Filed 8/22/19 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THOMAS WU,

Plaintiff and Appellant,

v.

O’GARA COACH COMPANY 

LLC et al.,

Defendants and

Respondents.

 B289698

 (Los Angeles County

 Super. Ct. No. BC675388)

 ORDER MODIFYING

 OPINION

 (No change in judgment)

THE COURT: 

It is ordered that the opinion filed herein on August 21, 

2019 be modified as follows: 

1. Delete the entire first paragraph of the opinion and 

replace it with the following: 

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 
2

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 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.)

2. There is no change in the judgment. 

__________________________________________________________

 PERLUSS, P. J. SEGAL, J. FEUER, J.
Filed 8/21/19 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THOMAS WU,

Plaintiff and Appellant,

v.

O’GARA COACH COMPANY 

LLC et al.,

Defendants and 

Respondents.

 B289698

 (Los Angeles County

 Super. Ct. No. BC675388)

APPEAL from an order of the Superior Court of 

Los Angeles County, Robert Leslie Hess, Judge. Reversed.

Brown, Neri, Smith & Khan, Ethan J. Brown, 

Rowennakete P. Barnes, James F. Warren IV for Plaintiff and 

Appellant. 

Fisher & Phillips, Wendy McGuire Coats, Christopher J. 

Boman and Sean T. Kingston for Defendants and Respondents 

O’Gara Coach Company, LLC and Llewyn Jobe.
2

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.
7

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.” 
12

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 
16

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.)
17

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. 
20

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. 

DISPOSITION

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. 

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.