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.)
Nature of Proceedings: Motion Disqualify Counsel Tentative
Jan 19, 2021
Santa Barbara County, CA
Ansari alleges that during the Underlying Action, Yang Law failed to inform her of valuable claims, failed to engage in meaningful discovery, assigned inexperienced attorneys to the matter, billed over $100,000 for matters of no value, failed to disqualify Nicholas Barton (“Barton”), the CPA of Ansari’s ex-husband who had come in as co-counsel of record for Ansari’s ex-husband in the Underlying Action, and forced Ansari to accept a settlement in the Underlying Action by threatening to substitute out as counsel
Jan 19, 2021
Los Angeles County, CA
Hill suggests that Driscoll should be disqualified as Plaintiff’s counsel in this litigation because Driscoll did not attach the third page of the March 8, 2020 letter “that contained defendant’s signature and the listing of the exhibits (i.e., the Hart & King termination letter [dated August 9, 2019])” in his opposition to Hill’s Special Motion to Strike Complaint Pursuant to Code of Civil Procedure § 425.16.
Jan 19, 2021
Los Angeles County, CA
(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was 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.
Jan 15, 2021
Los Angeles County, CA
On May 4, 2020, LP’s counsel proposed a schedule whereby Plaintiffs would appear for depositions on July 28 and 29 and LP would provide supplemental discovery responses on August 5, 2020. Counsel agreed that Plaintiffs would have 45 days after service of the supplemental responses to schedule an informal discovery conference with the Court and two more weeks to file any motion to compel. The parties also met and conferred about substantive discovery issues.
Jan 14, 2021
Santa Clara County, CA
Notably in the present case, RTA seeks to disqualify Berkstresser but does not seek to disqualify Plaintiff’s counsel as the recipient of confidential information – that is, RTA seeks to use the alleged conveyance of confidential/privileged information as an evidentiary tool to remove an obstacle to summary judgment of Plaintiff’s action. In this regard, RTA misreads Shadow Traffic (and similar cases).
Jan 14, 2021
Riverside County, CA
HEARING ON MOTION TO/FOR DISQUALIFY THE LAW FIRM OF LAW OFFICES ANDREW WOLF FILED BY MARILYN ATCHISSON * TENTATIVE RULING: * Defendants’ motion to disqualify plaintiffs’ counsel is denied. Plaintiffs, a husband, wife and child, sued defendants over habitability claims arising in early 2017. Defendants posit that an unwaivable conflict of interest has arisen among the plaintiffs because, years after this lawsuit was filed, one of them is alleged to have committed crimes against the other two.
Jan 13, 2021
Contra Costa County, CA
On September 29, 2020, the Court granted a motion to disqualify Plaintiff’s counsel. According to Plaintiff, new counsel began representing Plaintiff on or about October 1, 2020. (Motion at p. 1.) On October 1, 2020, the Court signed the parties’ Case Management Order for Phase 2. Plaintiff argues that with new counsel, the pre-trial dates in the Case Management Order need to be continued so that the new counsel can become familiar with the case and can take discovery.
Jan 13, 2021
Personal Injury/ Tort
other
Los Angeles County, CA
The Court denies Defendant/Cross-Complainant Diane Kim’s Motion to Disqualify Limnexus LLP as Counsel for Osmo. A court has inherent power “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every manner pertaining thereto.” [CCP § 128(a)(5)]. This includes the power to disqualify counsel in appropriate cases. [In re Complex Asbestos Litig. (1991) 232 Cal.App.3d 572, 575.]
Jan 13, 2021
Orange County, CA
“In exercising its discretion to disqualify counsel under the advocate-witness rule, a court must consider: (1) whether counsel's testimony is, in fact, genuinely needed; (2) the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons; and (3) the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.
Jan 12, 2021
Los Angeles County, CA
When faced with disqualifying an attorney for an alleged conflict of interest, courts have considered such interests as the clients' right to counsel of their choice, an attorney's interest in representing a client, the financial burden on the client of replacing disqualified counsel, and any tactical abuse underlying the disqualification proceeding. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 586.)
Jan 12, 2021
Real Property
Quiet Title
Los Angeles County, CA
In its order granting the motion to vacate, the Court concluded that one of the arbitrators had not disclosed grounds for disqualification. Those ground were accepting employment on other matters with defense counsel’s firm while the arbitration was pending without disclosing the financial relationship, as well as ex parte communications between defense counsel and the arbitrator, which the arbitrator did not disclose.
Jan 12, 2021
Real Property
other
Los Angeles County, CA
The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument.
Jan 12, 2021
San Joaquin County, CA
Attorney for the Nelsons have moved this Court to disqualify Vernon Goins based on conflicting declarations regarding ownership of the property at issue from John Riley II and the Rileys. Neither the Rileys nor John Riley II have sought disqualification of counsel. Rather the Nelson’s attorney’s motion to disqualify Mr.
Jan 11, 2021
Contra Costa County, CA
On August 18 and 20, 2020, counsel for Ananda substituted out leaving Ananda self-represented. On November 2, 2020, Ananda filed this motion to disqualify attorney Coles as counsel for Foschini. Ananda asserts that Coles improperly acted as a mediator at a mediation occurring on November 17, 2017, and therefore is disqualified from representing any party without written waivers of the conflict.
Jan 08, 2021
Santa Barbara County, CA
Finally, plaintiffs told the court at the August 13, 2020 Status Conference that they want to move forward with this case despite the stay of two other cases pending the appeal of the court granting motions to disqualify counsel. Defendant Probst is ordered to give notice of the ruling.
Jan 08, 2021
Orange County, CA
The peremptory challenge, although submitted by counsel for both cross-defendants, does state that it is brought on behalf of Erik Goodrich, with the box checked “Cross Defendant.”
Jan 08, 2021
Los Angeles County, CA
Finally, plaintiffs told the court at the August 13, 2020 Status Conference that they want to move forward with this case despite the stay of two other cases pending the appeal of the court granting motions to disqualify counsel. Defendant Probst is ordered to give notice of the ruling.
Jan 08, 2021
Orange County, CA
Disqualification In this same motion, the Perez Defendants also move to disqualify David M. Gilmore as counsel for Plaintiff. (Motion, p. 2:8-9.) However, in their reply, Perez Defendants assert that “[a]s for the Perez Defendants’ request to disqualify Mr. Gilmore, that request is now moot given Plaintiff’s dismissal and Mr. Gilmore’s apparent acknowledgment that Plaintiff will not appeal the dismissal.” (Reply, p. 4:11-13.) The Court DENIES the Perez Defendants’ motion to disqualify David M.
Jan 08, 2021
Other
Intellectual Property
Los Angeles County, CA
On February 28, 2019, the court denied Defendants’ joint motion for terminating sanctions and disqualification of Plaintiff’s attorney. Defendants’ joint motion for terminating sanctions was brought on the grounds that Plaintiff had allegedly produced an edited version of the text messages she exchanged with Wusirika.
Jan 07, 2021
Los Angeles County, CA
Counsel for plaintiff is ordered to destroy the inadvertently disclosed email. Defendants' requests for disqualification and sanctions are denied.
Jan 07, 2021
Employment
Wrongful Term
San Diego County, CA
Disqualification In this same motion, the Perez Defendants also move to disqualify David M. Gilmore as counsel for Plaintiff. (Motion, p. 2:8-9.) However, in their reply, Perez Defendants assert that “[a]s for the Perez Defendants’ request to disqualify Mr. Gilmore, that request is now moot given Plaintiff’s dismissal and Mr. Gilmore’s apparent acknowledgment that Plaintiff will not appeal the dismissal.” (Reply, p. 4:11-13.) The Court DENIES the Perez Defendants’ motion to disqualify David M.
Jan 07, 2021
Other
Intellectual Property
Los Angeles County, CA
Conclusion For the reasons stated, Nucco's motion to disqualify NNM's counsel is DENIED without prejudice. Nucco is directed to serve notice on all parties within two court days of this ruling.
Jan 07, 2021
Other
Intellectual Property
San Diego County, CA
COUNSEL ARE STRONGLY URGED TO SUBMIT ON THE TENTATIVE RULING. IF AN APPEARANCE IS NECESSARY, COUNSEL ARE STRONGLY URGED TO APPEAR REMOTELY VIA LA COURT CONNECT RATHER THAN APPEAR IN PERSON. On September 1, 2016, Plaintiff Jill LaFace filed a Complaint against Ralphs Grocery Company, The Kroger Co., and Does (this action is hereinafter referred to as “LaFace”). On November 12, 2019, bench trial commenced in LaFace before Judge Patricia Nieto.
Jan 07, 2021
Employment
Other Employment
Los Angeles County, CA
On the same day, Hollywood Skyline and Regency Sponsor filed a Motion to Disqualify EMC’s Counsel Skar Kirsh, LLP. Discussion MOTION TO SEAL Unless the law requires confidentiality, court records are presumed to be open to the public, pursuant to a potent “open court” policy undergirded by the First Amendment and favoring the public nature of court proceedings.¿ (Cal. Rules of Court, rule 2.550(c); NBC Subsidiary (KNBC-TV), Inc. v.
Jan 07, 2021
Other
Intellectual Property
Los Angeles County, CA
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