By David C. Carr
The California Rules of Professional Conduct (Rules) are intended to provide standards for the imposition of professional discipline on lawyers in California (Rule 1.0.1.) But in practice the Rules are applied in other contexts, such as legal malpractice, fee disputes and disqualification of counsel in court, a reality acknowledged by Comment 1 to Rule 1.0.1:
Nevertheless, a lawyer’s violation of a rule may be evidence of a breach of a lawyer’s fiduciary or other substantive legal duty in a non-disciplinary context…(see also Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 44 [citation omitted] [holding that evidence of a lawyer’s violation of a Rule of Professional Conduct can be evidence of a violation of fiduciary duty. A violation of a rule may have other non-disciplinary consequences. (See, e.g., Fletcher v. Davis(2004) 33 Cal.4th 61, 71-72 [citation omitted] [enforcement of attorney lien in an hourly case requires compliance with former Rule 3-300, now Rule 1.8.]
A pair of recent decisions from the Court of Appeal, issued just a day apart, help illuminate the interplay of the Rules and the remedy of disqualification. They drive home the point that disqualification is a remedy fashioned by the trial for conduct that impacts the fundamental integrity of the judicial proceeding, a remedy that may or may not be based on a violation of the Rules. Moreover, it is a disfavored remedy that involves a consideration of other factors, such as the parties’ fundamental right to their choice of counsel and the timeliness of a party in invoking the remedy. In one case, the Court of Appeal reversed the trial court decision granting the motion to disqualify counsel; in the second, the Court of Appeal upheld the trial court’s original denial of the motion.
City of San Diego v. Superior Court [Hoover] (Fourth District, Div. 1, case no. D073961 filed 12/19/18) involved a police officer subject to internal affairs investigation. The officer was interviewed by internal affair’s officers with counsel for the officer in the investigation and a deputy city attorney present. Questions about a separate matter where the officer was represented by other counsel were asked and objected to on the grounds of attorney-client privilege. The deputy city attorney rejected the privilege claim, and the officer was instructed to answer on pain of possible termination. The deputy city attorney also asked questions directly of the officer that were answered. The trial court granted the officer’s motion to disqualify the City Attorney’s office. The Court of Appeal reversed. Despite the unauthorized contact with a party represented by counsel, found by the Court of Appeal to violate former Rule 2-100 (now Rule 4.2), a transcript of the interview showed that no confidential information was disclosed. Under these circumstances, the Court of Appeal found that disqualification of the City Attorney’s office would be unduly punitive.
In Re Antelope Groundwater Cases [Antelope Valley – East Kern Water Agency v. Los Angeles Waterworks Dist. 40] (2010) 30 Cal. App. 5th 602 brings to mind Mark Twain’s famous aphorism that, in the west, whiskey is for drinking and water is for fighting about. The Law Firm began representing Waterworks District no. 40 in complex litigation over groundwater in 2004. Another water district (Antelope Valley – East Kern: AVEK) was represented by the same firm as general counsel. In 2006, AVEK became embroiled in the litigation and employed other attorneys to represent it. Ten years after that, and after most of the litigation had been resolved, AVEK discharged the Law Firm and demanded they withdraw as counsel for Water District; six months later AVEK moved to disqualify Law Firm. The trial court denied the motion; the Court of Appeals affirmed. Despite the lack of written consent for the conflicted representation (required by former Rule 3-310(c), now Rule 1.7) the Court of Appeals found that AVEK effectively consented to Law Firm’s representation by its inordinate delay in objecting and moving to disqualify the Law Firm.
Antelope Valley is especially striking because conflicted representation is the most common grounds for disqualification. The Supreme Court famously articulated the doctrine of automatic “per se” disqualification for conflicted representation in Flatt v. Superior Court (1994) 9 Cal.4th 275. The uncompromising language in Flatt has made it a controversial case among ethics lawyers for years. A few years after Flatt, the Supreme Court opinion in the memorably named case People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143–1144, emphasized the broad discretion of the trial court in imposing the drastic remedy of disqualification, which deprives a party of their chosen lawyer, subjecting them to potentially great prejudice and has tremendous potential for abuse.
Disqualification and the Rules of Professional Conduct are like apples and oranges; certainly related but not at all the same. Counsel seeking to invoke the disqualification remedy must understand that even proven violations of Rules don’t necessarily invoke the remedy.
David C. Carr is an attorney at law.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**
This article was originally published in the SDCBA’s “Ethics in Brief” column series.