In Lucent Tech. Inc v. Gateway, Inc., 2007 U.S. Dist. Lexis 35502 (S.D. Cal May 15, 2007), the Southern District of California, in issuing an otherwise bland disqualification opinion involving a migrating lawyer, commented on two things of interest.
The first was whether California law, or the Model Rules controlled. This is an issue that’s been brewing in California federal courts for years, and one we faced in the Fifth Circuit a while ago, when it held that (eventually, even in diversity cases) and even if adopted by the local rules, the state rules could not control matters of ethics in federal court. E.g., In re Dresser, 972 F.2d 540 (5th Cir. 1992). The California federal courts are all over the map, even to the extent of how their local rules address which rules apply in federal court. The case offered no definitive answer, but the court noted the complexities that arose because California’s rules on this point (imputed disqualification) arguably differed from the Model Rules.
The second was whether Chinese Walls (screens, cones of silence, etc.) could be used to rebut imputation of confidences outside the migrating government lawyer context. The court entertained, but did not accept, the notion that a screen could be used, but not where the migrating lawyer had been invovled in the actual case, as opposed to some related other case.