California Family Law Report

Case of the Month (from CFLR Monthly)

Inherent conflict between grandfather’s role as advocate and his “near-certain” role as witness . . .

In affirmance, Third District holds that trial court did not err by disqualifying child’s paternal grandfather from representing child’s father in child-custody action against child’s mother, even though she was never his client, because family entanglements made it highly likely that grandfather would have to testify and raised potential for misuse of confidential information

In November 2009, Kayla Kennedy, who had been dating Tyler Eldridge, learned that she was pregnant with his child. Their son, Calvin, was born in June 2010. In July, Kayla filed a petition to establish Tyler’s paternity and for custody and child support orders. In a supporting declaration, Kayla stated that she and Tyler had almost reached an agreement about visitation, but she remained “troubled by Tyler’s apparent use of marijuana.” Tyler, represented by his father, attorney Richard Eldridge, admitted paternity and asked for scheduled visitation. From that time on, the litigation turned ugly, with charges of marijuana use flying back and forth, along with allegations of erratic behavior and mental instability on both sides. In addition, “[e]ach made serious charges against the other’s family.”

On September 7, 2010, Kayla filed a motion to disqualify Richard Eldridge from representing Tyler in the litigation. In her supporting declaration, she claimed that Richard and his wife, Deborah, who practiced law together, represented her father in his disso and consulted with Kayla’s stepmother Megan, who worked as Deborah’s secretary, during that litigation. Further, Kayla stated, the attorneys had her prepare a declaration in support of her father and had employed her as a process server. All of that, Kayla asserted, meant that Richard had acquired confidential information about her. Moreover, she averred, both Richard and Deborah had been “ ‘emotionally involved’ ” in the custody case. In opposition, Tyler claimed that Kayla had an “improper purpose” for seeking Richard’s disqualification. In separated points and authorities, Richard claimed that Kayla’s motion was procedurally defective, and that she lacked standing to bring it because she had never been his client and he owed her no duty of loyalty or confidentiality. He asked the trial court to deny the motion and sought sanctions.

At a hearing on October 6, 2010, Richard conceded that Deborah had represented Kayla’s father in his disso, during which Kayla had submitted a declaration, but maintained that she had prepared it on her own. He also asserted that Kayla had never worked for his law firm, and reiterated that she was never his client. Kayla told the trial court that Megan had asked her to prepare a declaration for her father, and then Megan had given it to Deborah. In a written ruling issued on November 10, the trial court found that Kayla had standing to bring the disqualification motion, despite not having been Richard’s client, that Richard’s “dual role as witness and advocate compromised his ethical duty to maintain the integrity of the judicial process,” and that it was not in Calvin’s best interests to have Richard acting “in the unseemly role of advocate” against his mother in the custody and child support case. Accordingly, the trial court granted Kayla’s motion and ordered Richard removed as Tyler’s attorney.

Tyler appealed, but the Third District affirmed.

No sitting idly by . . .
Before they tackled the merits of the appeal, the justices noted that Kayla had failed to file a responsive brief. Declining to treat that as tantamount to a default, the panel said they would independently examine the record and reverse only for prejudicial error. With that out of the way, the justices turned to the issue of standing. Tyler, they found, had renewed his trial contention that Kayla lacked standing to seek Richard’s removal because she had never been his client and he owed her no duty of confidentiality. However, they could find no California case that limited standing to seek disqualification to clients or former clients of the challenged attorney. The reason for that, the panel explained, is that the trial court has the inherent power to control its ministerial officers and persons connected with the judicial process, in order to preserve public trust and the integrity of that process. Therefore, the justices continued, the trial court need not wait for a client or former client to bring such a motion when it is faced with an ethical breach that “is ‘manifest and glaring’ and may allow a nonclient to do so where there is a “ ‘third party conflict of interest or other ethical violation.’ ” For example, they continued, in Woods v. Superior Court (Woods) (on retransfer 1983) 149 Cal.App.3d 931, 197 Cal.Rptr. 185, 1984 CFLR 2409, 1983 FA 68, a wife was permitted to seek disqualification of her husband’s attorney, who was formerly the attorney for the family business. Quoting the court in Meza v. H. Muehlstein & Co., Inc. (2009) 176 Cal.App.4th 969, 98 Cal.Rptr.3d 422, the panel cautioned that “ ‘protection of the attorney-client privilege is not the only ground for a motion to disqualify an attorney,’ ” and concluded that the trial court has the authority to grant the disqualification motion of a nonclient where the attorney’s continued representation threatens to cause a cognizable injury to an opposing litigant or to undermine the integrity of the judicial process.

Too close for comfort . . .
With those principles in mind, the justices looked to see how they had been applied in this case. They reasoned that disqualification is appropriate where it is reasonably probable that the attorney has acquired information through prior representation or “ ‘improper means’ ” that “ ‘would likely be used advantageously against an adverse party during the course of the litigation.’ ” (quoting In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 283 Cal.Rptr.732, 1991 CFLR 4890, 1991 FA 496). Here, it was certainly reasonable to believe that Richard’s law firm had acquired confidential information about Kayla, since the firm represented Kayla’s father in his disso, she had filed a declaration in that action, and her stepmother was a secretary at the firm. The panel found guidance in Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft (1999) 69 Cal.App.4th 223, 81 Cal.Rptr.2d 425, in which the appellate court had applied the substantial relationship test found in successive representation cases to determine that the trial court had properly disqualified a law firm from representing a water district in litigation against a subsidiary of its former client, despite the fact that the subsidiary had never been the firm’s client. The court first considered whether there were similarities between the factual situations, legal questions, and the nature and extent of attorney involvement in the two cases and whether the former client and the subsidiary shared a unity of interests that required treating them as a single entity in the conflict analysis. When the justices used that reasoning on the facts here, they found that there was a substantial relationship between Richard’s firm’s representation of Kayla’s father in his disso and its representation of Tyler in the custody case because Kayla played “a key role” in both, as a child in a custody battle between her parents and as a parent herself in the current case. In each case, the panel reasoned, Kayla’s “maturity and emotional stability,” as well as “the nature and quality of her home environment, were important issues, and the information the firm acquired about them in her father’s disso might well be pertinent and helpful in the current case. Moreover, it was highly likely that matters concerning Kayla were discussed by Kayla’s father and stepmother during that case. In addition, the trial judge had noted that the information included in one of Tyler’s declarations might well have come from facts obtained during that representation and not from his own knowledge, such as the content of conversations between Kayla and her father regarding her future endeavors and family conflicts. Besides, Kayla herself had stated in her declaration that Richard’s law firm had acquired access to her confidential information. Summing up, the justices concluded that the similarity between the disso case and this one, as well as the overlapping factual issues in them, showed a substantial relationship between the two cases and required them to treat Kayla and her father as a single unity for ethical conflict purposes. Given that, there was a presumption that Richard’s firm had acquired confidential information about Kayla that could be used to obtain an unfair advantage over her in this case and the trial court had not erred in so finding.

Multiple hats, multiple problems . . .
The trial court, the justices noted, had found an additional reason for disqualification: “the almost inevitable prospect” that Richard would be acting not only as Tyler’s attorney, but also as a percipient witness in the custody dispute. If that happened, the panel explained, he would be violating the “advocate-witness rule,” which precludes an attorney from acting as both advocate and witness in the same proceeding. In People v. Donaldson (2001) 93 Cal.App.4th 916, 113 Cal.Rptr.2d 548, the court opined that a lawyer who acts in both capacities “ ‘becomes more easily impeachable for interest and thus may be a less effective witness,’ ” and places himself “ ‘in the unseemly and ineffective position of arguing his own credibility.’ ” The justices saw clearly the potential for both problems in this case. They reasoned that Richard’s duty to tell the truth as a witness might not be “coextensive with” his duty to obtain the best result for his client, but he would not have the option to choose between them. The “conflict inherent in Richard’s dual status” had already shown itself when Richard, at a past hearing, stated that he didn’t smoke pot and made anyone go out in the back yard if they wished to smoke cigarettes at his house. It was unclear, the justices said, whether he was making those statements as a witness or as an offer of proof for his client. Accordingly, the panel found that “no judicially tolerable circumstance” under which Richard could effectively perform the “multiple, awkward, and conflicting duties” of advocate and witness in the same case.

While the judicial system unravels . . .
Finally, the justices found that the “multiple and interconnected family entanglements present here results in a strong appearance of impropriety and undermines the integrity of the judicial system. In a discussion in which Acting Presiding Justice Nicholson joins only as to the result, the majority listed those entanglements and agreed with the trial court that “ ‘the relationships are ongoing and the subject of the litigation cannot be left at the office.’ ” The majority acknowledged that People v. Peoples (1997) 51 Cal.App.4th 1592, 60 Cal.Rptr.2d 173, which they found instructive, was a criminal case that enjoyed special status, but they saw no reason not to extend the same status and high ethical standards to family law cases, which involve “the most intimate and personal of human affairs” and are deserving of careful scrutiny for potential ethics violations. The majority believed that it could be extremely disruptive to the trial court’s determinations to have Richard arguing for reduced timeshare, litigating and testifying about events in his household, and giving Tyler advice that could be “skewed” by Richard’s own self-interest. They were equally concerned about the effect on Calvin of his grandfather’s acting as adversary against his mother, and on Richard of being placed in a position that put his family loyalties in conflict, and compromised his responsibilities to his grandson. The majority could envision the trial court’s “playing host to an awkward spectacle, where the lines between attorneys, relatives, and litigants become blurred and confused.” For all those reasons, the panel concluded that the trial court had not erred in ordering Richard’s disqualification and affirmed its order.