Judge: Serena R. Murillo, Case: 19STCV33158, Date: 2023-09-26 Tentative Ruling
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Case Number: 19STCV33158 Hearing Date: September 26, 2023 Dept: 31
TENTATIVE
Plaintiffs’ motion to disqualify
is DENIED in its entirety.
Legal Standard
A trial court is
empowered to disqualify counsel through its inherent power to control the
conduct of its ministerial officers, and of all other persons in any manner
connected with a judicial proceeding before it. (M’Guinness v. Johnson (2015) 243 Cal.App.4th 602, 669.)
A party may move
to recuse (disqualify) counsel for the opposing party on grounds recognized by
law, including mandatory disqualification for conflict of interest. Conflicts of interest generally include:
concurrent or successive representation of clients with adverse interests,
receipt of confidential information outside the attorney-client relationship,
the lawyer’s relationships with nonclients, conflicts based on the lawyer’s own
interests, business dealings with clients and conflicts in criminal cases. (Lynn v. George (2017) 15
Cal.App.5th 630, 638.)
Attorneys are
forbidden from accepting employment adverse to current or former clients
without informed written consent where the attorney, by virtue of his or her
current or former representation, “has obtained confidential information
material to the employment.” (Cal. Rules
of Prof. Conduct, rule 3-310(E).) This
rule is designed to “protect the confidential relationship … between attorney
and client … which continues after the formal relationship ends.” (Henriksen
v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113 (Henriksen); accord Bus. & Prof.
Code, § 6068, subd. (e)(1) [an attorney must “maintain inviolate the
confidence, and at every peril to himself or herself to preserve the secrets,
of his or her client”].)
In ruling on a motion to disqualify, the court should weigh: (1) the
party’s right to counsel of choice; (2) the attorney’s interest in representing
a client; (3) the financial burden on a client for change of counsel; (4) any
tactical abuse underlying a disqualification motion; and (5) the principal that
the fair resolution of disputes requires vigorous representation of parties by
independent counsel. (Mills Land &
Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.)
Whether an attorney should be disqualified is a matter addressed to the sound
discretion of the trial court. (Henriksen,
supra, Cal.App.4th at p. 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.)
Discussion
Plaintiffs move to (i) disqualify counsel for ACLU, arguing they engaged in misconduct and violated their
ethical duties by ignoring an obvious conflict of interest and (ii) to prohibit
the ACLU from pursuing its injunctive relief claim under Code of Civil
Procedure 526a on the ground that ACLU breached, and in any event unilaterally
terminated, the co-counseling agreement that formed the basis of its
participation in this action in the first place and therefore its ability to
prosecute the claim.
Disqualification of ACLU attorneys is
sought because Peter Bibring, a former attorney of record and lead attorney for
ACLU in this case up through 2023, quietly began negotiating with Defendant
County of Los Angeles for a job as Assistant Inspector General, a position in
the office that is overseeing the deputy gang issue for Defendant. Bibring
later admitted that he had been in talks with Defendant County for months
regarding employment with them, while negotiating with the County over
the terms and scope of the reform agreement. Bibring’s co-counsel, Melanie
Ochoa and Tiffany Bailey, were aware of Bibring’s “backroom negotiations” but
failed to take appropriate action to avert a clear conflict of interest.
Plaintiffs argue that ACLU and its
counsel have engaged in self-dealing and endeavored to disregard and even
undermine the interests of the Deputy Plaintiffs by hijacking settlement
negotiations with the defendants and unilaterally and prematurely pursuing a
reform settlement at the expense of the Deputy Plaintiffs in violation of their
Co-Counsel Agreement, which states, “Neither Party will enter into settlement
discussions, or agree to a settlement, without first securing the review and
consent of the other Party.” (Emphasis added.) Plaintiffs argue that ACLU’s
attorney’s intentional breach of the co-counseling agreement constitutes an
ethical violation requiring their disqualification.
i.
Standing
As an initial matter, ACLU argues
that Plaintiffs lack standing to challenge ACLU’s counsel’s representation of
ACLU. Deputy Plaintiffs have not alleged that they had an attorney-client
relationship with ACLU’s counsel and, in fact, they could not, as the parties’
Agreement expressly disclaimed any attorney-client relationship. The Deputy
Plaintiffs also have not alleged that Ms. Ochoa or Ms. Bailey have violated any
duty to the Deputy Plaintiffs that would serve as a basis to disqualify the
ACLU: they have not alleged that they possess any confidential information of
the Deputy Plaintiffs’ or had any fiduciary relationship that would require
them to maintain the confidentiality of such information. Again, they could not
make such an allegation because no private or confidential information about
the Deputy Plaintiffs was ever disclosed to ACLU counsel. Instead, the Deputy
Plaintiffs allege that a former ACLU attorney, Peter Bibring, had a conflict in
that he was seeking employment with the County during a time he was also
representing the ACLU as a plaintiff in this case. Yet any duty that Bibring
owed was to his clients, not to the Deputy Plaintiffs. And his client provided
informed consent to his continued representation, which resolved the conflict.
ACLU also argues that the Deputy Plaintiffs have not alleged a cognizable injury
sufficient to convey standing to challenge ACLU counsel’s participation in this
case.
Plaintiffs argue
they have standing under Kennedy v. Eldridge (2011) 201 Cal.App.4th
1197, 1205. “[T]he court has an independent interest in ensuring trials are conducted
within ethical standards of the profession and that legal proceedings appear
fair to all that observe them.” (In re A.C. (2000) 80 Cal.App.4th 994,
1001.) Accordingly, where an attorney's continued representation threatens an
opposing litigant with cognizable injury or would undermine the
integrity of the judicial process, the trial court may grant a motion for
disqualification, regardless of whether a motion is brought by a present or
former client of recused counsel. (Kennedy v. Eldridge, supra, 201
Cal.App.4th 1205.)
However, it is not clear what the
cognizable injury claimed here is. Plaintiffs argue that the nature of the
parties’ relationship and interests indicates that the conduct of the former
and current ACLU attorneys would likely have a continuing effect on the
proceeding. They argue that implicit in the arrangement was that neither
co-plaintiff would do anything to harm the interests of the other co-
plaintiff, least of all engage in self-dealing. This peculiar arrangement could
only work if the co-plaintiffs viewed their litigation strategy in a
cooperative manner, but the ACLU opted to pursue its own interests seemingly
without regard the consequences its strategy would have for the Deputy
Plaintiffs.
Plaintiffs argue the County is well aware
that signing such a reform agreement prior to a judgment in favor of the
Plaintiffs at trial renders it a hollow and useless reform agreement. Any
reform agreement on deputy gangs and subgroups in LASD will face tremendous
pushback and a demand to “show us the evidence to support the need for reform
and that deputy gangs even exist.” It is understandable that detractors would
demand to see a foundation for the reform. As long as the County continues to
hide and deny the evidence generated in this case, it will continue to render
any signed reform agreement a sham, as it will not get the necessary support to
make it successful.
Again, the Court is unable to decipher
what interests will be injured. It appears Plaintiffs were seeking ACLU to join
them as plaintiffs at trial for strategic and monetary purposes. Nevertheless,
assuming there was a cognizable injury, the motion is nevertheless not
supported by any legal basis.
ii.
Conflict
of Interest
Plaintiffs’ basis for moving to
disqualify ACLU’s attorneys’ is their alleged intentional breach of the
Co-Counseling Agreement, which Plaintiffs contend constitutes an ethical
violation requiring their disqualification. Plaintiffs argue that an
attorney owes a duty to support the laws of this state. (Bus. & Prof.
Code § 6068(a).) In addition to the California Rules of Professional
Conduct, attorneys in the state must adhere to Division 3, Chapter 4, of the
Business and Professions Code. Plaintiffs continue, a violation of these
statutory provisions constitutes a basis for bringing disciplinary charges
against the attorneys. Intentionally breaching a contract in order to obtain a
particular outcome in the case constitutes grounds for discipline under section
6068, Plaintiffs argue.
In opposition, ACLU argues that
what the Deputy Plaintiffs characterize as ACLU’s purported breach of the
Co-Counseling Agreement does not implicate a conflict of interest recognized by
the California Rules of Professional Conduct, which focuses on duties lawyers
owe to their current or former clients, nor does it support disqualification of
counsel. (See Cal. R. of Prof. Conduct, Rules 1.7 and 1.9). Rather, the
Deputy Plaintiffs and their counsel’s attempt to manufacture a “conflict of
interest” because ACLU has different interests than do the Deputy Plaintiffs.
The Court agrees. Plaintiffs have not
shown that this section of the Business and Professions Code would provide a
basis to disqualify counsel for ACLU. Further, even if it did, it is not
apparent that there was any such breach.
In support of their argument that
co-counsel breached the agreement, Plaintiffs argue that the Agreement provides
that, “Neither Party will enter into settlement discussions, or agree to a
settlement, without first securing the review and consent of the other Party.”
(Exh. 1.)
In opposition, ACLU argues that
Plaintiffs cannot establish that ACLU violated any terms of the Agreement. ACLU
explains that until June 27, 2023, both the Deputy Plaintiffs and the ACLU were
actively participating in settlement negotiations with the County and neither
set of plaintiffs objected to the participation of the other. (Ochoa Decl., ¶
9, 13.) On that date, when Plaintiffs’ counsel informed ACLU’s counsel that his
clients were going to refuse the proposed settlement and asserted that
settlement negotiations should cease, ACLU immediately stopped settlement
communications with the County. (Id., ¶¶ 13, 14.) ACLU’s counsel then consulted
with its own ethics counsel and terminated the Agreement pursuant to Paragraph
12 of the parties’ agreement, and provided notice to Plaintiffs’ counsel that
they could no longer maintain the co-counsel arrangement because the interests
of the parties had diverged greatly—ACLU was continuing to seek injunctive
relief for reform around LASD, while the Deputy Plaintiffs appeared willing to
sacrifice potential reform in favor of greater monetary damages. (Id., ¶ 15.)
ACLU did not resume settlement negotiations with the County until after its
counsel provided notice terminating the Agreement to Plaintiffs’ counsel. (Id.,
18.)
The Court finds that even if there were
an injury or a basis providing for disqualification under Plaintiffs’ cited
section, Plaintiffs have not shown that ACLU counsel breached any section of
the agreement to support disqualification on the alleged grounds. The parties
were in settlement discussions together, and when Plaintiffs objected to the
proposed settlement between the County and ACLU, ACLU realized that their
interests were not aligned and terminated the agreement, under a section of the
agreement which specifically allowed them to do so.
As to Bibring’s employment with
the County, ACLU provides evidence that it explicitly waived any potential
conflict of interest that could arise due to Mr. Bibring’s past representation
of the ACLU before Mr. Bibring applied for the position with the Office of
Inspector General. (Ochoa Decl., ¶ 21.) Further, the parties’ agreement states
that Plaintiffs are not ACLU’s clients. “Separate Clients. In the
litigation, Vincent Miller will represent [the Deputy Plaintiffs]. ACLU
Foundation shall represent itself and/or the American Civil Liberties Union of
Southern California (“the Union”). Nothing in this agreement or any other
document creates an attorney-client relationship between Miller and either the
ACLU Union or ACLU Foundation, or between ACLU Foundation and the Plaintiff
Deputies. Each Party agrees to be bound by its own retainer to its clients.”
(Id., ¶ 6.)
iii.
Request
to Remove ACLU
Plaintiffs argue that ACLU’s
unilateral termination of the agreement coupled with engaging in “highly
unethical conduct” requires it to withdraw form this case because the agreement
was the vehicle for its participation in the first place.
However, the Court has already
found that the attorneys did not breach the agreement. Moreover, as ACLU
argues, Plaintiffs have not identified any law that would allow this Court to
remove ACLU from this matter as a result of participating in settlement
discussions after they terminated the agreement or terminating the agreement
under its own terms allowing ACLU to do so. Plaintiffs claim that participation
in the co-counsel agreement was a “condition for [ACLU] joining this action as
co-plaintiff,” but do not point to any provision in the agreement which states
this.
Conclusion
Based on the foregoing,
Plaintiffs’ motion to disqualify is DENIED in its entirety.
Moving party is ordered to give
notice.