Marriage of Falcone and Fyke

Filed 3/22/07 Marriage of Falcone and Fyke CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In a dissolution-of-marriage proceeding, Kathey Fyke appeals from an order denying her motion to disqualify Lynne Yates-Carter from representing Richard S. Falcone in the proceeding. In her motion, Kathey[1] took the position that Yates-Carter had a fiduciary attorney-client relationship with her regarding the subject matter of the action based upon three telephone conversations between Kathey and Peggy Rogan, Yates-Carters secretary, which occurred when Kathey was seeking legal representation for this proceeding and Richard was represented in this proceeding by former counsel. Since Kathey fails to demonstrate an abuse of discretion, we affirm the order.

scope of review

Generally, a trial courts decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial courts express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial courts factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial courts discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial courts determination as a question of law. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144 (SpeeDee).)

In reviewing an order stemming from a disqualification motion, we acknowledge that the issue of disqualification impacts significant, sometimes conflicting, policy concerns. These concerns include a partys right to choose his or her own counsel, a clients right to confidentiality and trust, and the publics interest in the scrupulous administration of justice and the integrity of the bar. (SpeeDee, supra, 20 Cal.4th at p. 1145.) On the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings before the court. [Citations.] On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorneys innocent client, who must bear the monetary and other costs of finding a replacement. . . . [] Additionally, as courts are increasingly aware, motions to disqualify counsel often pose the very threat to the integrity of the judicial process that they purport to prevent. [Citation.] Such motions can be misused to harass opposing counsel [citation], to delay the litigation [citation], or to intimidate an adversary into accepting settlement on terms that would not otherwise be acceptable. [Citations.] In short, it is widely understood by judges that attorneys now commonly use disqualification motions for purely strategic purposes. (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 300-301, fn. omitted.)The importance of the policy concerns underlying a disqualification order mandates careful review of the trial courts exercise of discretion. (SpeeDee, supra, 20 Cal.4th at p. 1144.)

Although the court in SpeeDee noted that a disqualification motion involves concerns that justify careful review of the trial courts exercise of discretion, it did not say that an appellate court is authorized to second-guess the trial courts factual findings. To the contrary, the court made it abundantly clear that the evaluation of a trial courts discretionary decision to disqualify or not disqualify an attorney is a separate inquiry to be determined after the evaluation of the substantiality of the record support for the trial courts factual findings. (SpeeDee, supra, 20 Cal.4th at pp. 1143-1144.) In other words, the appellate court cannot reconsider the trial courts findings on disputed facts supported by the evidence, but it can reconsider the trial courts legal conclusions. (See In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561 (Zimmerman) [if substantial evidence supports the trial courts express or implied findings of fact, the appellate court reviews the resulting legal conclusions for an abuse of discretion].)

Here, the scope, scale, and contents of Katheys phone conversations with Rogan were disputed facts. Kathey acknowledges this. She states: What is contested is the timing and some of the content of the three phone calls. Thus, to the extent that this conflicting evidence is relevant to the legal analysis whether the trial court abused its discretion, we accept the evidence favoring the trial courts order and disregard the evidence favoring Katheys position.

background

Richard filed this action via former counsel, and Kathey appeared in pro. per. At some point, attorney Paul Nesse appeared as counsel for Kathey. Thereafter, Richard substituted Yates-Carter as his attorney. Kathey then filed the motion to disqualify.

According to Katheys supporting declaration, (1) Richard had referred her to Yates-Carter, (2) Kathey telephoned Yates-Carter and spoke to Rogan with whom she shared case strategy and confidential information regarding Richards credibility and the support/custody aspects of the case, (3) Kathey telephoned Yates-Carter a second time and spoke to Rogan who informed her that Yates-Carter could not represent her because of a prior contact with Richard that created a conflict of interest, (4) Kathey offered to produce Richards waiver of the conflict, but Rogan said that Yates-Carter would nevertheless decline to represent her, and (5) Kathey telephoned Yates-Carter a third time, spoke to Rogan, and told Rogan that she had told the trial court at a hearing that Yates-Carter had declined to represent her notwithstanding Richards waiver.

According to Rogans opposing declaration, Kathey did not impart to her any confidential information. According to Yates-Carters opposing declaration, Yates-Carter had neither spoken to Kathey nor learned any confidential information about Kathey from Rogan. Rogan also testified at the hearing consistently with her declaration.

discussion

Kathey seeks to disqualify Yates-Carter from representing Richard in this case because of a conflict of interest that arose from her earlier consultation about this case with Yates-Carter via Rogan. She implicitly contends that the consultation created an attorney-client relationship. She argues that disqualification was required as a matter of law because there is a substantial relationship between the subject matters of her consultation and this litigation. But Kathys premise that she had an attorney-client relationship with Yates-Carter, as distinguished from a potential attorney-client relationship, is erroneous.

Attorneys are required to avoid the representation of conflicting interests. (See, e.g., Flatt v. Superior Court (1994) 9 Cal.4th 275, 282.) An attorney represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose. (Id. at p. 282, fn. 2.) The well established ethical stricture against attorney conflicts of interest is embodied in rule 3-310 of our Rules of Professional Conduct (hereafter Rule 3-310). (Id. at p. 282.) As relevant here, that rule provides that an attorney shall not, without the informed written consent of each client: [] (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or [] (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict. (Rule 3-310(C).)

Under the substantial relationship test, subsequent representation is proscribed on the theory that its substantial relationship to the former representation places the attorney in a situation where he or she could breach the duty of confidentiality to the former client. [Citation.] Possession of confidential information is presumed where a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney . . . . [Citations.] If the substantial relationship test is satisfied by the former client, . . . the discussion should ordinarily end. The rights and interests of the former client will prevail. Conflict would be presumed; disqualification will be ordered. (Zimmerman, supra, 16 Cal.App.4th 556, 563.)

But these principles apply when the complaining party has or had an attorney-client relationship with the challenged attorney. It is the confidences acquired in the course of an attorney-client relationship that are protected by preventing the recipient of those confidences from representing an adverse party. (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352.)

It is true that an attorney may owe a duty to potential clients to safeguard confidences disclosed by them in initial consultations, even if no professional employment results. (SpeeDee, supra, 20 Cal.4th at pp. 1147-1148.) But there is no presumption that a potential client disclosed confidences to a potential attorney, even if there is a substantial relationship between the subject matters of the consultation and challenged representation.

In considering whether an attorney-client relationship has reached a point where the attorney can be subject to disqualification for a conflict of interest, we begin with the relationships early stages . . . . The fiduciary relationship existing between lawyer and client extends to preliminary consultations by a prospective client with a view to retention of the lawyer, although actual employment does not result. [Citation.] When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie. [Citation.] The absence of an agreement with respect to the fee to be charged does not prevent the relationship from arising. (SpeeDee, supra, 20 Cal.4th at pp. 1147-1148.)

The primary concern is whether and to what extent the attorney acquired confidential information. [Citation.] That question is not necessarily answered by the amount of time involved. Even the briefest conversation between a lawyer and a client can result in the disclosure of confidences. [Citation.] 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. (SpeeDee, supra, 20 Cal.4th at p. 1148, italics added.)

Here, the undisputed facts are that Yates-Carter never represented Kathey in this proceeding. More precisely, Yates-Carter declined to represent Kathey in this proceeding. Thus, the most that Kathey can say is that she was a potential client of Yates-Carter. The relevant test is therefore whether Yates-Carter (1) obtained confidential information from Kathey, and (2) rendered legal advice or services as a result. As to confidential information, the evidence is conflicting. But the evidence supporting the order is that Yates-Carter did not obtain any confidential information. As to legal advice or services, there is no evidence supporting that Yates-Carter gave Kathey any advice or rendered her any services. The trial courts order logically follows from this evidence.

This case is similar to Zimmerman, supra, 16 Cal.App.4th 556. In Zimmerman, the wife had a 20 minute telephone conversation about postmarital dissolution matters with a partner of the challenged law firm. The partner took no notes of the conversation though his practice was to do so when speaking with prospective clients. And he ultimately advised the wife to seek representation by a family lawyer. After the conversation, the husbands attorney became a partner in the firm. In her motion to disqualify the firm and husbands attorney from representing the husband in postmarital dissolution matters, the wife claimed that, during the phone conversation, she had completely explained her case to the partner who, in turn, had given her his impressions and opinions. In opposition, the partner professed no recollection of the contact with the wife. The trial court denied the wifes motion. On appeal, the wife argued that the trial court had erred in denying her motion because the consultation with the partner had a substantial relationship to the current litigation. The court agreed with this point. It observed that there was a substantial relationship between the former and current aspects of the litigation since husbands attorney was litigating in the same case about which the wife had consulted the attorneys partner. But it nevertheless affirmed the trial courts order after examining whether the nature of the former relationship of the attorney to the former client was such that confidential information material to the current dispute would normally have been imparted to the attorney. It noted that the partner (1) had not represented the wife other than in a preliminary and peripheral fashion, (2) had not performed work for the wife, (3) had referred the wife elsewhere, and (4) did not learn confidential information. It held that substantial evidence failed to establish a relationship with [the partner] from which it would be reasonable to infer disclosure of confidential information. (Id. at p. 565.)

Here, the relationship between Kathey and Yates-Carter is more attenuated than the relationship between the wife and the partner in Zimmerman--Kathey never spoke to Yates-Carter.

Kathey argues that Zimmerman supports her position because, here, she disclosed confidential information to Yates-Carter. But, as we have pointed out, the parties disputed that fact and the trial court implicitly accepted that Yates-Carter did not obtain confidential information from Kathey. And, in any event, Yates-Carter neither gave Kathey advice nor performed services for Kathy.

In summary, we glean from SpeeDee and Zimmerman that, in a conflict-of-interest case where the attorney-client relationship was potential, it is not reasonable to presume that confidential information passed--the challenger must establish actual disclosure and advice or services; where the attorney-client relationship was actual, disclosure of confidential information can be presumed where a substantial relationship has been shown to exist between the former representation and the current representation.

disposition

The order after hearing is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] As is customary in family law cases, we will refer to the parties by their given names for purposes of clarity and not out of disrespect. (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1549, fn. 1.)