients in unrelated matters adverse to the People’s Homeless Task Force.
Therefore, said the court, the premise of the disqualification attempt — that Housing is a Human Right and its directors were former clients of Jones Day — was flawed.
The court also rejected the argument that under California’s version of Model Rule 1.9 the firm’s earlier representation of the People’s Homeless Task Force was “substantially related” to its current representation adverse to Housing is a Human Right. The former representation, the court said, was focused on law enforcement practices concerning the property of homeless people living in a certain encampment, while the current litigation deals with broader problems in a different part of Orange County, brought by different plaintiffs.
Finally, said the court, while Jones Day “was on the side of the homeless in the earlier litigation,” and is now “defending against the claims of the homeless,” the law “does not recognize such a sweeping basis for disqualification.”
Some take-home lessons
We have long emphasized the importance of detailing the scope of your representation in every engagement. (For example, see here and here.) That was a key factor in avoiding DQ here.
In addition, this case is a reminder that the conflict rules operate in pro bono representations. Jones Day’s former client was not a paying one, but that was not a factor in the disqualification analysis.
Last, local law counts. Different jurisdictions have defined “substantial relationship” in varying ways in their conduct rules, and courts have applied the substantial-relationship test in varying ways in analyzing former-client conflicts. While the broad outlines of the law across jurisdictions is consistent, nuances can matter.