In general, there are two types of situations in which conflicts requiring the disqualification of counsel may arise: successive representation and concurrent representation. (Cal West Nurseries, Inc. v. Superior Court (2005) 129 Cal.App.4th 1170, 1174.)
Concurrent representation involves directly adverse conflicts between clients. The existence of this conflict is per se disqualification absent the informed written consent of both clients. (California Rules of Professional Conduct, Rule 1.7(a), (d); see also, Flatt v. Superior Court (Daniel) (1994) 9 Cal.4th 275, 284.)
Informed written consent generally requires both written disclosures by the lawyer to the clients and written consents provided by the clients. (California Rules of Professional Conduct, Rules 1.0.1.(e), (e-1), 1.7(a), (b).) It is possible for a client’s actions to invoke implied consent and waiver of potential conflicts. (Marriage of Friedman (2002) 100 Cal.App.4th 65, 71.)
Rule of Professional Conduct 1.7 (formerly 3-310(c)) provides that a lawyer will not, without informed written consent from each client, represent a client with an interest adverse to another client. In considering conflicts of interest in a concurrent representation, the court must focus on the attorney’s duty of loyalty. (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 428.) “A per se or automatic disqualification rule applies when counsel's representation of one client is adverse to the interests of another current client.” (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1724.)
The scope of an attorney's duty of confidentiality to a former client is set out in the Rule of Professional Conduct 1.9 (formerly 3–310(E)). It provides in relevant part that: (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent. “[A] ‘substantial relationship’ exists whenever the ‘subjects’ of the prior and the current representations are linked in some rational manner.” (Jessen v. Hartford Cas. Ins. Co. (2003) 111 Cal.App.4th 698, 711.)
Three factors are used in determining whether there is a substantial relationship: factual similarity; legal similarity; and the nature and extent of the attorney’s involvement with the cases. (Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566, 576-577.) Two matters are “the same or substantially related” for the purposes of Rule 1.9, if they involve a substantial risk of a violation of an attorney’s duty not to do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, and use against the former client knowledge or information acquired by virtue of the previous relationship. (Rules of Prof. Conduct, rule 1.9, comments 1 [citing Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811] & 3.) This occurs, for example, if the matters involve the same transaction or legal dispute; or if the lawyer normally would have obtained confidential information, and the lawyer would be expected to use or disclose that information in the subsequent representation because it is material to the subsequent representation. (Rules of Prof. Conduct, rule 1.9, comment 3.)
The power of the court to order the disqualification of counsel is statutory. “Every court shall have the power to do all of the following: [¶] … [¶] (5) [t]o control in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code of Civil Procedure section 128(a)(5).) “Code of Civil Procedure section 128, subdivision (a)(5) gives courts the power to order a lawyer’s disqualification.” (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 831-832.) A disqualification motion addresses a conflict between a party’s right to choose its counsel and the overall needs of the judicial system to maintain ethical standards of professional responsibility for attorneys. (Comden v. Superior Court (1978) 20 Cal.3d 906, 915; SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “The paramount concern must be to preserve public trust in the scrupulous administration of justice and 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.” (SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th at 1145.)
“One of the principal obligations of every attorney is to protect each of his or her clients in every possible way. It is a clear violation of that duty for an attorney to assume a position adverse or antagonistic to the client without the latter’s free and intelligent consent, given with full knowledge of all the facts and circumstances.” Gilbert v. Nat’l Corp. for Hous. P’ships (1999) 71 Cal.App.4th 1240, 1253. “[A] conflict of interest exists whenever a lawyer’s representation of one of two clients is rendered less effective because of his representation of the other.” Id.
“In exercising its discretion with respect to granting or denying a disqualification motion, a trial court may properly consider the possibility that the party brought the motion as a tactical device to delay litigation. Where the party opposing the motion can demonstrate prima facie evidence of unreasonable delay in bringing the motion causing prejudice to the present client, disqualification should not be ordered. The burden then shifts back to the party seeking disqualification to justify the delay. Delay will not necessarily result in the denial of a disqualification motion; the delay and the ensuing practice must be extreme.” (Western Continental Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, 763-764.)
On appeal, a trial court's decision concerning a disqualification motion will not be disturbed absent an abuse of discretion. (People ex rel Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135, 1143.) "The trial court's exercise of this discretion is limited by the applicable legal principles and is subject to reversal when there is no reasonable basis for the action. [Citations.]" (In re Complex Asbestos Litigation (1991) 232 Cal. App. 3d 572, 585.) Only a Party with an expectation of confidentiality can disqualify a lawyer. (Id.)
subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.
Nov 24, 2020
Orange County, CA
The Motion (ROA # 25) of Defendant JOHN WITTMAN ("Defendant") for an order disqualifying counsel for Plaintiff GABRIEL QUINTANILLA ("Plaintiff"), the law firm of Procopio, Cory, Hargreaves & Savitch, from representing Plaintiff in this litigation, is GRANTED. The Court continued the hearing of this Motion to allow Defendant to lodge under seal evidence, if any, that the subject property had been identified on the Schedule of Assets and Debts prepared by Defendant's former counsel (Lionel P.
Nov 23, 2020
Contract
Breach
San Diego County, CA
Judge Lu has retained counsel and intends to pursue mediation with the Sellers. The Court makes this disclosure so that the parties are aware of all facts reasonably related to the issue of disqualification. The Court has no basis to recuse itself. The Court can remain fair and impartial to all parties.
Nov 23, 2020
Real Property
Landlord Tenant
Los Angeles County, CA
DISCUSSION The Court shall vacate an arbitration award if an arbitrator making the award “failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware.” (Code Civ. Proc., § 1286.2, subd. (a)(6).)
Nov 23, 2020
Real Property
other
Los Angeles County, CA
Judge Lu has retained counsel and will be pursuing mediation with the Sellers. The Court makes this disclosure so that the parties are aware of all facts reasonably related to the issue of disqualification. The Court has no basis to recuse itself. The Court can remain fair and impartial to all parties.
Nov 23, 2020
Real Property
Landlord Tenant
Los Angeles County, CA
The hearing on defendant Shalini Ananda’s motion to disqualify counsel from representing plaintiff remains on the January 8, 2021 calendar.
Nov 20, 2020
Santa Barbara County, CA
On the court’s own motion, the Case Management Conference set for today, and plaintiff’s Motion to Disqualify Defendants’ Counsel of Record set for December 11, 2020, are continued to December 18, 2020 at 10:00 a.m., to be heard with defendants’ Motion to Stay Proceedings. Plaintiff is ordered to give notice of the ruling.
Nov 20, 2020
Orange County, CA
On the court’s own motion, the Case Management Conference set for today, and plaintiff’s Motion to Disqualify Defendants’ Counsel of Record set for December 11, 2020, are continued to December 18, 2020 at 10:00 a.m., to be heard with defendants’ Motion to Stay Proceedings. Plaintiff is ordered to give notice of the ruling.
Nov 20, 2020
Orange County, CA
Upon making this disclosure, the Court advised that any party that desires to do so may request a continuance to file a timely motion to disqualify Judge Lu and/or to determine whether it wishes to file such a motion. Having been so advised, all parties (through Counsel) stated: (1) that they waive any right to bring a disqualification motion, and (2) that they wish to proceed with the hearing today.
Nov 20, 2020
Real Property
other
Los Angeles County, CA
Defendants argue plaintiff’s counsel is conflicted, and a motion to disqualify is pending but provide no authority that a pending motion to disqualify counsel stays all other hearings. In 2015 Mashian Law Group entered into a retainer agreement for legal services with Rapsody Holdings, LLC, owned by Renee Cohen and her siblings. Mashian decl. ¶3. On May 25, 2017 Mashian Law signed a new retainer to represent defendant R3 in ongoing litigation related to Rapsody. Mashian decl. ¶12 (Exhibit 2 to appendix).
Nov 19, 2020
Contract
Breach
Los Angeles County, CA
Non-Parties explain that the disqualification of the Orange County District Attorney’s Office (OCDA) on the criminal case Judge Jones’ referral of the criminal case to the California Attorney General’s Office (AG) is a new fact. (Motion; 1:5-10.) The disqualification and referral occurred by way of court order on 8-20-20. (Bond Decl., ¶ 3 and Exhibit C.) This is a new fact that the court did not consider when it issued its rulings on 10-7-20 under ROA Nos. 402 and 403.
Nov 13, 2020
Orange County, CA
IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION. talora gross, Plaintiff, v. EDUCATION MANAGEMENT SYSTEMS; et al. Defendants.
Nov 13, 2020
Employment
Wrongful Term
Los Angeles County, CA
A ‘standing’ requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) A confidential relationship must exist for any party to make an argument for disqualification. (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 357.)
Nov 13, 2020
Real Property
Foreclosure
Los Angeles County, CA
Having been so advised, Plaintiff’s Counsel requested a continuance of the hearing, which the Court granted. The court advised that any party that wished to disqualify Judge Elaine Lu must file and serve a motion for disqualification within 21 days of the October 9, 2020 hearing. The court noted that the failure to file and serve a motion for disqualification within 21 days would be deemed a waiver of any disqualification issues. No party has filed a motion for disqualification since the last court date.
Nov 12, 2020
Real Property
other
Los Angeles County, CA
Defense counsel cannot unilaterally declare that Defendant is not competent to testify. A witness is disqualified as a witness if the witness is incapable of expressing himself or is incapable of understanding the duty to tell the truth. People v. Mincey (1992) 2 Cal.4th 408, 444. Moreover, the party challenging the witness bears the burden of proving disqualification. Id.
Nov 11, 2020
Los Angeles County, CA
CU20-084460 Superior Court of Nevada County Tentative Ruling Plaintiffs' Motion to Disqualify Defendant's counsel is denied without prejudice. The motion was not timely filed or served pursuant to CCP section 1005(b). It was required to be filed by October 21, 2020, but was not filed until October 23, 2020. Additionally, there is no proof of service in the court's file. The documents are signed October 23, 2020. They were required to be served by October 16, 2020.
Nov 10, 2020
Dept. 6
Nevada County, CA
Plaintiffs allege that at the conclusion of the first UD suit, Defendant 2304 Sawtelle retained new counsel Mesisca, Riley & Kreitenberg (“MRK LLP” or “Counsel”) to initiate a second UD suit. (Compl. ¶ 38.) Plaintiffs allege that Defendants filed the second UD action on May 30, 2018, against Plaintiffs (Case No.
Nov 10, 2020
Real Property
Landlord Tenant
Los Angeles County, CA
Plaintiffs allege that at the conclusion of the first UD suit, Defendant 2304 Sawtelle retained new counsel Mesisca, Riley & Kreitenberg (“MRK LLP” or “Counsel”) to initiate a second UD suit. (Compl. ¶ 38.) Plaintiffs allege that Defendants filed the second UD action on May 30, 2018, against Plaintiffs (Case No.
Nov 10, 2020
Real Property
Landlord Tenant
Los Angeles County, CA
Defendant argues that Plaintiff has no less than three counsel of record, meaning that, unlike the plaintiff in Liberty National, disqualification of Kaufman and Melton would not result in Plaintiff being without counsel. Defendant asserts that there was also no waiver for the same reasons there was no consent. The Court finds that Defendant has not waived its right to move to disqualify counsel.
Nov 09, 2020
Los Angeles County, CA
Defendant moves to seal the following documents: portions of Defendant’s Memorandum of Points and Authorities in support of its Motion to Disqualify Plaintiff’s Counsel; portions of the Declaration of Alma Murray in support of HMA’s Motion to Disqualify Plaintiff’s Counsel; portions of the Declaration of Zhanna Bulkina in support of HMA’s Motion to Disqualify Plaintiff’s Counsel; Portions of the Declaration of Thomas N.
Nov 09, 2020
Los Angeles County, CA
The fact that he sent an email to one of the plaintiffs’ family members almost three years ago also does not disqualify him from silently attending depositions. Defendant Bahram Hojreh is ordered to give notice of the ruling unless notice is waived.
Nov 06, 2020
Orange County, CA
Plaintiff has not shown that defendant Hojreh’s brother and attorney, Mark Hojreh, is likely to be a witness at the trial in this case or in any of the related cases, even if he was an officer and general counsel of defendant International Water Polo Club, and plaintiff has not moved for his disqualification. To the contrary, defendant Hojreh has waived any such conflict in writing.
Nov 06, 2020
Orange County, CA
Judge Lu has retained counsel and will be pursuing mediation with the Sellers. The Court makes this disclosure so that the parties are aware of all facts reasonably related to the issue of disqualification. The Court has no basis to recuse itself. The Court can remain fair and impartial to all parties.
Nov 04, 2020
Real Property
Landlord Tenant
Los Angeles County, CA
to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.
Nov 04, 2020
Other
Intellectual Property
San Diego County, CA
to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.
Nov 04, 2020
Other
Intellectual Property
San Diego County, CA
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