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San Francisco is getting another chance to prove that its entire city attorney’s office should not have been disqualified from a fraud case because City Attorney Dennis Herrera represented one of the defendants while in private practice. With a bare minimum of four votes, the California Supreme Court agreed Wednesday to review the case, much to the relief of the state attorney general and other government law offices that had weighed in as amici curiae in the lower courts. “Absent guidance from this court on this important question of law,” Deputy City Attorney Claire Sylvia wrote in the city’s petition for review, “already burdened governments will be forced to incur the needless expense of hiring outside counsel to avoid the risk of disqualification and may even forgo pursuing cases that should be brought in the public’s interest.” Before being elected as city attorney in 2001, Herrera had been a partner in Kelly, Gill, Sherburne & Herrera, where he represented Cobra Solutions Inc. in a variety of business matters. But more than a year after Herrera took office, Cobra was named as a defendant in a city lawsuit alleging that companies were paying kickbacks to a city building official. Cobra’s lawyers moved to disqualify Herrera and his entire office, claiming that Herrera had represented the company in matters “substantially related” to the suit. San Francisco Superior Court Judge Donald Mitchell agreed last year, and the 1st District Court of Appeal affirmed his decision 2-1 in June. In petitioning for review, the city attorney’s office argued that Herrera had established a screening policy aimed at preventing him from participating in any matter involving a former client. Appeal courts, the city said, have routinely upheld such screening mechanisms without finding it necessary to adopt a rule of automatic vicarious disqualification. “These courts,” Sylvia wrote in the petition, “have explained that the concerns vicarious disqualification is intended to address are outweighed by the costs to the taxpayers of requiring government to hire outside counsel, the loss of specialized expertise in government practice areas and the costs to society of discouraging the movement of lawyers between public and private law practice.” She argued that the “public will pay the price” if the 1st District ruling is affirmed. “Protecting the public interest is a vital, if not central, role of government,” Sylvia wrote. If protecting the public interest in some areas requires the use of outside counsel, “the cost to society is that the case may not be pursued, not merely that it will be pursued by other counsel.” Cobra’s lawyers, however, accused the city of marching out an “unsubstantiated parade of horribles.” The appeal court ruling would not result in widespread disqualifications, argued Keker & Van Nest partner Ethan Balogh. “That decision makes clear that it applied well-settled law to the unique and rare circumstance where the head of a public law office affirmatively sues his former client in a matter substantially related to the head’s prior representation of that client in private practice,” Balogh wrote, adding that neither the city nor its amici have been able to point to a single case remotely similar. Chief Justice Ronald George voted for review and was joined by Justices Joyce Kennard, Ming Chin and Janice Rogers Brown. Justice Kathryn Mickle Werdegar recused herself for unknown reasons. The case is City and County of San Francisco v. Cobra Solutions, S126397.

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