Smith – Trust

California Rules of Professional Conduct (CRPC), rule 1.9, based on an alleged conflict of interest.

Petitioner has not established that he has standing to bring this motion.

In 2021, the Court of Appeal for the First District reviewed the law of standing for a disqualification motion in Moreci v. Scaffold Solutions, Inc. (2021) 70 Cal.App.5th 425 (Moreci).

In Moreci, Employee was injured on the job and received worker’s compensation benefits from Insurance Carrier. (Moreci, supra, at 429.) Attorney represented Employee in a lawsuit against Subcontractors for the injuries sustained on the job, and the case settled. (Id.) Insurance Carrier intervened and sought reimbursement from Subcontractors for benefits paid to Employee. (Id.) Attorney then became associate co-counsel for Subcontractors and filed an answer to the Complaint for Intervention on behalf of Subcontractors. (Id.) Insurance Carrier moved to disqualify Attorney based on the conflict of interest between Employee and Subcontractors. (Id.) The motion was denied for lack of standing. (Id.)

In affirming the lower court’s denial of the motion to disqualify, the court in Moreci began its analysis of standing law as follows:

“A ‘standing’ requirement is implicit in disqualification motions.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356, 114 Cal.Rptr.3d 301 (Great Lakes).) A party moving to disqualify counsel must have a legally cognizable interest that would be harmed by the attorney's conflict of interest. (Id. at p. 1357, 114 Cal.Rptr.3d 301.) Courts have found an attorney-client relationship between the complaining party and the attorney sought to be disqualified is a prerequisite to seeking disqualification. (Id. at p. 1356, 114 Cal.Rptr.3d 301; Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1404, 82 Cal.Rptr.2d 326 [“An attorney-client relationship must have existed before disqualification is proper”].)

“Other courts, however, have slightly broadened the scope of that general rule,” holding that a nonclient may bring a disqualification motion based on an attorney's breach of a duty of confidentiality owed to the nonclient. (Dino v. Pelayo (2006)

145 Cal.App.4th 347, 352 [51 Cal. Rptr. 3d 620], citing DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832 [115 Cal. Rptr. 2d 847] (DCH Health Services) [“Standing arises from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed”].)

(Moreci, at 432-433.)

The court in Moreci also recognized that some courts have endorsed what has been described as a “minority view” that recognizes nonclient standing where a “manifest and glaring” ethical breach “so infects the litigation in which disqualification is sought that it impacts the moving party’s interest in a just and lawful determination of [its] claims.” (Moreci, at p. 433, internal citations omitted.) But even under the minority view, “[a] nonclient must establish a ‘personal stake’ in the motion to disqualify opposing counsel that is sufficient to satisfy the standing requirements of article III of the United States Constitution.” The nonclient must “meet stringent standing requirements, that is, harm arising from a legally cognizable interest which is concrete and particularized, not hypothetical.” (Moreci, at p. 434, internal citations omitted.)

The trial court in Moreci had found that Insurance Carrier did not have standing even under the minority view because it failed to show “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” (Id. at 432.) The trial court found that Insurance Carrier “alleged merely a generalized interest in ‘the court’s obligation to ensure the fair administration of justice’, an interest insufficient ‘to give a non-client standing.’” (Id.)

The appellate court agreed. It found “the thrust of [Insurance Carrier’s] motion rests on a purported effort to safeguard the integrity of the judicial system and the ‘scrupulous administration of justice.’ ‘None of these lofty values, however, implicates any personal right of [Insurance Carrier] which is burdened by the alleged conflict of interest.’ [Citation.]” (Id. at 444.)

Petitioner claims that Bezaire & Leathers previously represented the decedents R.D. Smith and Betty Kelly Smith in preparing the estate plan and now represents only Betty’s children. There is no evidence that Ms. Leathers, Mr. Lau, and or any other person at the present law firm of Bezaire & Leathers LLP ever represented the decedents or acquired any confidential information from them. In fact, the evidence shows that they were not licensed to practice law at the time the estate plan was created. The estate plan was created by attorney Maria Bezaire who prepared the estate plan in 1999

and sold the firm many years later. Further, Petitioner’s moving and reply papers fail to articulate any personal stake that Petitioner has in the motion to disqualify or any legally cognizable interest of Petitioner’s that would be harmed by Bezaire & Leathers LLP’s continued representation of Lou Ann Kelly and Michael Kelly.

Lacking a personal stake in the motion to disqualify, Petitioner lacks standing even under the minority view recognized by Moreci. Even if he had standing, Petitioner has not established the existence of any conflict of interest warranting disqualification.

Finally, the court notes that Lou Ann Kelly and Michael Kelly have yet to make an appearance in this case. Thus, Bezaire & Leathers is not, as of now, “attorney of record” for them. “A trial court’s authority to disqualify an attorney derives from the power inherent in every court ‘[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.” (People ex rel. Department of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145, emphasis added; internal citations omitted.) The court cannot control an attorney’s representation of clients outside of litigation.

For the foregoing reasons, the motion to disqualify is DENIED.

TENTATIVE RULING

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01496276 Schasker – TENTATIVE RULING Trust Case: Schasker – Trust 01496276