Memorandum of Decision Re: Woodshedding

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
Judge's Deicsions
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re JOSEPH KEMP THORNE,                                                                              No. 96-14226      Debtor(s). ______________________________________/ JOSEPH KEMP THORNE,      Plaintiff(s),    v.                                                                                                                     A.P. No. 99-1017 RUTH ROBERTSON THORNE,      Defendant(s). _______________________________________/
Memorandum re Disqualification of Counsel
     "Woodshedding" is not defined in Black's Law Dictionary. As explained to the undersigned many years ago by a very senior attorney, an attorney has been woodshedded if he or she has been disqualified from representing a party by virtue of a brief consultation by an adverse party.(1) Even when there is no formal agreement and no actual employment results, the consultation creates a fiduciary relationship which precludes the attorney from representing an adverse interest. Beery v. State Bar (1987) 43 Cal.3d 802, 811.      In this case, plaintiff Joseph Thorne consulted in person with attorney Stephen Arnot on December 8, 1998, at Arnot's office. After about twenty minutes of conversation, during which time Thorne communicated his personal beliefs and opinions in confidence, Arnot recognized that he had discussed the case with counsel for defendant Ruth Robertson Thorne. He thereupon terminated the consultation and waived his fee. However, he has subsequently become defendant's counsel of record in this adversary proceeding, which involves the same issues as those discussed in the consultation. Plaintiff has moved the court for an order disqualifying Arnot.      In opposing the motion, Arnot relies primarily on Marriage of Zimmerman (1993) 16 Cal. App.4th 556. However, the holding in that case was merely that a court does not abuse its discretion by denying disqualification of a law firm based on a brief telephone consultation on a peripheral issue. In this case, the consultation was much more formal and the subject matter central to the litigation.      Arnot argues that he obtained no actual confidential information as a result of the consultation. However, that is not a prerequisite to disqualification. Possession of confidential information is presumed where there has been an attorney-client relationship. It is the possibility of breach of confidence, and not the fact of an actual breach which triggers disqualification. Marriage of Zimmerman, 16 Cal. App.4th at 563.      The court in Zimmerman noted that the court must balance the benefits and harms in deciding whether to disqualify counsel. In this case, it appears that disqualification is warranted. Plaintiff had a right to believe that he could speak freely with Arnot. While Arnot acted properly when he discovered that he had a conflict, things had progressed too far at that point for him to represent an interest adverse to plaintiff. The court notes that defendant has co-counsel, and that telephonic appearances are routine in Eureka so that she will not be unduly prejudiced by losing Arnot.      While the old timers hated being woodshedded, they understood that it was a fact of legal life and accepted it with as much grace as possible when it happened to them. This aspect of practice has not changed over the years. Arnot must be disqualified. The motion will accordingly be granted. Counsel for plaintiff shall submit an appropriate form of order.
Dated: June 6, 1999                                                                              ____________________________                                                                                                                      Alan Jaroslovsky                                                                                                                      United States Bankruptcy Judge
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1. The origin of the term is unclear, but it probably came from the term "horse-shedding" credited to James Fenimore Cooper. He used the phrase to describe the preliminary negotiations toward a bargain made in the horse-shed before or after church services at a time when contracts made on Sunday were illegal. See Field, "Frankfurter, J., Concurring," 71 Harv.L.Rev. 77,