VII. Attorneys and Consultants Who Work for Both Market
Participants and Non-Market participants
A. Parties' Positions
Edison is concerned that while an expert may not be a market participant in his/her work for one group, "certain experts can work for a `trade group' on one matter and then be retained to work for a power seller. In these instances, the persons who obtained the confidential information would have a difficult time not considering it in advising their power-marketer clients."20
Noting that "the California energy legal and consultant business is limited and insular,"21 Edison proposes that attorneys and consultants who sign confidentiality agreements and are provided access to confidential information may not work for any entity that engages in the purchase, sale or marketing of power for a period of two years.
CARE also expresses concerns about attorneys and consultants who represent clients with different interests:
CARE agrees with SCE: "How can we be sure that no confidential data obtained by an attorney as a representative of power customers will be leaked, however inadvertently, to the attorney next door, who represents the other side? Can we be sure that a consultant to power buyers does not later end up working for power sellers and using the confidential data he obtained to further his new clients' interests?"22
CLECA opposes Edison's two-year employment ban: "This is an express limitation on the attorney's or consultant's business. . . . CLECA's counsel has never encountered such an attempt to intimidate and limit active participation."23
B. Discussion
We will not impose Edison's two-year employment ban on attorneys and consultants who obtain access to confidential information. We agree with CLECA that this is a serious limitation on professionals' livelihoods.
By the same token, we agree with Edison that the Commission attorney bar and consultant community is fairly small, and that there is a risk of inadvertent disclosure if an attorney or consultant who obtains confidential information while not representing a market participant later commences work as a market participant's representative.
We believe the best practice is to deal with such situations in the terms of the model protective order and nondisclosure agreement we intend to develop in this proceeding. Thus, it is entirely appropriate for the model order to prohibit an attorney, consultant or other representative who receives market sensitive data while not in a market participant position from disclosing such data to market participants. While a protective order cannot always preclude inadvertent disclosures, we believe it is a better and less draconian solution than one that prohibits professionals from representing clients of their choosing.
Further, any person or entity concerned about disclosure of its market sensitive data disclosed to an attorney, consultant or other representative who has "changed hats" may make a motion seeking a declaration under penalty of perjury from that representative that he/she has not and will not disclose the market sensitive data to the new client. And of course, any violation of a protective order may be brought to the Commission's attention in a motion for sanctions or fines.
However, simultaneous representation of both groups presents a more serious risk that market sensitive information will be revealed to market participants. Just as it might be a conflict of interest for an attorney or consultant to represent both sides of a dispute in certain circumstances,24 we believe a professional who simultaneously represents both sides of the market participant equation could inadvertently compromise the holder of market sensitive information. With the exception noted below, an attorney or consultant that simultaneously represents market participant(s) and non-market participant(s) may not have access to market sensitive data.
If, on the other hand, simultaneous representation is of market participant and non-market participant clients involved in completely different types of matters, there should be no bar (although there may be ethical implications of such representation that we do not address here). If, for example, an attorney represents a market participant in matters unrelated to procurement, resource adequacy, RPS, or the wholesale purchase, sale or marketing of energy or capacity, or the bidding on or purchasing of power plants, or bidding on utility procurement solicitations, in a forum other than this Commission, and simultaneously represents a non-market participant in cases related to these topics before the Commission, there should be no bar to the attorney's receipt of market sensitive data (pursuant to a non-disclosure agreement and protective order) in the latter matter. In close cases, the balance should militate to bar simultaneous representation because of the risks it poses.
20 Edison reply comments at 2.
21 Edison opening comments at 5.
22 CARE reply comments at 9-10, citing Edison's opening comments at 5-6.
23 CLECA reply comments at 5.
24 See, e.g., Flatt v. Superior Court (Daniel), 9 Cal. 4th 275, 284 (1994), 1994 Cal. LEXIS 6585 ("[I]n all but a few instances, the rule of disqualification in simultaneous representation cases is a per se or 'automatic' one").
