A California appellate court has reversed a decision disqualifying lawyers at Nixon Peabody from a case where the firm briefly hired a lawyer who had worked for the other side.

A trial court judge in Orange Country last year found that Andrew Selesnick, who worked at Nixon Peabody's Los Angeles office for about five weeks last year, worked for an opposing party while at a prior firm in a case Nixon Peabody was handling for California Self-Insurers' Security Fund. Despite sworn statements from members of the San Francisco-based Nixon Peabody team working on the case stating that Selesnick hadn't shared any confidential information, Orange County Superior Court Judge William Claster disqualified the firm last year, concluding that when an attorney switches sides in litigation, disqualification is mandatory and extends to the entire firm.

On Friday, the Fourth District Court of Appeal found that automatic disqualification wasn't required in this instance and sent the matter back to the trial court to determine whether confidential information was transmitted to Nixon Peabody, or if there are other compelling reasons to disqualify the firm.

“Individual assessment of the facts, rather than automatic disqualification, is a modern rule that better reflects the current realities of law firm life in the 21st century,” wrote Fourth District Justice Eileen Moore.

Moore was joined in the decision by Justices Kathleen O'Leary and Raymond Ikola.

According to the opinion, Selesnick worked at his prior firm Michelman & Robinson from about 2009 until February 2017 and served as chair of the firm's health care department. That firm has represented ActivCare Health Care Group and Mountainview Retirement Ltd. since 2014 in a lawsuit brought by Nixon Peabody's client seeking reimbursements for worker compensation claims.

According to a declaration filed by Michelman & Robinson's Jeffrey Farrow, Selesnick was actively involved in the case before he departed for Nixon Peabody in February 2017—including participating in confidential discussions about potential liability and damages. Shortly after Selesnick's move, Michelman & Robinson informed Nixon Peabody about the potential conflict issue. According to the decision, Nixon and Selesnick “part[ed] ways” around March 8, 2017.

In Friday's decision, Moore cited the Fourth District's 2010 decision in Kirk v. First American Title Insurance in finding that “whether disqualification of the entire firm is automatic is an open question” in cases where a conflicted lawyer leaves before a disqualification motion is decided.

“Automatically finding that Selesnick's very short tenure at Nixon Peabody is sufficient to impute knowledge to the entire firm, including attorneys working on the matter in a different office, places form over substance,” she wrote.

Selesnick, who is now a shareholder in the Los Angeles office of Buchalter, said he hadn't seen the decision when contacted Friday afternoon and declined to comment further.

Michelman & Robinson's Farrow didn't immediately respond to messages Friday.

Allison McClain, a spokeswoman for Nixon Peabody, said in an email that the firm was “pleased the appellate court granted our petition.”