The panel will discuss issues such as the standing requirements for disaffected parties as well as whether courts have independent authority to override a client’s right to chosen counsel.
Kennedy v. Aldridge affirmed a disqualification order in a family law case in 2011. Two other appellate districts filed opinions within 24 hours of one another in March 2016 affirming and reversing disqualification orders.
In Costello v. Buckley, plaintiff in a collection action against her former boyfriend sought to disqualify his brother from representing him. The attorney had acquired confidential information about the romantic relationship between his client and brother while defending her in an easement case. Though the prior and successive representations were factually and legally unrelated, the successor client asserted a defense that the funds he received was a gift rather than a loan. He contended that their romantic relationship evidenced such donative intent.
[Rule 3-310(E) of the Rules of Professional Conduct precluding an attorney from accepting employment adverse to a former client without informed written consent.]
The Court of Appeal found that “there is no requirement of precise relationship between the factual and legal issues of the two cases”. The mere knowledge of information given in confidence by a client is sufficient to preclude later representation of an adverse party when the attorney may be called upon to use it against the former client.
In Marriage of Murchison, the reviewing court reversed a disqualification order on the grounds that husband lacked standing to remove his wife’s attorney for an alleged violation of duty owed to her under Rule 3-300 of the Rules of Professional Conduct. Husband had no “legally cognizable interest” in disqualifying her attorney.
Wife retained counsel by securing his fees with a FLARPL on the former family residence, which was awarded to her on condition that she sell it to extinguish husband’s liability on the mortgage. Successive escrows failed to close in time to avoid a foreclosure by the bank due to default in payments. Wife sold the property to her junior lien-holder attorney on the eve of a foreclosure sale pursuant to a written agreement in which she acknowledged the terms were fair and that she had been given an advisement and opportunity to seek independent legal advice. The trial court found that her attorney had not adequately demonstrated to the court that his business transaction with his client was fair and reasonable to her. The Court of Appeal reversed “given wife’s desire to retain lawyer, husband’s lack of standing, no authority requiring disqualification, and the importance of respecting a client’s right to counsel”.