Must an entire government law office be disqualified whenever the office head has a conflict because he or she previously represented a client in private practice? Disqualification would certainly be appropriate in some circumstances, but I do not agree it should be automatic. In my view, such a rigid rule needlessly burdens the public. Sound public policy considerations weigh against automatic disqualification. *855These considerations include the cost of employing outside counsel, which may cause some government law offices to forgo meritorious cases; the concern that similar cases reflecting a general policy could be handled inconsistently; and the disincentive for top-level private practitioners to seek, and for voters to elect them to, positions as leaders of government law offices. I would allow the trial court to determine on a case-by-case basis the adequacy of the screening procedures undertaken by the government law office. In exercising its discretionary review, the trial court should consider all relevant factors, including the degree of involvement of the office head with the former client,1 the size of the government law office, and the nature of the current suit.
The automatic disqualification rule arose in the context of private practice, at a time when it was relatively uncommon for attorneys to move from one firm to another. Thus, the rule’s burdens were relatively light. Now, however, attorney mobility and firm mergers have increased exponentially. Accordingly, the automatic disqualification rule is being questioned even in the private practice context. “The vicarious disqualification of an entire firm can work harsh and unjust results, particularly in today’s legal world where lawyers change associations more freely than in the past. A rule that automatically disqualifies a firm in all cases substantially related to the tainted lawyer’s former representation could work a serious hardship for the lawyer, the firm and the firm’s clients. [f] We would nevertheless accept the costs of automatic disqualification, if it were the only way to ensure that lawyers honor their duties of confidentiality and loyalty. But it is not. A client’s confidences can also be kept inviolate by adopting measures to quarantine the tainted lawyer. An ethical wall, when implemented in a timely and effective way, can rebut the presumption that a lawyer has contaminated the entire firm. ... [][]... [f] The changing realities of law practice call for a more functional approach to disqualification than in the past.” (In re County of Los Angeles (9th Cir. 2000) 223 F.3d 990, 996 (maj. opn. by Kozinski, J.).)
The question whether the disqualification of an attorney should be imputed to the entire government legal office that lawyer joins has been addressed by the American Bar Association (ABA) in a formal ethics opinion. The ABA declined to extend the automatic disqualification rule because “the government’s ability to function would be unreasonably impaired.” (ABA, Com. on Ethics & Prof. Responsibility, Formal Opn. No. 342 (1975).) The ABA explained, “The relationships among lawyers within a government agency are different from those among partners and associates of a law firm. The salaried government employee does not have the financial interest in the success of *856departmental representation that is inherent in private practice. The important difference in the adversary posture of the government lawyer is recognized by Canon 7: the duty of the public prosecutor to seek justice, not merely to convict, and the duty of all government lawyers to seek just results rather than the result desired by a client. The channeling of advocacy toward a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates. . . . Although vicarious disqualification of a government department is not necessary or wise, the individual lawyer should be screened from any direct or indirect participation in the matter, and discussion with his colleagues concerning the relevant transaction or set of transactions is prohibited by those rules.” (Ibid.)
The majority correctly observes that California has not adopted the ABA Model Rules of Professional Conduct. (Maj. opn., ante, at p. 852.) However, the public policy considerations relied upon by the ABA are persuasive, and a leading text confirms that the ABA’s position is well accepted throughout the country. “[ABA] Model Rule 1.10(a) and most comparable state rules do not impute an individual government lawyer’s disqualification to all other members of this special kind of ‘firm.’ ... [][].. . [Wjoodenly applying the automatic imputation rule that usually governs private law firms would be impractical and against the public interest. A government legal department— unlike a private firm—cannot simply forgo litigating certain cases. Thus, if the ordinary imputation rules applied, the department would either have to select lawyer-employees with limited prior legal experience, or expend money hiring special counsel to litigate the affected cases” (1 Hazard & Hodes, The Law of Lawyering (3d ed. 2005 supp.) § 15.3, p. 15-10, fn. omitted.)
In California, case law extending the automatic disqualification rule to prosecutors’ offices was nullified by the Legislature. In Younger v. Superior Court (1978) 77 Cal.App.3d 892 [144 Cal.Rptr. 34], the Court of Appeal disqualified an entire district attorney’s office because of an appearance of impropriety created by the fact that a newly appointed supervising district attorney had once been a member of the firm representing the defendant. In response to Younger and other cases, the Legislature enacted Penal Code section 1424. (People v. Eubanks (1996) 14 Cal.4th 580, 591 [59 Cal.Rptr.2d 200, 927 P.2d 310].) Under that provision, a district attorney or a city attorney may not be disqualified unless the evidence establishes a conflict of interest that would render a fair trial unlikely. The majority correctly notes that section 1424 does not apply in a civil action. (Maj. opn., ante, at p. 850.) However, as we attempt to balance competing public policies we should not *857ignore the balance struck by the Legislature in section 1424. Certainly, the interest in evenhanded administration of justice is at least as weighty in a criminal case, where life or liberty is at stake, as it is in a civil action for monetary damages.
For the reasons stated, I would reverse the judgment of the Court of Appeal upholding the disqualification of the Office of the City Attorney of San Francisco.
George, C. 1, concurred.
The fact that Mr. Herrera billed Cobra Solutions, Inc. for only 24 minutes of his time (maj. opn., ante, at p. 845) suggests that his degree of involvement with the “City Store” contract was minimal.