Judge James C. Chalfant, Case Number: 24STCP02047, Date: 2024-10-08 Tentative Ruling

The relationship between attorney and client is a fiduciary relation of the very highest character and binds the attorney to most conscientious fidelity. Zador Corp. v. Kwan, supra 31 Cal.App.4th at 1285. It is, therefore, improper for an attorney to assume a position which is inconsistent with the interests of present or former clients. Id. “‘The fiduciary relationship existing between lawyer and client extends to preliminary consultations by a prospective client with a view to retention of the lawyer, although actual employment does not result.’” People ex rel. Dept. of Corporations v. Speedee Oil, Inc., (“Speedee Oil”) (1999) 20 Cal.4th 1135, 1147-48.

It is the duty of an attorney to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client.” Business and Professions (“Bus. & Prof.”) Code §6068(e).

PRC Rule 1.16 (Confidential Information of a Client) states in subdivision (a): “A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent, or the disclosure is permitted by paragraph (b) of this rule [to prevent certain criminal acts].”

PRC Rule 1.18 (“Duties to Prospective Clients”) states, in pertinent part:

“(a) A person*^{^[3]} who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in the lawyer’s professional capacity, is a prospective client.

(b) Even when no lawyer-client relationship ensues, a lawyer who has communicated with a prospective client shall not use or reveal information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 that the lawyer learned as a result of the consultation, except as rule 1.9^{^[4]} would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received from the prospective client information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 that is material to the matter, except as provided in paragraph (d). If a lawyer is prohibited from representation under this paragraph, no lawyer in a firm* with which that lawyer is associated may knowingly* undertake or continue representation in such a matter, except as provided in paragraph (d) (emphasis added).

(d) When the lawyer has received information that prohibits representation as provided in paragraph (c), representation of the affected client is permissible if: (1) both the affected client and the prospective client have given informed written consent,* or (2) the lawyer who received the information took reasonable* measures to avoid exposure to more information than was reasonably* necessary to determine whether to represent the prospective client; and (i) the prohibited lawyer is timely screened* from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written* notice is promptly given to the prospective client to enable the prospective client to ascertain compliance with the provisions of this rule.

Neither the Bus. & Prof. Code nor the RPC defines a “confidential communication”. The Evidence Code defines “‘confidential communication between client and lawyer’” as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Evid. Code §952.

The Restatement defines “confidential client information” as “information relating to representation of a client, other than information that is generally known.” Restatement (Third) of the Law Governing Lawyers (2000) §59.

“Confidential client information does not include information that is generally known. Such information may be employed by lawyer who possesses it in permissibly representing other clients (see §60, Comments g, h) and in other contexts where there is a specific justification for doing so (compare Comment e). Information might be generally known at the time it is conveyed to the lawyer or might become generally known thereafter. At the same time, the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public.”

“Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known….”

“Confidential client information does not include what a lawyer learns about the law, legal institutions such as courts and administrative agencies, and similar public matters in the course of representing clients. Such information is part of the general fund of information available to the lawyer.” Ibid.

Not all conflicts of interest require disqualification. In some situations, the attorney may still represent the client if the client's consent is obtained. See In re Lee G., (1991) 1 Cal.App.4th 17, 27. Giving effect to a client's consent to a conflicting representation might rest either on the ground of contract freedom or on the related ground of personal autonomy of a client to choose whatever champion the client feels is best suited to vindicate the client's legal entitlements. Zador Corp. v. Kwan, supra, 31 Cal.App.4th at 1295.

The importance of disqualification motions requires careful review of a trial court’s exercise of discretion. In re Complex Asbestos Litigation, (1991) 232 Cal.App.3d 572, MetroGoldwyn-Mayer, Inc. v. Tracinda Corp., (1995) 36 Cal.App.4th 1832, 1838. A court should proceed with care to avoid hardships to innocent clients arising from unnecessary disqualifications. In re Lee G., supra, 1 Cal.App.4^th at 28. Depending on the circumstances, a disqualification motion may involve such considerations as (1) a client's right to chosen counsel, (2) an attorney's interest in representing a client, (3) the financial burden on a client to replace disqualified counsel, and (4) the possibility that tactical abuse underlies the disqualification motion. In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at 586; River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1308-09.

Determining whether a conflict of interest requires disqualification involves more than just the interests of the parties. SpeeDee Oil, supra, 20 Cal.4th 1135, 1145. Where the motion is based on a claimed breach of confidentiality or conflict of interest, the trial court must undertake a cautious balancing of competing interests – the court must weigh the combined effect of a party's right to counsel of choice, an attorney's interest in representing a client, the financial burden on a client of replacing disqualified counsel and any tactical abuse underlying a disqualification proceeding against the fundamental principle that the fair resolution of disputes within our adversary system requires vigorous representation of parties by independent counsel unencumbered by conflicts of interest. In re Marriage of Zimmerman, (1993) 16 Cal.App.4th 556, 562-63.

A motion to disqualify normally should be decided on the basis of declarations and documents submitted by the parties. In Re Complex Asbestos Litigation, supra, 232 Cal.App.3d at 586.

C. Statement of Facts^{^[5]}^{^[6]}

1. Respondents’ Evidence

Hopkins is the City Manager. Hopkins Decl., ¶1. During his previous employment as City Manager of the City of Barstow, Matthew Summers, Esq. (“Summers”), an attorney with the Colantuono firm, was the City Attorney for the City of Barstow. Hopkins Decl., ¶3. Hopkins worked very closely with Summers for approximately three years while he was the City Manager in Barstow. Hopkins Decl., ¶3.

While Hopkins was working in Barstow, he was approached by a recruiter about the City Manager’s position in Compton. Hopkins Decl., ¶4. Among other aspects of the position, he was told that there was friction between City Attorney Perrodin and the City Council and other City officials. Hopkins Decl., ¶4. Hopkins was also told that the City was considering the possibility of amending the City Charter so that, in the future, the City Attorney position would no longer be an elected position but instead would be appointed. Hopkins Decl., ¶4. Therefore, when Hopkins joined the City as City Manager in early January 2024, the issue of a potential Charter amendment to address the problems with Perrodin was already on the table and not something that Hopkins organized. Hopkins Decl., ¶4.

When Hopkins assumed the City Manager position, he was surprised by a number of Perrodin’s practices that Hopkins considered to be questionable. Hopkins Decl., ¶5. Perrodin recommended that the City Council authorize significant payments to persons who had not filed lawsuits or proper claims. Hopkins Decl., ¶5. There was also the almost total absence of any enforcement activity by Perrodin or his staff on issues of building code enforcement, prostitution, and other serious local issues within his scope of responsibility. Hopkins Decl., ¶6. To the extent any prosecutions were initiated, they were handled by outside counsel at hourly rates that were unsustainable by the City for the large volume of violations that needed to be addressed. Hopkins Decl., ¶6. There was an absence of regular written reports to the City Council on claims against the City, which led to the City being required to make large, unanticipated payments for which there was no allocation or reserve in the budget. Hopkins Decl., ¶7. An additional issue was Perrodin’s refusal, from the beginning of April through May 2024, to meet with Hopkins to discuss the proposed budget, which Hopkins, as the City Manager, was responsible for preparing under the Charter. Hopkins Decl., ¶8.

The main source of conflict was Perrodin’s insistence that he had absolute control over what items were placed on the City Council’s agenda and what the matters the City Council could consider during their meetings. Hopkins Decl., ¶9. This assertion also was the primary source of conflict between Perrodin and the City Council when Hopkins accepted the position of City Manager. Hopkins Decl., ¶9. Although Hopkins did not think that a Charter amendment or referendum was necessary, the City Council believed that some such action might be required. Hopkins Decl., ¶9.

Because they had a good working relationship during his tenure as City Manager of Barstow, Hopkins reached out to Summers shortly after he started working at the City for legal advice about how best to deal with the turmoil involving Perrodin. Hopkins Decl., ¶10. Summers was eager to advise Hopkins on how best to handle the ongoing problems with Perrodin. Hopkins Decl., ¶11. Hopkins described all the issues with Perrodin, including the lack of enforcement activity, the lack of regular reporting to the City Council, the general incompetence and poor productivity of the City Attorney’s office, Perrodin’s questionable settlement recommendations to the City Council, personnel issues created by Perrodin’s use of the “N word” directed at staff members, and later Perrodin’s refusal to meet with Hopkins to discuss his department’s budget. Hopkins Decl., ¶11.

The most pressing issue that Hopkins discussed with Summers was what the City Council and Hopkins believed to be Perrodin’s overreach and insistence that he was a “gatekeeper” who had sole authority under the City Charter to determine what matters could be placed on the City Council agenda for consideration by the City Council, thus exercising absolute control over the City’s legislative activity. Hopkins Decl., ¶12.

During these conversations, Summers strongly recommended that the best way for the City to deal with Perrodin’s disruptive behavior was to pursue a strategy of placing a ballot measure amending the City Charter in the November 2024 election. Hopkins Decl., ¶13. Summers proposed a Charter amendment that would change the City Attorney’s position from an elective one to an appointive position. Hopkins Decl., ¶13. The Charter amendment would eliminate the possibility that Perrodin could be reelected to the City Attorney position in the future. Hopkins Decl., ¶13. Hopkins also discussed with Summers the desire to bring in outside legal counsel to be the City Attorney like many surrounding cities have done. Hopkins Decl., ¶14. Summers expressed an interest in the opportunity for the Colantuono firm to represent the City. Hopkins Decl., ¶14.

In addition to their discussions regarding the proposed Charter amendment, Hopkins told Summers that he would like a legal opinion from the Colantuono firm that would clearly explain the limits on the City Attorney’s powers under the City Charter. Hopkins Decl., ¶15. Summers stated that he would and could provide such a legal opinion. Hopkins Decl., ¶15. The discussions between Summers and Hopkins continued by telephone, email, and texts over a period of seven months from January through the end of July 2024. Hopkins Decl., ¶16. During this period, Hopkins relied and acted upon Summers’ legal advice in dealings with members of the City Council and the Mayor. Hopkins Decl., ¶20.

2. Petitioner’s Evidence

Summers is a licensed attorney and shareholder at the Colantuono firm. Summers Decl., ¶1. He is one of the attorneys on record for Petitioner. Summers Decl., ¶1.

Since January 2021, Summers has served as the part-time contract City Attorney for the City of Barstow where Hopkins served as City Manager from September 2021 until January 2024. Summers Decl. ¶2. Since Hopkins left his position with the City of Barstow, Summers had only two conversations with him after January 16, 2024. Summers Decl. ¶3. According to Summers’ cellphone log, those phone calls occurred on April 17 and May 9, 2024. Summers Decl., ¶3.

Other than the phone conversations on April 17 and May 9, 2024, all communication between Summers and Hopkins after January 2024 have been in writing. Summers Decl., ¶5. Those written communications occurred as follows: (1) text messages to and from Hopkins on February 6 and May 2, 2024; (2) a text message from Hopkins on May 9, 2024 and to Hopkins on May 10, 2024; (3) emails to Hopkins on May 13, 2024 and May 28, 2024; (4) text messages to and from Hopkins on May 28, 2024; (5) text messages to and from Hopkins on May 29, 2024; (6) text messages from Hopkins on June 19, 2024; (7) text messages to and from Hopkins on July 25, 2024; and, (8) text messages to and from Hopkins on July 30, 2024. Summers Decl., ¶5.

During the first call with Hopkins on April 17, 2024, Hopkins told Summers that he had disputes with the City’s elected City Attorney Perrodin. Summers Decl., ¶6. Hopkins said he did not feel supported in his role as City Manager. Summers Decl., ¶6. Hopkins wanted to know whether a city charter could be amended to make the city attorney an appointed position. Summers Decl., ¶6. Summers told Hopkins that it was possible to amend a city charter to make the city attorney an appointed position with voter approval and that the Colantuono firm provide the City with legal assistance in that process. Summers Decl., ¶6.

During the second phone call with Hopkins on May 9, 2024, Hopkins asked for a quote for legal services related to the proposed Charter amendment, and Summers told him that he would provide a proposal for legal services. Summers Decl., ¶7.

On May 13, 2024, Summers sent emails to Hopkins with a quote for legal services related to the proposed Charter amendment, also identifying the public hearing process requirements to place the proposed Charter amendment before voters on the November 2024 ballot. Summers Decl., ¶8. The quote related solely to the legal services necessary to place a proposed Charter amendment on the ballot to establish a City Council-appointed City Attorney. Summers Decl., ¶8. Hopkins and Summers did not discuss, and Summers did not propose, defending any litigation. Summers Decl., ¶8.

On May 28 and May 29, 2024, Hopkins told Summers that he had not received the legal services quote sent by Summers on May 13, 2024. Summers Decl., ¶9. Summers emailed them to Hopkins again. Summers Decl., ¶9.

On June 12, 2024, Summers received a letter from Channing Hawkins, Esq. (“Hawkins”), Hopkins’s personal attorney, related to Hopkins’s former employment with the City of Barstow. Summers Decl., ¶10.

On June 19, 2024, Hopkins sent Summers a text message stating that he did not receive the quote and asking for a written legal opinion and for a recommendation for another law firm to provide a second legal opinion on a new matter. He did not specify the nature of these matters. Summers Decl., ¶11. Summers did not respond to the June 19, 2024, text messages and has not communicated with Hopkins concerning the City since late May 2024. Summers Decl., ¶11.

On July 25, 2024, Hopkins sent Summers a text message asking if the City of Barstow would provide him with counsel for a subpoena he had received in a lawsuit filed by a former Barstow employee. Summers Decl., ¶12. On July 30, 2024, Summers responded by text message regarding the Barstow matter. Summers Decl., ¶12.

The proposed Charter amendment appears on the County Registrar’s Measures Appearing on the Ballot. Pet. RJN Ex.F; Thind Decl., ¶4.

The City did not engage the Colantuono firm to provide legal services related to the proposed Charter amendment or for any other purpose. Summers Decl., ¶13. The communications between Summers and Hopkins regarding the City related to the proposed Charter amendment. Summers Decl., ¶14. Summers did not discuss with Hopkins any budget or personnel matters or any disagreement on the interpretation of the City’s existing Charter provisions or agenda management processes. Summers Decl., ¶14.

On August 29, 2024, Petitioner retained the Colantuono firm as his counsel in this case. McAleer Decl., ¶2. That morning, Matthew W. McAleer, Esq. (“McAleer”), and attorney at the Colantuono firm, called Christy Garcia, Esq. (“Garcia”), Respondents’ counsel, to notify her of the Colantuono firm’s retention and to request a two-week extension of the hearing of Respondents’ demurrer. McAleer Decl., ¶3. Garcia stated the Colantuono firm would need to appear before she would answer that request. McAleer Decl., ¶3. On September 3, 2024, McAleer caused to be filed a Notice of Association of Counsel, associating the Colantuono firm as Petitioner’s co-counsel. McAleer Decl., ¶4.

3. Reply Evidence

Summers and Hopkins kept up a continuous stream of communications from early January through July 2024. Hopkins Reply Decl., ¶9. During the six-month period from February 6 through July 30, 2024, Summers and Hopkins exchanged no fewer than 22 text messages, two emails and one letter. Hopkins Reply Decl., ¶10.

a. January 16, 2024 Conversations

Hopkins contacted Summers, on January 16, 2024, to get his legal advice how the City might address the problems with Perrodin and how they could go about amending the City Charter with regard to the City Attorney’s position. Hopkins Reply Decl., ¶12. On that date, Hopkins and Summers had four telephone calls, at 2:49 p.m., 4:11 p.m., 4:53 p.m., and 9:53 p.m. Hopkins Reply Decl., ¶12.

During those January 16, 2024 telephone conversations, Hopkins described in detail the issues and ongoing conflicts the City Council and he had regarding Perrodin and the City Attorney’s Office. Hopkins Reply Decl., ¶12. Summers assured Hopkins that he had ideas about how to address the issues described, including amendment of the City Charter to return the City Attorney’s position from an elective position to an appointive position, as it had been before March 2023. Hopkins Reply Decl., ¶12.

Hopkins and Summers again exchanged phone calls on February 6, 2024. Hopkins Reply Decl., ¶13.

b. April 17, 2024 Conversation

Hopkins and Summers spoke again on April 17, 2024. Hopkins Reply Decl., ¶15. By that time, the City was very actively engaged in planning the budget for the 2024-2025 Fiscal Year. Hopkins Reply Decl., ¶15. As City Manager, Hopkins was responsible for the preparation and submission of the proposed budget to the City Council not later than the latter part of May because the Fiscal Year begins on June 1. Hopkins Reply Decl., ¶15.

By April 17, Hopkins was having difficulty in securing Perrodin’s agreement to meet with him to obtain his budget proposal for the City Attorney’s Office. Hopkins Reply Decl., ¶16. Hopkins specifically told Summers on April 17 that he felt Perrodin’s refusal to cooperate with him in the budget planning process was impeding his responsibility to develop the proposed budget. Hopkins Reply Decl., ¶16. Hopkins sought Summers’s legal advice how to handle this issue during the April 17, 2024 telephone conversation. Hopkins Reply Decl., ¶16.

c. Charter Amendment

The only aspect of the City Charter that the City has considered changing during Hopkins’ tenure as City Manager is the provision that the City Attorney’s position is an elected position. Hopkins Reply Decl., ¶17. There is a measure now on the November 2024 ballot that would amend the City Charter to make the City Attorney position an appointed position. Hopkins Reply Decl., ¶17, Ex. 2. The City Council resolution for this amendment was passed on July 23, 2024, on a 3-2 vote. Hopkins Reply Decl., ¶17.

Hopkins had a concern that if the ballot measure were to fail at the ballot box, the City would then be stuck with an elected City Attorney indefinitely. Hopkins Reply Decl., ¶18. Hopkins could not reach Arnold Alvarez-Glasman, Esq., who had been retained to represent the City officials being sued in this action, so he called Summers on July 25, 2024 to discuss this concern. Hopkins Reply Decl., ¶18. Summers assured Hopkins that his concerns were unfounded. Hopkins Reply Decl., ¶18.

On September 6, 2024, Perrodin wrote to both California Attorney General Rob Bonta and the California State Auditor's Office, claiming that the City Council adopted its resolution illegally, that the measure was placed on the ballot illegally, and that Councilmember Duhart was illegally appointed to the City Council. Hopkins Reply Decl. ¶19, Exs. 3-4.

Over the course of seven months, Summers assured Hopkins that his interpretation of the limitations on the City Attorney's power under the City Charter was legally correct and that Perrodin's position was incorrect, that Perrodin did not have the power to dictate the contents of the City Council's agenda, that Hopkins was obligated under the Charter to prepare and present a proposed budget to the City Council, and that Perrodin's refusal to cooperate with Hopkins in that effort was legally improper. Hopkins Reply Decl., ¶20.

During the course of their communications, Hopkins confided in Summers by sharing the positions, attitudes, and apprehensions of various City Officials and City staff members in response to Perrodin's repeated threats to sue those he claimed were engaged in wrongdoing in connection with the authority of the City Attorney's Office and the budget. Hopkins Reply Decl., ¶21.

D. Analysis

Respondents move for an order disqualifying Petitioner’s co-counsel, the Colantuono firm, from representing him because it has a conflict of interest. Respondents contend that the Colantuono firm carried on extended confidential communications with City Manager Hopkins over the very issues at the heart of this litigation and ultimately was not retained to represent the City or any City officials. Now the Colantuono firm purports to act as co-counsel in suing those same City officials. Mot. at 4.

City Manager Hopkins’ highly sensitive, confidential communications with Summers, who is a shareholder in the Colantuono law firm, continued for at least seven months from January through the end of July 2024. Hopkins Decl., ¶6, Ex. 1. Those discussions dealt expressly with the City’s ongoing problems with City Attorney Perrodin, potential solutions to the disruptions caused by Perrodin’s overreaching, and the desire of a number of the City Councilmembers to explore amending the City Charter to change the City Attorney position from an elected position to an appointive position as a way to end the conflict in the future. Ibid. Not only were there discussions about how to deal with the troublesome City Attorney, but City Manager Hopkins was actively implementing Summers’ suggested strategy of amending the City Charter. Ibid. Respondents argue that it is hard to imagine a clearer violation of RPC Rule 1.18, RPC Rule 1.6, and Bus. & Prof. Code section 6068(e). Mot. at 5-6.^{^[7]}

Perrodin responds that RPC Rule 1.18 requires disqualification only if (1) the City Council or its members were a prospective client of the Colantuono firm, (2) the Colantuono firm received confidential information from the City Council, and (3) that confidential information is significantly harmful to them in this case. Perrodin does not dispute that the City, and perhaps its City Council, were a prospective client of the Colantuono firm, but argues that Respondents establish neither confidentiality nor significant harm. Opp. at 13.

In Syre v. Douglas, (“Syre”) (2024) 104 Cal.App.5^th 280, 324 Cal.Rptr.3d 553, the appellate court held that the trial court properly denied plaintiff’s motion to disqualify defense counsel in a quiet title action. The plaintiff had one phone call with “an intake advocate, a person who is not an attorney, and whose primary duties include answering the telephone. … Intake advocates are trained to inform prospective clients that their case cannot be accepted unless and until their issue has been discussed at a "Case Acceptance Meeting." … Id. at 7.^{^[8]} [T]he [legal aid firm’s] case management system and its email system had no record of any contact by plaintiff, and no current attorney at [the firm] had any recollection of speaking with plaintiff. Id. at 8. The absence of client intake information in the case management system indicated that the process had not been completed because the person was ineligible for services from [the legal aid firm].” Ibid.

No lawyer in the firm had any recollection of plaintiff’s name or phone call. Id. at 9. The intake advocate had emailed the legal aid firm attorney regarding the conversation with plaintiff, which was to determine she met the financial criteria for representation by the firm and if the property at issue was in the county where the legal aid firm was located. Id. at 9-10. The lawyer advised the intake advocate to inform the plaintiff that she was not eligible for the firm’s services. Id. at 11. The legal aid firm never agreed to represent the plaintiff and later became counsel to the defendant. Id. at 558.

In evaluating the rules of attorney disqualification for possessing confidential information of a prospective client, the Syre court noted that RPC Rule 1.1 modifies the rules of professional conduct to provide protections against the use of confidential information obtained by an attorney in the course of an initial consultation. Id. at 14. “There is a paucity of decisional law interpreting [RPC] rule 1.18, but the obvious thrust of the rule is to protect information provided by a prospective client against disclosure to third parties or being made public.” Id. at 15. The primary difference between the rules concerning a former client and a prospective client is that representation is not barred by RPC Rule 1.18 unless the attorney obtained information from the prospective client that could be significantly harmful to that person in the matter. Id. at 16 (citation omitted).

The court concluded that RPC Rule 1.18 requires the party moving for disqualification to establish that (a) he or she is a prospective client, (b) who communicated confidential information to an attorney, and (c) the confidential information was either made public or disclosed to a third party. Id. at 16.

The court stated that “[t]here are no cases, statutes, or rules defining the type of communication between a prospective client and an attorney that could be considered confidential when the information acquired in the communication is geared at deciding whether to form the attorney-client relationship at all.” Id. at 18. While the plaintiff qualified as a prospective client, there was no reasonable prospect that the legal aid was willing to discuss forming a lawyer-client relationship until she met its eligibility criteria for representation, including financial information. Id. There was no evidence that her financial information was communicated to a third party or made public by the firm. Id. at 20. The remaining information the plaintiff had provided to the firm concerned the nature of the dispute and her contention that the defendant exerted undue influence on a deceased person, but these “were matters of public record” and “could not be viewed as confidential where it related to the theory of recovery she intended to pursue, and which would have been disclosed in the pleadings.” Id. at 20-21.

“We cannot consider communication of the nature of plaintiff’s anticipated action against defendant to be confidential information where plaintiff was seeking representation in anticipation of filing a lawsuit based on that information in court. Plaintiff’s cause of action alleges that any transfer of the title to the property in question is “void ab initio” without referring to any deed in favor of defendant, while also alleging that defendant is an ex-felon whose testimony in court would be subject to impeachment. It does not require prescience to predict that the basis of these allegations would be explored in discovery in this litigation. Plaintiff cannot reasonably assert that the preliminary information about the “issue” in the case was a confidential communication.” Id. at 21.^{^[9]}

Perrodin notes (Opp. at 14-15) that, unlike cases dealing with former representation of a client, a preliminary consultation that does not result in the attorney’s retention justifies disqualification only if there is a showing that it “resulted in disclosure of confidential information or that it would be reasonable to infer such disclosure.” Med-Trans Corp., Inc. v. City of California City, (“Med-Trans”) (2007) 156 Cal.App.4th 655, 667-68. Unless the attorney is retained, there is no presumption that he obtained the prospective client’s confidential information. Id. at 668.

Perrodin argues that there is no dispute that Summers and Hopkins discussed the possibility of amending the City Charter, including potential language and amendment procedure. There also is no dispute that the Colantuono firm was not retained by the City. He argues that the information they exchanged about the City Attorney, Charter amendment process, and related issues was not confidential because the City disclosed it before Hopkins first contacted Summers, and certainly before Perrodin retained the Colantuono firm. Opp. at 13. The public nature of these disputes and the City Council’s action to place the Charter amendment on the November ballot demonstrate as much. Opp. at 15.

While Respondents argue that the topic of the City Charter amendment process was confidential, the City heard two public agenda reports describing that process before the City Attorney retained the Colantuono firm. The measure itself has been public at least since the posting of the agenda for the July 23, 2024 City Council meeting at which the Council voted 3-2 to place in on the ballot. The City Charter amendment process detailed by statutes and constitutional provisions equally accessible to competent public lawyers required a noticed public meeting of the City Council and an election. This can hardly be viewed as confidential. See Med-Trans, supra, 156 Cal.App.4th at 668–69 (no confidential information shared because, whether or not generally known, there was no reason to infer that City’s objective to hire an ambulance company and seek a permit would be considered a confidential matter). Further, Hopkins acknowledges that the idea of amending the City Charter was “already on the table” and discussed among City Councilmembers before he arrived at the City in January 2024. Opp. at 16.

Similarly, Respondents argue that “disruptions” and “problems” cause by the City Attorney were confidential, but the City Attorney had been publicly sparring with the City Council and the City Manager over the budget, the Sheriff’s contract, and related issues since June 2023.^{^[10]} The budget dispute disrupted the June 18, 2024 meeting. Then, on June 25, 2024, Petitioner filed the instant Petition, noting additional details about the dispute. Thus, the City Manager-Attorney conflict which animates this case is hardly a secret. Cf. Syre, supra, 324 Cal.Rptr.3d at 21 (“It does not require prescience to predict that the basis of these allegations would be explored in discovery in this litigation”). Opp. at 16.

Hopkins argues that he and Summers discussed the City Attorney’s overreach concerning the control of City Council agendas. Hopkins Decl., ¶12. Summers does not recall discussion of this topic, nor that he was ever asked to analyze the provisions of the City Charter and CMC governing it. Cf. In re Marriage of Zimmerman, supra, 16 Cal.App.4th at 564 (“While Gack may have offered appellant his initial impressions of the case, he obviously was not called upon to formulate a legal strategy and, by the very limited nature of his contact with appellant, could not have gained detailed knowledge of the pertinent facts and legal principles”). Opp. at 17.

Perrodin argues that the text messages provided by Hopkins suggest otherwise. The agenda setting and budget disputes were cause for public sparring between Petitioner and the City Manager at the June 18, 2024 City Council meeting. The next day, despite not having communicated with Summers for weeks, Hopkins texted Summer and asked if he could “recommend an additional firm to provide a second legal opinion on a new matter?” Hopkins Decl., Ex. 1. It is almost certain that the “new matter” was the issue of agenda control raised by Petitioner the night before. Summers never responded to that text and did no research on the issue. See In re Marriage of Zimmerman, supra, 16 Cal.App.4th at 565 (no disqualification when attorney “performed no work for appellant … the record before us shows the most minimal involvement by [the attorney] in the case”). Finally, the issue was no longer confidential after the June 18 and June 25, 2024 City Council meetings and the June 25, 2024 date the Petition was filed in this case. In short, Respondent’s motion identifies no confidential information of the City or City Council which the Colantuono firm might use to their detriment. Opp. at 17.

Respondents reply that these arguments miss the point. The issue is not whether a dispute is highly publicized or the arguments hotly debated. It is the communications between an attorney and his client, or prospective client, that must be kept confidential. “Protecting the confidentiality of communications between attorney and client is fundamental to our legal system.” Speedee Oil, supra, 20 Cal.4th at 1146. Just because there have been heated arguments in City Council meetings and various bloggers have reported on those arguments does not mean that the Respondents have forfeited their right to insist that the attorney with whom they consulted maintain their confidences, as set out in RPC Rule 1.18, or that Summers is released from his duty of confidentiality under RPC Rule 1.18 and Bus. & Prof. Code section 6068(e). Reply at 7.

Respondents conclude that, over the course of seven months of communications with Hopkins, it is indisputable that Summers received confidential client information about the legal approaches the City officials were considering in response to Perrodin’s threats to sue over any attempt to curb his power, the anxieties those threats caused some City officials and City staff, the concerns some harbored about seeking to amend the City Charter, concerns about the legality of outsourcing some of the City’s legal work. Hopkins Reply Decl., ¶¶ 12-18, 20- 21. Reply at 8.

Respondents argue that the factors set forth in Speedee Oil lean heavily toward granting their motion. First, there will be no deprivation of Petitioner’s counsel of choice if the motion is granted. Perrodin remains free to select an unconflicted firm of his own choosing. Second, although Petitioner’s co-counsel may be interested in representing Perrodin, the ethical implications of this representation far outweigh the firm’s interest in this case. Third, the financial burden on Petitioner to replace his co-counsel is minimal as the Colantuono firm only associated into the case a month ago. Finally, there is no tactical abuse underlying the motion. Respondents’ counsel alerted Petitioner’s co-counsel of the conflict about one hour after being served with the Notice of Association of Counsel. Reply at 10.

It is obvious that the discussions between Summers and Hopkins regarding the possibility of amending the City Charter, including potential language and procedure, were not a confidential communication. The City Council’s contemplation of this issue was public knowledge and the procedure for a remedy of a Charter amendment was readily available. Similarly, the disruptions and problems caused by the City Attorney that motivated this remedy were not confidential. The City Attorney had been publicly sparring with the City Council and the City Manager over the budget, the Sheriff’s contract, and related issues for some time.

This leaves the issue of Petitioner’s alleged overreach concerning City Council agendas. Hopkins declares that this was the most pressing issue that he discussed with Summers, and that they discussed his insistence that he is the gatekeeper with sole authority under the City Charter to determine what can be on City Council agendas. Hopkins Decl., ¶12. According to Petitioner’s opposition, Summers does not recall discussion of this topic, nor that he was ever asked to analyze the provisions of the City Charter and CMC governing it. The court concludes that, assuming they did discuss it, Petitioner’s position that he controls City Council agendas was public knowledge. The only difference from the other public information is that it is the subject of Petitioner’s lawsuit.^{^[11]}

The numerous contacts between Hopkins and Summers also are indicative of a general business relationship, not the transmission of confidential communications. The Colantuono firm was certainly willing to be retained and the fact that Hopkins did not follow through indicates that the need to retain the firm was not ripe. The City’s failure to retain the Colantuono firm is modest and indirect support for the conclusion that no confidential information was revealed.

Respondents argue that Summers is not credible and has suppressed four phone calls on January 16, 2024. It is inconceivable that Hopkins could have up to 22 texts, two emails, and 10-12 phone calls with Summers without revealing confidential information. Reply at 3-4, 8.

The answer is that is the difference between attorney-client communications and an attorney’s communications with a prospective client. Unlike attorney-client communications, the information communicated to an attorney by a prospective client itself must be confidential under RPC Rule 1.18 and Syre. No third party would be surprised, and knowledgeable persons would readily know, everything that Hopkins told Summers on these issues. As such, they are generally known and not confidential communications. See Restatement (Third) of the Law Governing Lawyers (2000) §59; Syre supra, at 16.

As Perrodin argues (Opp. at 17), the significant harm requirement in Sykes is simply a materiality requirement. The parties disagree on the number of phone calls and texts between Hopkins and Summers. Assuming that Respondents are correct in their view on the number of contacts, they do not address how any information that Summers acquired could be significantly harmful in this lawsuit. The discussions between Summers and Hopkins focused on a Charter amendment as a remedy, which has little bearing on the dispute at issue regarding the current language of the City Charter.

Hopkins details discussions regarding improper acts by the City Attorney – including Perrodin’s insistence that he controls the City Council agenda -- but there is no showing that disclosure of these discussions could be significantly harmful. This case involves interpretation of the City Charter, and any alleged misconduct by Petitioner does not bear on that interpretation. The allegations of misconduct were disclosed at City Council meetings and in Hopkins’s July 16, 2024 declaration filed in opposition to Petitioner’s ex parte application. As Petitioner points out, Hopkins devoted more than 40 paragraphs to his fraught relationship with Petitioner, their disputes, and their public disagreements. Opp. at 17. All this happened before the Colantuono firm was retained by Petitioner.

The court will not disqualify Perrodin’s chosen counsel where Respondents have not met the requirements of RPC Rule 1.18 concerning duties to a prospective client. The motion is denied.

^{^[1]} Moving Parties’ 11-page reply violates the ten-page limit of CRC 3.1113(d). For their part, Petitioners lodged a courtesy copy of their opposition and supporting papers on two-sided paper in violation of 2.102. Counsel for both sides are admonished that the court will refuse to consider any future papers in this case that violate these rules.

^{^[2]} These Respondents are no longer named in the SAC. The named Respondents are the City Council and Willie A. Hopkins, Jr. (“Hopkins”).

^{^[3]} The asterisks are contained in the original rule and indicate that the word or phrase is defined elsewhere.

^{^[4]} PRC Rule 1.9 (Duties to Former Client) states in subdivision (a): “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person* in the same or a substantially related matter in which that person’s* interests are materially adverse to the interests of the former client unless the former client gives informed written consent.*”

^{^[5]} Petitioner asks the court to judicially notice (1) staff reports for the City Council’s March 28,2023 and July 23, 2024 meetings (Exs. A, B), (2) the agendas for the City Council’s June 18 and July 23, 2024 meetings (Exs. C, D), Compton Municipal Code (“CMC”) section 2-1.9 (Ex. E), (3) a Los Angeles County (“County”) Registrar document entitled “Measures Appearing on the Ballot” (Ex. F), (4) video of the June 6, June 18, and June 25 City Council meetings (Exs. G-I).

The requests for Exhibits C-F are granted. Evid. Code §452(b), (c). The staff reports are not official acts of the City unless they are part of the legislative history for a City Council action. See Evans v. City of Berkeley, (2006) 38 Cal.4th 1, 7, n.2. Neither are the videos. The requests are denied for Exhibits A, B, and G-I.

^{^[6]} The court has ruled on the parties’ written evidentiary objections. The clerk is directed to scan and electronically file the court’s rulings.

^{^[7]} Respondents do not argue that the City or City Manager had an attorney-client relationship with the Colantuono law firm because Summers obtained confidential information and gave legal advice. See SpeeDee Oil, supra, 20 Cal.4^th at 1148.

^{^[8]} As it is not yet in the advance sheets, the court’s citations are to an online printout of the case.

^{^[9]} The court also discussed the interests specific to legal aid law offices. Id. at 22-25.

^{^[10]} Petitioner’s evidence on this point is inadmissible but appears to be undisputed.

^{^[11]} The court need not decide whether other issues such as the poor productivity of the City Attorney’s office and personnel issues created by Perrodin’s use of the “N word” directed at staff members were confidential information. See Hopkins Decl., ¶11.