What is a Motion to Disqualify Counsel?
“A trial court’s authority to disqualify an attorney derives from the power inherent in every court ‘[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 matter pertaining thereto.’” People ex rel. Dept. of Corp. v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145; Code Civ. Proc., § 128(a)(5). “[T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them.” Kennedy v. Eldridge (2011) 201 Cal.App.4th 1204-1205.
“A conflict arises when the circumstances of a particular case present a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person. If competent evidence does not establish such a conflict, the attorney is not disqualified for a conflict.” Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 425-426.
“[D]isqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety. The purpose of disqualification is not to punish a transgression of professional ethics. Disqualification is only justified where the misconduct will have a ‘continuing effect’ on judicial proceedings.” Sheller v. Super. Ct. (2008) 158 Cal.App.4th 1697, 1711.
Only a party who has (or has had) a fiduciary relationship with a lawyer has standing to disqualify the lawyer. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1355. Some cases hold that the complaining party must prove a present or past attorney-client relationship with the attorney who is the target of the motion. Earl Scheib, Inc. v. Super. Ct. (1967) 253 Cal.App.2d 703, 707.
“Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest.” Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356. The injury must be “concrete and particularized, not hypothetical.” Id. at 1358. “[A] highly speculative and tactical interest does not meet the standing requirements.” Id. at 1359. Given the importance of protecting the client’s ability to retain his or her own counsel of choice, such a demonstration requires an evidentiary showing of some actual detriment to the opponent or of injury to the integrity of the judicial process, before the trial court could disqualify the attorney. Gilbert v. Nat’l Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240, 1258, citing Smith, Smith & Kring v. Super. Ct. (1997) 60 Cal.App.4th 473, 577-582.
“Protection of the attorney-client privilege is not the only ground for a motion to disqualify an attorney.” Kennedy v. Eldridge (2011) 201 Cal. App. 4th 1197, 1204-1205.
“[W]hile federal courts generally limit standing to bring disqualification motions to clients or former clients, in California ‘where the ethical breach is “‘manifest and glaring’” and so “infects the litigation in which disqualification is sought that it impacts the moving party’s interest in a just and lawful determination of [his or] her claims”, a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation.’” Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204 [135 Cal. Rptr. 3d 545].
“[W]here an attorney’s continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel.” Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205.
Other courts permit disqualification on a different basis, holding that standing is established so long as the lawyer owed a duty of confidentiality to the complaining party and breached it. DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832.
The courts apply a two-pronged test to determine whether the court must conclusively presume that an attorney has knowledge of confidential information about a prior client that requires the court to disqualify the attorney from representing a current client adverse to the prior client.
First, there must be a “substantial relationship” between the former representation and the current representation. H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1454.
Second, it must appear that “by virtue of the nature of the former representation or the relationship of the attorney to his [or her] former client” that “confidential information material to the current dispute would normally have been imparted to the attorney.” Id.
Absent evidence of actual knowledge of material confidential information, both prongs of the test must be satisfied before a Court applies the conclusive presumption of knowledge of such information. Adams v. Aerojet General Corp. (2001) 86 Cal.App.4th 1324, 1331; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 563–564.
If both prongs of this test are satisfied, “access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney’s representation of the second client is mandatory.” Jun Ki Kim v. True Church Members of Holy Hill Community Church (2015) 236 Cal.App.4th 1435, 1454. “[I]f the nature of the representation is such that confidences could have been exchanged between the lawyer and client,” and it would be if it satisfies both prongs of this test, “courts will conclusively presume they were exchanged, and disqualification will be required.” City Nat. Bank v. Adams (2002) 96 Cal.App.4th 315, 327. This presumption, if applicable, is conclusive and is thus, by definition, not rebuttable. Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 409.
“Motions to disqualify counsel are especially prone to tactical abuse because disqualification imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. As a result, these motions must be examined ‘carefully to ensure that literalism does not deny the parties substantial justice.’” City of Santa Barbara v. Super. Ct. (2004) 122 Cal.App.4th 17, 23. “Such motions can be misused to harass opposing counsel..., to delay the litigation..., or to intimidate an adversary into accepting settlement on terms that would not otherwise be acceptable.... In short, it is widely understood by judges that ‘attorneys now commonly use disqualification motions for purely strategic purposes.’” Gregori v. Bank of America (1989) 207 Cal.App.3d 300, 301.
“Motions to disqualify counsel present competing policy considerations. On the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings before the court.... On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorney’s innocent client, who must bear the monetary and other costs of finding a replacement. A client deprived of the attorney of his choice suffers a particularly heavy penalty where, as appears to be the case here, his attorney is highly skilled in the relevant area of the law.” Gregori v. Bank of America ((1989) 207 Cal.App.3d 300.
A motion to disqualify tests whether the opposing party’s right to counsel of his or her choice, which is an important right, “must yield to ethical considerations that affect the fundamental principles of our judicial process.” People ex rel. Dept. of Corp. v. SpeeDee Oil Change Systems, Inc. (“SpeeDee”) (1999) 20 Cal.4th 1135, 1145–46. “The paramount concern must be to preserve public trust in the scrupulous administration of justice and integrity of the bar.” Id. at 1145.
The Court’s Decision
Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113. In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. Id.
In ruling on a motion to disqualify, the court should weigh:
- the party’s right to counsel of choice;
- the attorney’s interest in representing a client;
- the financial burden on a client of change of counsel;
- any tactical abuse underlying a disqualification motion; and
- the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel.
Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.
When ruling on a disqualification motion and balancing the competing interests, the Court “should resolve the close case in favor of the client’s right to representation by an attorney of his or her choice.... Under the present rule, if a party is willing to accept less effective counsel because of the attorney’s testifying, neither his opponent nor the trial court should be able to deny this choice to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.” Reynolds v. Super. Ct., 177 Cal.App.3d 1021, 1028 (1986).
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Plaintiff Julie Pavlina San Giorgio (“Julie”) has filed a motion to disqualify the firm of Farella Braun & Martel (“Farella”), counsel for Defendant and Cross-complainant Stephen Pavlina, Jr. (“Stephen”).1 “A trial court’s authority to disqualify an attorney derives from the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all...
..t yield to ethical considerations that affect the fundamental principles of our judicial process.” (SpeeDee, supra, 20 Cal.4th at pp. 1145–46.) “[D]isqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility [Citation.] The paramount concern must be to preserve public trust in the scrupul...
Apr 18, 2019
- Judge Mary E. Arand
Santa Clara County, CA
Nature of Proceedings: Motion: Disqualify Counsel filed by Alma Del Pueblo Motion by defendant Alma Del Pueblo Owner’s Association Inc. dba The Management Trust to disqualify plaintiff’s attorney ATTORNEYS: James Scafide /Tyler Sprague of Scafide law Firm, PC for plaintiff Jeff C. Hsu / Patrick A. Gillespie of Murphy, Pearson, Bradley & Feeney for moving defendant RULING: The motion is deni...
..first amended complaint (FAC) on December 19, 2018. The operative FAC alleges 27 causes of action arising from her purchase and ownership of an affordable residential condominium unit in the Alma del Pueblo development, which is a mixed-use (i.e., both commercial and residential) development. The commercial units included the Santa Barbara Public Market. The residential units were predominantly so...
Jun 04, 2019
- Judge Thomas Anderle
Santa Barbara County, CA
Nature of Proceedings: Motion to Disqualify; Motion to Amend Santa Barbara County Superior Court Department 5 Judge Colleen K. Sterne Tentative Ruling January 9, 2012 Case: Jeffrey E. Mitchell v. Stratus Media Group, Inc., et al., and consolidated case, No. 1370707 Matters: (1) Motion of Defendants to Disqualify Gersh Derby as Counsel...
..t attached as exhibit A to the motion is deemed served on the parties; plaintiffs shall file the first amended complaint, or arrange that the copy of the first amended complaint lodged with the court be filed, on or before January 13, 2012. Discussion: There are consolidated actions asserting claims of securities violations with respect to corporate stock. On December 28, 2011, the court appoin...
Jan 01, 1970
- Judge Colleen Sterne
Santa Barbara County, CA
SUBJECT: Motion to Disqualify Counsel Moving Party: Plaintiff Cleve Pell Resp. Party: Defendants The Montebello Unified School District and The Montebello Unified School District Board of Education TENTATIVE RULING: The motion to disqualify Defendants’ counsel is DENIED. BACKGROUND: Plaintiff Cleve Pell filed suit on October 16, 2017 against Defendants The Montebello Unified School District...
..basis for the continuance. (Defendant’s Ex Parte Application to Continue Trial, p. 2:18-19; Skvarna Declaration.) On March 1, 2019, Plaintiff filed an ex parte application to request an evidentiary hearing because the declaration of Dr. Mark Skvarna that was submitted in Plaintiff’s ex parte application for a trial continuance may have contained a forged signature and been submitted without his k...
Apr 03, 2019
- Judge Michael P. Linfield
Los Angeles County, CA
(1) MOTION TO DISQUALIFY COUNSEL; (2) NOTICE OF JOINDER; (3) MOTION TO QUASH OR, IN THE ALTERNATIVE, MODIFY DEPOSITION SUBPOENA; REQUEST FOR SANCTIONS MOVING PARTY: (1) Plaintiffs Robert Warren Jackson and Gregory Bauer; (2) Cross-Defendant W.L. Petrey Wholesale, Inc. (3) Defendant/Cross-Complainant Gopher Protocol, Inc. RESPONDING PARTY(S): (1) Defendant/Cross-Complainant Gopher Protocol, I...
... ANALYSIS Motion to Disqualify Counsel Notice of Joinder Cross-Defendant W.L. Petrey Wholesale, Inc.’s notice of joinder in the motion to disqualify is GRANTED as timely. Plaintiff’s Evidentiary Objections Bauer Declaration Nos. 1 - 7: SUSTAINED. Hahn Declaration Nos. 1 - 2: SUSTAINED. Discussion A complaining party who files a motion to disqualify is required to have standing. (Dino v...
Sep 24, 2019
Personal Injury/ Tort
- Judge Elizabeth Allen White
Los Angeles County, CA
9 COUNTY OF SANTA CLARA 12 YI-CHING PAO, an individual, 13 Plaintiff, TENTATIVE RULING RE: MOTION TO DISQUALIFY 14 vs. 15 NINA YUAN, an individual, RICHWAVE TECHNOLOGY, INC., a Taiwan corporation, 16 and SHYH-CHYI WONG, an individual, and DOES 1 through 20, inclusive, 22 I. BACKGROUND 23 This action arises from a dispute over the settlement of an earlier lawsuit. According to 24 the allegat...
..when Pao was the CEO of Epic, Epic commenced an action for misappropriation 2 of trade secrets against Ali Corporation as well as two defendants in this action – Richwave 3 Technology, Inc. (“Richwave”) and its CEO Shyh-Chyi Wong (“Wong”). James Li and his firm 4 LiLaw, Inc. (together, “Li”) represented Epic. In 2009, Epic settled its claims against Ali 5 Corporation. While the claims against Ric...
Oct 12, 2018
- Judge Thomas E. Kuhnle
Santa Clara County, CA