Judge: Thomas D. Long, Case: 22STCV22161, Date: 2023-02-28 Tentative Ruling

Case Number: 22STCV22161    Hearing Date: February 28, 2023    Dept: 48

The court will not post a tentative on the two motions to disqualify but poses the following questions to the parties for discussion at oral argument:

 1. Are we all in agreement that no ethical walls were ever constructed or proposed by Engineer in any aspect of Pham's or Lobbin’s representation of Engineer?  If we are not in agreement, please be prepared to cite to pertinent evidence in the record and to discuss whether and how it solves the problem.  You might consider Kirk v. First American Title (2010) 183 Cal. App. 4th 776.

2. Are we all in agreement there is no consent by Talkdesk (either informed or otherwise)?  Again be prepared to cite evidence if you contend there is.

3. Are we all in agreement that the pertinent standard in evaluating a conflict is whether the contested representation is in the same matter or a “substantially similar” matter that the attorney previously worked on?  If you contend otherwise, have cites to controlling authority ready.

4. Are we all in agreement that the negotiation of the contract and litigation regarding the contract are “substantially similar” matters?  If not, why not?

5. If we agree on all of the principles and facts above, then it appears that Pham has worked on a matter that ethical rules required he not work on unless he had either (or possibly both) informed consent from Talkdesk and an ethical wall around him so that he did not work on this litigation.  It also appears that Pham, much like a Typhoid Mary, has tainted Lobbin.  If you disagree with these conclusions, be prepared to cite controlling authority and evidence in the record.

6. Was Pham ever employed by the companies' California locations such that California Rule of Court, rule 9.46 regarding registered in-house counsel is implicated?  If so, was he in compliance with those requirements?  Did Pham engage in unauthorized practice of law in California and does he continue to do so?  Has there been a report to the relevant District Attorney and/or to the State Bar?

7. Were the court to grant one or both of the motions, is dismissal the least onerous remedy that would protect Talkdesk’s rights?  The court is disinclined to impose what amounts to terminating sanctions without proof that lesser remedies necessarily will be insufficient or are shown to be insufficient in practice.  Why cannot the court order that new counsel be retained and that initially all information provided to new counsel be provided in writing with an opportunity for Talkdesk’s counsel to review and object before any material is provided?  Also, can designated client representatives at Engineer be identified who are not already tainted by Pham and Lobbin, who can be walled off, and who can communicate instructions with new counsel on a privileged basis?  Should a Special Master be appointed at Engineer’s expense to review future communications between Engineer and new counsel to screen out any confidences of Talkdesk?