TENTATIVE RULING

Defendant Michael Hakim and Plaintiff/Cross-Defendant Papillones, LLC’s Motion to Disqualify Allen Matkins Leck Gamble Mallory & Natsis LLP is DENIED.

Defendant Michael Hakim and Plaintiff/Cross-Defendant Papillones, LLC to give notice. 

REASONING

Request for Judicial Notice

Defendant Michael Hakim (“Michael”) and Plaintiff/Cross-Defendant Papillones, LLC (“Papillones”) request judicial notice of the declaration of Alaian R’bibo, filed in support of Plaintiff Julia Hakim (“Julia”)’s opposition to this same motion on August 18, 2023. Michael’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Analysis

Defendant Michael Hakim and Plaintiff/Cross-Defendant Papillones, LLC move the Court for an order disqualifying Defendant Julia Hakim and Defendant/Cross-Complainant Said Hakim (“Said”)’s counsel Allen Matkins Leck Gamble Mallory & Natsis LLP (“Allen Matkins”) from representing Julia and Said in this action on the ground that Julia and Said’s counsel has a conflict of interest due to Allen Matkins’ prior attorney-client relationship with Michael, and the firm has highly confidential and sensitive information directly related to the pending litigation.

Code of Civil Procedure section 128, subdivision (a)(5), provides the Court with the power “[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.” That power necessarily includes disqualifying an attorney. (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1837-1838.) “The issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.” (Id. at p. 1838.) However, “[t]he paramount concern . . . must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar,” and “[t]he recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process.” (Ibid., emphasis omitted.) “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.” (Ibid.)

Rule 1.9(a) of the Rules of Professional Conduct (asterisks omitted) states that “[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.” “A former client may seek to disqualify a former attorney from representing an adverse party by showing the former attorney actually possesses confidential information adverse to the former client,” but “it is well settled actual possession of confidential information need not be proved in order to disqualify the former attorney.” (H. F. Ahmanson & Co v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1452.) Rather, “[i]t is enough to show a ‘substantial relationship’ between the former and current representation. If the former client can establish the existence of a substantial relationship between representations the courts will conclusively presume the attorney possesses confidential information adverse to the former client.” (Ibid., citation omitted.)

To show a “substantial relationship” exists between the prior representation and the current representation, Michael must present evidence that “supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 713.)

Perhaps most notably, Michael argues and represents there was an attorney-client relationship between him and Allen Matkins (Mot., Michael Hakim Decl. ¶ 2), but he states in his declaration that “the firm was not formally retained to pursue these matters following my detailed disclosure of what was involved” (Mot., Michael Hakim Decl. ¶ 11). Michael’s motion rests upon his belief there was an attorney-client relationship, but a belief does not make it so, particularly when he concedes the firm was never retained. Thus, any case law and professional conduct rules governing attorney-client relationships is rendered inapplicable where no such relationship actually existed.

An attorney represents a client “when the attorney knowingly obtains material confidential information from the client and renders legal advice or services as a result.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1148.) The attorney-client relationship begins “when attorney-client discussions proceed beyond initial or peripheral contacts.” (Ibid.) It is undisputed that Michael communicated and met with Allen Matkins; however, Allen Matkins never rendered any legal advice or services to Michael, Michael did not pay Allen Matkins for any advice or services, no file was opened with Allen Matkins, Allen Matkins did not agree to represent Michael, and Michael never executed an engagement letter with Allen Matkins. (Opp’n, R’bibo Decl. ¶¶ 3, 5, 8; Perry Decl. ¶¶ 3-5.) Thus, there is no basis to conclude that an attorney-client relationship existed between Michael and Allen Matkins.

Alternatively, Rule 1.18 of the Rules of Professional Conduct governs attorneys’ duties to prospective clients. Rule 1.18(b) of the Rules of Professional Conduct provides that even when no attorney-client relationship exists, “a lawyer who has communicated with a prospective client shall not use or reveal [protected] information . . . that the lawyer learned as a result of the consultation,” and rules 1.18(c) and 1.18(d) of the Rules of Professional Conduct provide that such a lawyer “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 [protected information] from the prospective client information . . . that is material to the matter,” and “[i]f 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” without screening and notice to the prospective client.

The present matter concerns an ownership dispute as to a parcel of property at 27841 Pacific Coast Highway in Malibu. Michael provides no evidence that he spoke to Allen Matkins about this property, stating only that he discussed “the nature of the problems that existed with my family members” and “disagreements relating to the family’s property holdings” (Mot., Michael Hakim Decl. ¶ 9), and attorneys from Allen Matkins state they do not recall discussing the property with Michael (Opp’n, R’bibo Decl. ¶ 7; Perry Decl. ¶ 7). The Court is not inclined to disqualify a party’s chosen counsel where the moving party seeking disqualification provides no evidence that counsel received any confidential information about the subject matter of the present action. Put simply, Michael has failed to make a showing that Allen Matkins obtained any confidential information in the past that will be at issue in this action. Accordingly, Defendant Michael Hakim and Plaintiff/Cross-Defendant Papillones, LLC’s Motion to Disqualify Allen Matkins Leck Gamble Mallory & Natsis LLP is DENIED.