Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Kern County Superior Court No. S-1500-CV-261558-AEW Arthur E. Wallace, Judge.
The Morrison Law Group and Brett C. Drouet in Pro. Per. and for Defendants and Appellants.
Dake, Braun & Monje, Craig N. Braun and Richard A. Monje for Plaintiffs and Respondents.
OPINION
Levy, J.
The underlying case concerns the merger of two religious corporations. Guru Nanak Mission of Bakersfield, Inc. (Guru Nanak) merged with Guru Nanak Mission Sikh Center (Sikh Center) with Sikh Center as the surviving corporation. Plaintiffs and respondents, Gursharan Singh Grewal, Binder Dhaliwal, Sharnjit K. Dhaliwal, Surjit S. Dhaliwal, Navdeep S. Dhillon, Ajaib Singh Gill, Harsharan Singh Gill, Manjinder Gill, Rupinder Singh Jhaj, Jaswant Khokar, Nazar Singh Kooner, Satnam S. Manku, Surat Singh, and Tarminder Singh, sought to void the merger through a complaint filed against defendants and appellants, Sikh Center, Nirbhai Singh Chehal, Ranjit Singh, and Gurcharan S. Dhillon.
In this appeal, appellants challenge the disqualification of their counsel, appellants Brett C. Drouet and The Morrison Law Group. The trial court disqualified Drouet after finding that Drouet violated California Rules of Professional Conduct, rule 2-100, by communicating with several former plaintiffs without opposing counsel’s consent. Appellants contend that the trial court erred in granting respondents’ disqualification motion because respondents failed to present substantial evidence that those former plaintiffs were represented at the time of the communication, that Drouet actually knew of that representation, and that such communication prejudiced the judicial proceedings.
All further rule references are to the California Rules of Professional Conduct.
As discussed below, the trial court did not abuse its discretion when it disqualified Drouet and The Morrison Law Group. Therefore, the disqualification order will be affirmed.
BACKGROUND
Respondents and 138 other members of Guru Nanak filed a complaint against the Sikh Center in April 2008 seeking to rescind the merger of Guru Nanak and the Sikh Center. The complaint alleged that these plaintiffs were statutory members of this nonprofit religious corporation and had been deprived of their right to vote on and approve any proposed merger.
On June 3, 2008, Sikh Center served form interrogatories, special interrogatories, requests for admissions, and requests for production of documents on all 153 of the original plaintiffs.
On June 16 and 23, 2008, respondents’ counsel, Dake, Braun & Monje, LLP, dismissed 138 of the original plaintiffs. The court and the parties referred to these dismissed plaintiffs as the “Concurring Members.” In the first amended complaint, filed on June 17, 2008, respondents alleged that the Concurring Members agreed that their rights as statutory members had been violated and that they supported respondents’ efforts and request for relief.
On August 26, 2008, appellants moved to compel further responses to respondents’ answers to their written discovery requests. Among other things, appellants sought the addresses and telephone numbers of the 138 Concurring Members. Respondents had not provided this information because, according to respondents’ counsel, these individuals were still clients and could be contacted through respondents’ counsel’s office.
Drouet was informed of respondents’ position in writing on at least two occasions. On August 21, 2008, in a letter responding to Drouet’s meet and confer letter, respondents’ counsel, Richard A. Monje of Dake, Braun & Monje, wrote:
“Further, your contention that Plaintiffs must provide the names, address, and telephone numbers of the ‘Concurring Members, ’ apparently on the belief that they are witnesses and no longer represented by this firm is inexplicable and contrary to discussions we have had. As we previously advised you, this office still represents the Concurring Members and therefore neither you nor anyone acting on your behalf would have any right to contact the Concurring Members to discuss the subject action. Therefore, you have no need for the addresses and telephone numbers.”
Then again, in an August 28, 2008, letter Monje advised Drouet:
“With respect to the addresses and telephone numbers of the various ‘Concurring Members, ’ as you have been previously advised, the concurring members are clients of this office in connection with the captioned litigation. Therefore, you can contact those individuals through this office. We do not believe there is any reason to disclose their personal addresses and telephone numbers in that your office would not be entitled to contact them directly or through any investigator because of the attorney-client representation.”
In October and November 2008, after filing the motion to compel, but before it was ruled on, Drouet met with 11 of the Concurring Members. According to Drouet, his client, Gurcharan S. Dhillon, had advised him that these individuals were unaware that a complaint had been filed naming them as plaintiffs and that they had never heard of, or met with anyone from, Dake, Braun & Monje. Drouet instructed Dhillon that he must be sure that these individuals were not represented by Monje or Dake, Braun & Monje and Dhillon confirmed that that was the case. Dhillon then arranged for the 11 Concurring Members to meet with Drouet.
Drouet claims that upon meeting each of the 11 Concurring Members, and before taking their videotaped witness statements under oath, he introduced himself, gave them his business card, and informed them that he represented the defendants. According to Drouet, he told each of them that all he wanted was for them to tell the truth. Drouet then asked the Concurring Members if they were currently represented by Monje. The 11 Concurring Members all told him that they were not represented by Monje or Dake, Braun & Monje or any other attorney. These Concurring Members also stated that they had never seen a copy of the complaint. Moreover, although listed on the Guru Nanak’s membership list that was purportedly approved and voted on in 2004, certain of these Concurring Members told Drouet that they became members of Guru Nanak after that date.
In January 2009, appellants moved to disqualify respondents’ counsel, Monje and Dake, Braun & Monje. In support of this motion, appellants submitted the “voluntary witness statements under oath” given by the 11 Concurring Members. The trial court denied this motion.
Thereafter, respondents moved to disqualify Drouet and The Morrison Law Group on the ground that Drouet had violated rule 2-100 by directly and indirectly communicating with represented parties outside the presence, and without the consent, of opposing counsel. The trial court granted the motion.
DISCUSSION
1. Standard of review.
A motion to disqualify an attorney is directed to the trial court’s broad discretion. (McPhearson v. Michaels Co. (2002) 96 Cal.App.4th 843, 851.) Thus, generally, a trial court’s decision on such a motion is reviewed for abuse of discretion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 (SpeeDee Oil).) If the trial court resolved disputed factual issues, the reviewing court will not substitute its judgment for the trial court’s express or implied findings supported by substantial evidence. (Ibid.) Nevertheless, in exercising its discretion, the trial court must make a reasoned judgment consistent with the legal principles and policies appropriate to the matter at issue. (McPhearson v. Michaels Co., supra, 96 Cal.App.4th at p. 851.) Where there are no disputed material facts, the appellate court reviews the trial court’s decision as a question of law. (SpeeDee Oil, supra, 20 Cal.4th at p. 1144.) “In any event, a disqualification motion involves concerns that justify careful review of the trial court’s exercise of discretion.” (Ibid.)
Appellants contend there are no disputed material facts and thus this court’s review of Drouet’s disqualification should be de novo. However, contrary to appellants’ position, material facts were disputed in the trial court. For example, appellants claimed that the 11 Concurring Members never spoke with or ever heard of respondents’ counsel whereas respondents’ counsel declared that he had signed retainer agreements from those individuals. Thus, the trial court was called upon to resolve disputed factual issues. Accordingly, review is for an abuse of discretion.
2. The trial court did not abuse its discretion in disqualifying Drouet based on a rule 2-100 violation.
A trial court has the authority to disqualify attorneys who violate professional ethical rules. (Jackson v. Ingersoll-Rand Co. (1996) 42 Cal.App.4th 1163, 1166.) This authority is derived from the court’s inherent power “‘[t]o control in furtherance of justice, the conduct of its ministerial officers.…’” (SpeeDee Oil, supra, 20 Cal.4th at p. 1145.)
Disqualification motions implicate several important interests, including the clients’ right to counsel of their choice, the attorney’s interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. (Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 218-219.) Ultimately, such motions involve a conflict between these interests and the need to maintain ethical standards of professional responsibility. (SpeeDee Oil, supra, 20 Cal.4th at p. 1145.) “The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” (Ibid.)
Nevertheless, it must be remembered that disqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety. (Roush v. Seagate Technology, LLC, supra, 150 Cal.App.4th at p. 219.) The point of disqualification is not to punish ethical transgressions, but to prevent continuing, detrimental effects upon the proceedings. (Jackson v. Ingersoll-Rand Co., supra, 42 Cal.App.4th at p. 1166.)
Here, the trial court disqualified Drouet under rule 2-100. Rule 2-100 provides, in relevant part: “While representing a client, a member [of the California State Bar] shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” The purpose of this rule is to preserve the attorney-client relationship so as to permit an attorney to function adequately in his or her proper role and to prevent an opposing attorney’s intrusion and interference. (Abeles v. State Bar (1973) 9 Cal.3d 603, 609; Jackson v. Ingersoll-Rand Co., supra, 42 Cal.App.4th at p. 1167.) This rule requires actual, not constructive knowledge. In other words, it does not apply where the attorney does not actually know, but should have known, that the party was represented. (Truitt v. Superior Court (1997) 59 Cal.App.4th 1183, 1188.)
a. The 11 Concurring Members were represented parties in October and November 2008.
The first issue is whether the 11 Concurring Members were represented parties. There is no question that they were represented parties before being dismissed as plaintiffs in June 2008. (Abeles v. State Bar, supra, 9 Cal.3d at p. 609.) However, the fact that they were former plaintiffs does not settle the issue. The term “party” broadly denotes person and is not limited to litigants. (Jackson v. Ingersoll-Rand Co., supra, 42 Cal.App.4th at p. 1167.) Thus, it must be determined whether the 11 Concurring Members were still represented parties in October and November 2008.
Appellants rely on the statements of the 11 Concurring Members taken by Drouet to support their position that those Concurring Members were not represented parties. According to Drouet, his client, Dhillon, told him that these Concurring Members were not represented by counsel and these individuals confirmed that they were not, and never had been, represented by Monje or Dake, Braun & Monje when Drouet met with them. Appellants argue that their position is further supported by respondents’ counsel’s failure to present evidence of the firm’s actual representation of any of the 11 Concurring Members following their dismissal from the action. In other words, there is no evidence to support the trial court’s finding that the 11 Concurring Members were represented parties in October and November 2008.
However, the evidence that was before the trial court when it ruled on the disqualification motion is not so one-sided. As noted above, when the 11 Concurring Members were named plaintiffs, they were represented parties. They had counsel of record, i.e., Dake, Braun & Monje, and thus were represented even if that counsel was not in fact authorized to act for those individuals. (Abeles v. State Bar, supra, 9 Cal.3d at p. 609.) Moreover, respondents’ counsel declared that Dake, Braun & Monje had signed retainer agreements for the plaintiffs and the Concurring Members and that they continued to represent those individuals. This is a sworn statement given by an officer of the court. According to respondents’ counsel, the Concurring Members were dismissed from the action in June 2008 merely for “tactical purposes.” Further, the record indicates that at least some of the 11 Concurring Members have recanted their statements given to Drouet. Thus, contrary to appellants’ position, the trial court’s finding that the Concurring Members were represented parties when Drouet contacted them is supported by substantial evidence.
Appellants rely on Jackson v. Ingersoll-Rand, supra, 42 Cal.App.4th 1163 to support their claim that the Concurring Members were not represented parties. In Jackson, the party at issue, Ms. Jackson, was joined as a plaintiff in her husband’s personal injury action and sued for loss of consortium. However, after the parties separated, Ms. Jackson was dismissed from the action. Thereafter, as part of the property division in the dissolution, Ms. Jackson gave up any interest in the lawsuit. Over two years after Ms. Jackson’s dismissal from the case, she was called by defendant’s counsel. Based on this contact, the trial court disqualified the attorney despite the fact that plaintiff’s counsel had not appeared as Ms. Jackson’s attorney of record for over two years. The appellate court reversed on the ground that, because there was no longer a pending case in which Ms. Jackson held any interest, she was not a represented party. The court concluded that “an attorney who once appears on behalf of a client does not remain ‘counsel of record’ until time immemorial, forever excluding other attorneys from contacting the former client. Rule 2-100 is designed to preserve existing attorney-client relationships, not to grant an attorney hegemony over former clients through which he or she can obstruct the opposing party’s investigation of its case.” (At p. 1168.)
In contrast here, it was only around four or five months after the Concurring Members were dismissed from the action that Drouet met with 11 of those Concurring Members. Further, being members of the Guru Nanak congregation, the Concurring Members have an ongoing interest in the litigation.
In sum, the trial court resolved disputed factual issues and its finding that the Concurring Members were represented parties is supported by substantial evidence. Accordingly, this court will not substitute its judgment for that of the trial court.
b. Drouet had actual knowledge of the Concurring Members’ status as represented parties.
The record also supports finding that Drouet had actual knowledge of the Concurring Members’ status as represented parties. In August 2008, after the Concurring Members were dismissed from the lawsuit, Drouet was advised on at least two occasions in writing by Monje that the Concurring Members were still represented by Dake, Braun & Monje in connection with the subject litigation. While Drouet apparently questioned Monje’s claim, this issue should have been raised in the trial court. Such a dispute should not be resolved unilaterally by the opposing attorney. (Abeles v. State Bar, supra, 9 Cal.3d at pp. 609, fn. 7.) Accordingly, the finding that Drouet violated rule 2-100 is supported by substantial evidence.
c. The disqualification is necessary to prevent continuing, detrimental effects upon the proceedings.
Nevertheless, as discussed above, Drouet’s rule 2-100 violation is not in itself sufficient reason for disqualification. The trial court must also conclude that disqualification is necessary to prevent continuing, detrimental effects upon the proceedings. (Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 607.) Here, the record supports such a finding.
A detrimental effect upon the proceedings has already occurred due to Drouet’s contact with the 11 Concurring Members. Drouet used the witness statements to support his own failed motion to disqualify respondents’ counsel. Based on these witness statements, Drouet claimed that Monje and Dake, Braun & Monje “engaged in unethical misconduct through an egregious and willful misuse of the discovery process, ” committed perjury, and covered up “plaintiffs’ fabrication of key corroborating documents as well as plaintiffs’ counsel’s misconduct in filing a lawsuit for at least eleven former plaintiffs ‘Concurring Members’ so far, which Mr. Monje and his offices did not represent and were not authorized to file a lawsuit against SIKH CENTER.”
Drouet also used the witness statements to unsuccessfully move for an issue sanction. Drouet again claimed that respondents produced fabricated bylaws and a fabricated membership voting list; provided untruthful deposition testimony; and falsely represented that counsel represented all of the Concurring Members. (Grewal v. Guru Nanak Mission Sikh Center (Dec. 21, 2009, F057339).)
Considering the positions Drouet has taken and the motions he has filed based on his ex parte contact with the 11 Concurring Members, it is reasonable to conclude that his continued representation of appellants would detrimentally affect the proceedings. Drouet has injected himself into, and interfered with, the attorney-client relationship between Dake, Braun & Monje and the Concurring Members and there is no indication that he will cease using the information he improperly obtained. In fact, such information cannot be unlearned. (Chronometrics, Inc. v. Sysgen, Inc., supra, 110 Cal.App.3d at pp. 607-608.) Accordingly, the trial court did not abuse its discretion when it disqualified Drouet and The Morrison Law Group.
DISPOSITION
The order is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: Ardaiz, P.J., Gomes, J.