Judge: Michael C. Kelley, Case: 21AVCV00577, Date: 2022-09-27 Tentative Ruling

Case Number: 21AVCV00577    Hearing Date: September 27, 2022    Dept: A15

Background

Leo D. Skeen (“Leo”) filed this quiet title action on July 16, 2021, against Defendants Chadwick Skeen and Penilope Pearl Jacobs (collectively, “Defendants”) regarding the real property located at 44648 Rosario Avenue, in the city of Lancaster (the “Property”). After Leo passed away on October 5, 2021, his daughter and successor-in-interest, Vanisa Alicia Bennett (“Plaintiff”), substituted into this action as plaintiff.

Plaintiff alleges that, on October 18, 2010, Leo purchased and became the sole owner of the Property. (First Am. Compl. ¶ 13.) She alleges that Leo permitted his younger brother, Defendant Skeen, and his brother’s wife, Defendant Jacobs, to live at the Property. (Ibid.)

Plaintiff alleges that, on April 20, 2021, Defendant Skeen used a fake identification card to pretend he was Leo, and used it to transfer the Property from Leo to Defendant Jacobs without Leo’s knowledge. (First Am. Compl. ¶ 16.) Defendants executed the grant deed on April 20, 2021, and recorded it with the Los Angeles County Recorder’s Office on April 23, 2021. (Id., ¶ 20.)

Plaintiff filed the operative First Amended Complaint on February 24, 2022. After Defendants’ Demurrer to the First Amended Complaint was sustained in part, the remaining causes of action are for (2) declaratory relief, (3) quiet title, (4) financial elder abuse, and (5) slander of title. (Min. Ord., dated Jun. 28, 2022.)

After receiving the Court’s leave, Defendant Skeen filed a cross-complaint against Plaintiff, as well as Leo and Leo’s estate and successors for (1) quiet title, (2) adverse possession, (3) conversion, and (4) unjust enrichment. (Min. Ord., dated Sept. 15, 2022.)

Defendant Skeen timely filed and served the instant Motion to Disqualify Counsel on August 31, 2022. Plaintiff filed a timely opposition, and Defendant Skeen filed a timely reply.

Analysis

Motion to Disqualify Counsel—Pursuant to rule 1.9 of the Rules of Professional Conduct:

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.

(Rules Prof. Conduct, rule 1.9(a).)

The policy behind this rule is to not only “protect the adverse party's confidences,” but to uphold “the attorney's ethical duty to maintain the integrity of the judicial process[.]” (O'Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1126.) The court must balance several considerations, including “a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) Courts have noted that motions to disqualify “are commonly used for purely strategic purposes to delay the litigation, harass the opposing party or pressure for a more favorable settlement.” (H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1454.)

The precedent also anticipates “some overinclusion as a necessary byproduct of the paramount solicitude for the maintenance of the public's trust in the fairness of the justice system and in the integrity of the bar manifested by the rule of necessity.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 714.)

The courts utilize a two-step test for ruling on a disqualification motion involving former representation:

[T]he trial court must first identify where the attorney's former representation placed the attorney with respect to the prior client. If the court determines that the placement was direct and personal . . . the only remaining question is whether there is a connection between the two successive representations.

(Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at 710–711.)

Here, Defendant Skeen moves to disqualify Plaintiff’s attorney, Ulric E. J. Usher, and, through imputed disqualification, his law firm, the Law Offices of Ulric E. J. Usher, on the ground that Mr. Usher formerly represented him in a matter through which Mr. Usher acquired confidential information that he is now using against Defendants. Mr. Usher argues there are no grounds for disqualification because his “short-term representations” of Defendant Skeen are not substantially related to this property dispute.

Former Representation

The question of whether there was a “former representation” is:

not necessarily answered by the amount of time involved . . . Consequently, a formal retainer agreement is not required before attorneys acquire fiduciary obligations of loyalty and confidentiality, which begin when attorney-client discussions proceed beyond initial or peripheral contacts. An attorney represents a client—for purposes of a conflict of interest analysis—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., supra, 20 Cal.4th at 1148.)

Upon finding there was direct representation,

that is, where the lawyer was personally involved in providing legal advice and services to the former client—then it must be presumed that confidential information has passed to the attorney . . . This is so because a direct attorney-client relationship is inherently one during which confidential information “would normally have been imparted to the attorney by virtue of the nature of [that sort of] former representation,” and therefore it will be conclusively presumed that the attorney acquired confidential information relevant to the current representation if it is congruent with the former representation.

(Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at 709, quoting H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1454.)

According to Defendant Skeen, Mr. Usher has represented him in two matters: in 2005, Mr. Usher drafted a potential prenuptial agreement for Defendant Skeen and a person who is not a party to this case; and in 2001 (according to Mr. Usher, as Defendant Skeen does not provide a date for this representation), Mr. Usher represented Defendant Skeen in a traffic case. (Defs. Decl. Chadwick Supp. Mot. Disqualify Counsel ¶ 2; Pl. Opp’n Disqualify Counsel at Decl. Usher ¶¶ 5-6.)

The first subtest does not require further inquiry. Mr. Usher clearly provided direct representation to Defendant Skeen in the aforementioned matters. That those representations ended two decades ago, and whether Defendant Skeen signed retainer agreements, are irrelevant. In drafting a prenuptial agreement and appearing on Defendant Skeen’s behalf in court, Mr. Usher personally provided legal services. Therefore, a “former representation” existed sufficient to satisfy this first subtest.

Substantially Related Matter

After finding there was “former representation,” disqualification next depends on “the strength of the similarities between the legal problem involved in the former representation and the legal problem involved in the current representation.” (Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at 709.) In other words, the moving party must also show that the former representation was on a matter that was “substantially related” to the current one. “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.” (H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1452.)

“Two matters are ‘the same or substantially related’ for purposes of this rule if they involve a substantial risk of a violation of one of the two duties to a former client described above in Comment [1].” (Rules Prof. Conduct, rule 1.9(a), com. 3.) These duties are: “The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against the former client knowledge or information acquired by virtue of the previous relationship.” (Rules Prof. Conduct, rule 1.9(a), com. 1.)

The courts determine whether two matters are “substantially related” by focusing on the “nature of the former representation,” and asking “whether confidential information material to the current dispute would normally have been imparted to the attorney by virtue of the nature of the former representation.” (H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1454.) This approach is “pragmatic,” as it differentiates between “‘lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery for a limited and specific purpose relating solely to legal questions.’” (Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at 708; H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1457, quoting Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corp. (2d Cir. 1975) 518 F.2d 751, 756.)

To determine whether confidential, material information would have been imparted without delving into the actual attorney-client communications, the court should examine “‘the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney's involvement with the cases.’” (H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1455, quoting Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corp., supra, 518 F.2d at 760.) To evaluate the nature and extent of an attorney’s involvement, the court may examine factors such as “the time spent by the attorney on the earlier case, the type of work performed, and the attorney's possible exposure to formulation of policy or strategy.” (H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1457.)

For example, in H. F. Ahmanson & Co. v. Salomon Brothers, Inc., supra, 229 Cal.App.3d at 1455, the Court of Appeal found that two matters were not “substantially related” because they had no factual similarities or legal similarities, and the first representation was brief, limited, and specific. The representations did not have factual similarities because the first representation involved advice that was “strictly limited to credit protection strategies,” while the subsequent representation was related to “interest rate protection”—two subjects that, while both under the general umbrella of “credit risk protection,” required the advice be based on different facts. The representations did not have legal similarities because they posed different legal questions: how to structure repurchase agreement transactions to protect from potential fraud or insolvency on the part of the institution on the other side of the transaction, compared to the question of whether the client had breached its fiduciary duty. Finally, the limited nature of the first representation led to the reasonable conclusion that the challenged attorney would not have been “privy to any client confidences” relevant to the current matter. (Id., 1458.) Thus, the Court of Appeal concluded that the matters were not substantially related, and therefore did not require disqualification.

But courts must beware that

limiting the comparison of the two representations to their precise legal and factual issues might operate unrealistically to the detriment of the first client. Depending upon the nature of the attorney's relationship with the former client, in the office or in the courtroom, the attorney may acquire confidential information about the client or the client's affairs which may not be directly related to the transaction or lawsuit at hand but which the attorney comes to know in providing the representation to the former client with respect to the previous lawsuit or transaction. For example, whether a lawsuit is settled or contested may depend upon a myriad of considerations about the client's affairs which might not be subject to discovery but which nonetheless determine the client's course of action, such as a decision to settle an action or a particular claim or issue because of the potential for unrelated adverse ramifications to the client were the case to go to trial.

(Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at 712.)

Here, while the Court finds that confidential information material to the current dispute would not have been imparted to Mr. Usher by virtue of the nature of the former representation, Defendant Skeen has submitted sufficient evidence that material information was imparted nonetheless.

Defendant Skeen argues that, in the course of their attorney-client relationship, he gave Mr. Usher information regarding his “personal life, financial situation, and relationship with his brother,” Leo, as well as information about his immigration status. (Defs. Mot. Disqualify Counsel at 4; Defs. Decl. Chadwick Supp. Mot. Disqualify Counsel ¶ 3.) In general, the Court does not doubt that Defendant Skeen divulged information about his “personal life,” “financial situation,” and immigration status to Mr. Usher, in the course of obtaining advice about family law and traffic matters. But the Court also notes that these vague terms encompass a wide breadth of information. Providing information that falls under the large umbrella of these topics does not necessarily implicate information material to the instant matter.

The Court also notes that, in general, there are no factual or legal similarities between the former representations and the instant litigation. The parties agree that these former representations were limited to the discrete issues of a prenuptial agreement and a single traffic infraction. In addition to the factual impossibility of Defendant Skeen having divulged information about the specific Property to Mr. Usher in 2001 or 2005, these former representations posed different legal questions than the current matter. The prenuptial agreement likely encompassed issues of Defendant Skeen’s financial assets; and while the issue in the instant case is whether the Property is Leo’s or Defendant Skeen’s asset, that query could not have existed in 2005, before the Property was purchased. The traffic case would have involved a specific event, and prior traffic convictions (if any).

As for the nature and extent of Mr. Usher’s involvement with the cases, they too suggest that no material information was imparted. Again, Mr. Usher’s representations were limited to self-contained legal issues unrelated to the issue of title to the Property. Theirs was not the kind of ongoing attorney-client relationship where Defendant Skeen would have a continued need for Mr. Usher’s advice. The matters had a clear endpoint: the drafting of the prenuptial agreement and the conviction or settlement of the traffic infraction.

However, Defendant Skeen attests that he disclosed two “agreements” between himself and Leo that implicate the current lawsuit: the first agreement was made in 2005, was related to his financial obligations and property interest, and was disclosed when Mr. Usher drafted Defendant Skeen’s prenuptial agreement. (Defs. Reply Mot. Disqualify Counsel at Decl. Skeen ¶ 1.) The second agreement was made in 2010, was related to the Property, and was disclosed to Mr. Usher in June 2021 because Defendant Skeen allegedly did not know Mr. Usher was representing Leo. (Defs. Decl. Chadwick Supp. Mot. Disqualify Counsel ¶ 5; Defs. Reply Mot. Disqualify Counsel at Decl. Skeen ¶ 1.)

Regarding the 2005 agreement that Defendant Skeen argues is essential to his defense of this lawsuit, the Court notes that this lawsuit pertains solely to real property that was not acquired until October 18, 2010. (Defs. Mot. Disqualify Counsel at 7.) Therefore, it is impossible for Defendant Skeen to have confided information about the Property when Mr. Usher represented him in 2001 and 2005. Nevertheless, Defendant Skeen attests that the 2005 agreement is directly related to Plaintiff’s current allegations because it formed the basis for the alleged 2010 agreement that preceded Leo’s acquisition of the Property; the Court has found no reason to disbelieve this. (Defs. Reply Mot. Disqualify Counsel at Decl. Skeen ¶ 1.) Though this representation was made in a reply declaration, it is not new evidence; it is merely a more precise iteration of the attestation Defendant Skeen made in his moving papers. (Defs. Decl. Chadwick Supp. Mot. Disqualify Counsel ¶ 3.)

As for the 2010 financial agreement, which Defendant Skeen argues is directly relevant to the Property, Mr. Usher was, notably, not representing Defendant Skeen during this June 2021 conversation. (Defs. Reply Mot. Disqualify Counsel at Decl. Skeen ¶ 1.) There is no authority preventing Mr. Usher from relying on information that Defendant Skeen willingly disclosed outside the confines of the attorney-client relationship. (This is also the reason why Defendant Skeen’s alleged friendship with Mr. Usher has no bearing on this motion.) Though Defendant Skeen attests to believing he was speaking with Mr. Usher about the 2010 agreement during an attorney-client conversation, Defendant Skeen offers no facts to support a finding that this was a reasonable belief; nor does he explicitly accuse Mr. Usher of misleading him. The Court therefore finds no reason to conclude that there was an attorney-client relationship during that conversation, or even that Defendant Skeen reasonably believed so.

Mr. Usher submits a sworn declaration in which he attests that Defendant Skeen did not divulge the alleged agreements between Defendant Skeen and Leo, and that the only financial asset Defendant Skeen disclosed was a parcel of land in Belize. (Pl. Opp’n Disqualify Counsel at Decl. Usher ¶¶ 7-8.) Hence, there is conflicting evidence as to whether Defendant Skeen truly disclosed the 2005 agreement.

In light of this conflict in the evidence, the Court returns to the authorities’ preference for “some overinclusion as a necessary byproduct of the paramount solicitude for the maintenance of the public's trust in the fairness of the justice system and in the integrity of the bar manifested by the rule of necessity.” (Jessen v. Hartford Casualty Ins. Co., supra, 111 Cal.App.4th at 714.) The Court has no reason to disbelieve either declaration, and neither seems more credible than the other. Thus, given the important principles at risk with this motion—the principles of lawyer-client confidentiality and the integrity of the judicial system—the Court shall err on the side of caution and order disqualification; the consequence of wrongfully permitting Mr. Usher’s continued representation outweighs the anticipated burden on Plaintiff of having to find new counsel.

In summary, while the Court finds that the former representations and the instant lawsuit do not possess the hallmarks of “substantially related” matters, Defendant Skeen has sufficiently shown that, when Mr. Usher drafted Defendant Skeen’s prenuptial agreement, Defendant Skeen disclosed a 2005 agreement that is directly related to Plaintiff’s current allegations. (Defs. Reply Mot. Disqualify Counsel at Decl. Skeen ¶ 1.) In balancing competing policies, the Court concludes that Mr. Usher must be disqualified.

(The Court does not address Defendant Skeen’s alternative and conclusory argument that Mr. Usher is conflicted because he has a pecuniary interest in the Property, except to note that Defendant Skeen provides no evidence to support this accusation. He alludes to a July 8, 2021 promissory note benefiting Leo and Mr. Usher, but admits it was never executed. (Defs. Decl. Chadwick Supp. Mot. Disqualify Counsel ¶ 7.) Recognizing that an unexecuted instrument does not convey a pecuniary interest, Defendant Skeen then suggests, without explanation, that Mr. Usher’s mere knowledge of the proposed instrument is grounds for disqualification. But, considering that the proposed instrument was created right before this lawsuit was filed, its existence merely suggests that Mr. Usher was involved in negotiating an unsuccessful pre-suit settlement between the brothers. There is no evidence of a pecuniary conflict.)

Imputed Disqualification

“Although the rules governing the ethical duties that an attorney owes to clients are set out in the California Rules of Professional Conduct, those rules do not address when an attorney's personal conflict will be imputed to the attorney's law firm resulting in its vicarious disqualification. Vicarious disqualification rules are a product of decisional law.” (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847.)

When attorneys presumptively share access to privileged and confidential matters because they practice together in a firm, the disqualification of one attorney extends vicariously to the entire firm. [Citation.] The vicarious disqualification rule recognizes the everyday reality that attorneys, working together and practicing law in a professional association, share each other's, and their clients', confidential information.

(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, 20 Cal.4th at 1153.)

Here, Mr. Usher’s conflict should be imputed to his law firm because there is a presumption that attorneys at the same firm have access to the same confidential information. Therefore, the Law Offices of Ulric E. J. Usher must also be disqualified from representing Plaintiff.

Timeliness

Plaintiff argues this motion is untimely because Defendant Skeen has known since June 2021 that Mr. Usher was representing Plaintiff, yet never complained until now. She argues this delay significantly prejudices her ability to find new counsel, because it is “so late in the case.” (Pl.’s Opp’n Disqualify Counsel at 10.)

Because of the law's concern for unhampered counsel on both sides of the litigation, “mere delay” in making a disqualification motion is not dispositive. The delay must be extreme in terms of time and consequence. Thus the court must initially determine when the former client became aware of the attorney's potential conflict. Whether there was diligence in making the motion for disqualification depends upon establishing that knowledge.

(River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1311.) In River West, Inc. v. Nickel, supra, 188 Cal.App.3d 1297, the Court of Appeal found that over three years between the former client’s knowledge of the conflict and his subsequent motion to disqualify was an extreme delay that warranted denying his motion. (Id., 1311.) It also noted that there was nothing preventing the former client from moving to disqualify sooner, and that the over 3,000 hours of litigation that the challenged attorney had performed in that time created insurmountable prejudice. (Id., 1311-1313.)

The Court finds no such issues here. Defendants filed this motion on August 31, 2022, barely a year after the lawsuit was initiated. Although Defendant Skeen learned of Mr. Usher’s representation over a year ago, this does not necessarily mean he, a layman, knew that the representation could have posed a conflict. In the earlier Motion for Leave to File a Cross-Complaint, Defendants mentioned that their previous attorney had to leave the case due to severe illness, and that their current attorney joined the case only five months ago. (See also Defs. Decl. Lochlead, filed Aug. 4, 2022.) Their current attorney then filed the instant motion a mere two months after. Given that their original attorney, due to his illness, failed to file a compulsory cross-complaint with Defendants’ answers, it is not unreasonable to infer that he also failed to notice Mr. Usher’s prior representation of Defendant Skeen, and that Defendants’ current attorney was the first to recognize it. This is a good faith explanation for why this motion came a year after Defendant Skeen learned Mr. Usher was representing Plaintiff.

The Court also disagrees that this case has progressed too far for Plaintiff to obtain new counsel without encountering significant prejudice. The case has barely passed the pleading stage; a demurrer to the First Amended Complaint was ruled on only three months ago. Trial is scheduled for April 28, 2023, which is over 7 months away. This case is therefore relatively young.

Thus, while the Court can deny a motion to disqualify for untimeliness, this situation does not evince the type of “extreme” delay or prejudice that warrants denial.

Conclusion