Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Ct. No. 99J0263, George L. Orndoff, Judge.
Dias Law Firm and Michael A. Dias for Objectors and Appellants.
Peter D. Moock, County Counsel, and Johannah L. Hartley, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
OPINION
CORNELL, J.
This appeal arises out of an order made by the juvenile court in a dependency case. K.S., the mother of the dependent children, filed a motion to disqualify the Dias Law Firm (the Law Firm) from representing her parents, J.D. and D.D. (collectively the maternal grandparents), in a dispute concerning the guardianship of the children. The maternal grandparents appeal from the juvenile court’s order granting K.S.’s motion. We affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
A petition pursuant to Welfare and Institutions Code section 300 was filed in 1999 alleging that A.M. and K.B. came within the provisions of the statute. The children’s mother, K.S., was involved in a relationship that included numerous instances of domestic violence and, as a result, had turned to illegal drugs to cope with her problems. The children’s maternal grandparents were appointed as guardians and, eventually, the dependency action was terminated.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
In August 2007, K.S. completed her drug treatment program and apparently had reunited with her children. She filed a motion to terminate the guardianship after she became concerned with the manner in which her parents were raising her children. The maternal grandparents hired the Law Firm to contest the motion.
K.S. filed a motion to disqualify the Law Firm. In her motion, K.S. alleged that she and her husband had contacted the Law Firm in 2006 regarding a dispute with their insurance carrier after a house fire. The two met with Joseph M. Simoes and paid a $75 fee for his services. The meeting lasted approximately two hours and included discussions regarding the fire, the family, K.S.’s children, their finances, and other items relevant to the guardianship proceedings.
K.S. married her husband, D.S., after the meeting with the Law Firm. At the time of the meeting, the two were living in a house owned by D.S.
In opposition to the motion, the Law Firm submitted the declaration of Simoes. Simoes admitted that office records confirmed that he met with D.S. regarding an insurance dispute. He stated, however, that he did not recall meeting with either D.S. or K.S., nor could he recall the actual conversation. Nor could he recall whether K.S. attended the meeting. These admissions make his statements about what did or did not occur in the meeting meaningless. For example, Simoes stated the meeting lasted approximately 30 to 60 minutes, was limited to a discussion regarding the insurance dispute, and neither K.S. nor D.S. mentioned the children during the meeting. Since Simoes could not recall the meeting, these statements had no evidentiary value and should have been omitted from the declaration. The only competent evidence of what occurred at the meeting was the facts included in K.S.’s declaration.
The juvenile court granted the motion to disqualify the Law Firm after hearing arguments on the matter. The maternal grandparents appeal from this order.
DISCUSSION
I. Motion to Dismiss as Moot
After the maternal grandparents’ opening brief was filed, the Kings County Human Services Agency (the Agency) filed a motion to dismiss the appeal as moot. The motion asserted that the underlying petition filed by K.S. had been resolved. The Agency therefore argued that this matter was moot because there were no matters pending before the juvenile court.
As the Agency conceded in its reply brief, this issue is not moot because there may be additional hearings in the future for which the maternal grandparents may wish to retain the Law Firm to represent them. Accordingly, we deny the Agency’s motion to dismiss the petition as moot.
II. Abuse of Discretion
The maternal grandparents argue the juvenile court abused its discretion when it granted the motion to disqualify the Law Firm.
“Generally, a trial court’s 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 court’s express or implied findings supported by substantial evidence. [Citations.] When substantial evidence supports the trial court’s factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. [Citation.] However, the trial court’s discretion is limited by the applicable legal principles. [Citation.] Thus, where there are no material disputed factual issues, the appellate court reviews the trial court’s determination as a question of law. [Citation.] In any event, a disqualification motion involves concerns that justify careful review of the trial court’s exercise of discretion. [Citation.]” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144 (SpeeDee Oil).)
“Where the potential conflict is one that arises from the successive representation of clients with potentially adverse interests, the courts have recognized that the chief fiduciary value jeopardized is that of client confidentiality. Thus, where a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a ‘substantial relationship’ between the subjects of the antecedent and current representations. [¶] The ‘substantial relationship’ test mediates between two interests that are in tension in such a context—the freedom of the subsequent client to counsel of choice, on the one hand, and the interest of the former client in ensuring the permanent confidentiality of matters disclosed to the attorney in the course of the prior representation, on the other. Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney’s representation of the second client is mandatory; indeed, the disqualification extends vicariously to the entire firm. [Citations.]” (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283-284.)
The maternal grandparents make two arguments. First, the maternal grandparents claim K.S. did not enter into an attorney-client relationship with the Law Firm. Second, because this case involves an allegation of successive representation, the maternal grandparents argue there was not a substantial relationship between the respective subjects of the two representations.
The maternal grandparents’ arguments fail to take into consideration the deferential review to which we are limited. “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] This standard of review affords considerable deference to the trial court provided that the court acted in accordance with the governing rules of law. We presume that the court properly applied the law and acted within its discretion unless the appellant affirmatively shows otherwise. [Citations.]” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.) Whether we would have made a different decision is irrelevant.
Returning to the maternal grandparents’ first argument, the principles applicable to deciding whether an attorney-client relationship has been formed were summarized in SpeeDee Oil. “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 relationship’s early stages, as noted in Beery v. State Bar (1987) 43 Cal.3d 802: ‘“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.” [Citation.]’ (Beery v. State Bar, supra, 43 Cal.3d at pp. 811-812; cf. Flatt, supra, 9 Cal.4th at pp. 281-282, fn. 1 and accompanying text.) [¶] 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. [Citations.]” (SpeeDee Oil, supra, 20 Cal.4th at pp. 1147-1148.)
We cannot say that the juvenile court exceeded the bounds of reason when it determined that an attorney-client relationship was formed when K.S. and her husband consulted with the Law Firm. K.S. stated in her declaration that she was present, she discussed her family, her children, her daughter, her finances, and “many other items that are relevant to the guardianship proceedings.” K.S. stated the meeting lasted for approximately two hours. The juvenile court reasonably could infer from this information that confidential information was exchanged between K.S. and the Law Firm for the purposes of providing legal advice to K.S. and her husband. K.S. was not required to be more specific because, if she had been, confidential information would have become part of the court record, thus destroying the privilege. Moreover, the Law Firm did not provide any competent evidence to refute the facts recited in K.S.’s declaration. The juvenile court did not abuse its discretion when it concluded that this consultation resulted in the formation of an attorney-client relationship.
We also reject the second prong of the maternal grandparents’ argument because we cannot say that the juvenile court exceeded the bounds of reason when it concluded that a substantial relationship existed between the Law Firm’s representation of K.S. and the maternal grandparents. K.S. admitted she and her husband consulted with the Law Firm because they were having difficulty with her husband’s insurance company after their house was damaged by a fire. A superficial analysis would suggest that the issues related to the insurance company were unrelated to issues related to the guardianship of K.S.’s children. The substantial relationship test, however, requires more than a superficial analysis.
“‘[T]he substantial relationship test is “intended to protect the confidences of former clients when an attorney has been in a position to learn them.”’ [Citation.] [¶] The ‘court should “focus on the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney’s involvement with the cases.”’ [Citation.] It should consider ‘“ … the attorney’s possible exposure to formulation of policy or strategy.” [Citation.]’ [Citation.] Where there is a substantial relationship, it is presumed the attorney had access to confidential information. [Citation.]” (Knight v. Ferguson (2007) 149 Cal.App.4th 1207, 1213.)
The issue in the motion regarding the children filed by K.S. was whether her parents properly were exercising their responsibilities as the guardians to K.S.’s two teenage daughters. K.S. stated in her declaration that when she met with the Law Firm, she discussed her family, presumably including her mother and father, and that she discussed her daughter, who was living with her at the time. Indeed, the fire that resulted in K.S.’s consultation with the Law Firm apparently was referred to in the opposition to K.S.’s motion prepared by the Law Firm on the maternal grandparents’ behalf. Under these circumstances, we cannot say the juvenile court exceeded the bounds of reason when it concluded that the Law Firm was presented with confidential information at this meeting that could have been utilized by the maternal grandparents in opposing K.S.’s motion.
In its declaration in opposition to the disqualification motion, the Law Firm asserted that any information about the fire was obtained from the maternal grandparents, not from the personal knowledge of any attorney at the Law Firm.
III. Sanctions for Disobeying a Court Order
The juvenile court disqualified the Law Firm on October 10, 2007. This order was not stayed when the maternal grandparents filed a notice of appeal. (§ 395, subd. (a)(1).) In direct violation of this order, the Law Firm prepared and filed the maternal grandparents’ opening brief on January 10, 2008, and their reply brief on May 27, 2008.
On April 1, 2008, we issued an order that, in part, required the Law Firm to explain “on what authority it may represent appellants in this matter in light of the order granting recusal of the [Law Firm] and what if any recourse this court should take in light of the [Law Firm’s] apparent violation of the trial court’s recusal order.”
The Law Firm replied in a letter brief filed on April 14, 2008, by asserting the order was stayed automatically by operation of law when the notice of appeal was filed. Unfortunately, the authorities relied on by the Law Firm apply to civil actions, not actions pursuant to section 300 et seq. Accordingly, these cases do not address section 395, subdivision (a)(1). Finally, the Law Firm argued that it acted at all times in good faith because it believed the juvenile court’s order was stayed.
On May 1, 2008, the Agency filed its respondent’s brief. In this brief, the Agency took no position on the propriety of the juvenile court’s order. The Agency did, state, however, that “[j]uvenile dependency proceedings are not automatically stayed by perfecting an appeal,” and cited section 395, subdivision (a)(1). The Law Firm ignored this citation when it filed the maternal grandparents’ reply brief on May 27, 2008.
It appears to us that the primary purpose the Agency filed the brief was because it wanted to ensure that the resolution of the underlying dispute, K.S.’s motion to remove the maternal grandparents as the guardians of her children, would not be disturbed. The resolution of this appeal will not affect any order other than, perhaps, the order disqualifying the Law Firm. Specifically, our opinion does not affect the resolution of K.S.’s motion in the juvenile court, an issue that is not before us.
The Law Firm’s unfamiliarity with applicable code sections is troubling. But even more troubling is its refusal to abide by the juvenile court’s order even after our admonishment and after the statutory authority cited in the Agency’s brief. The Law Firm apparently does not realize that it is violating a court order because it has not acknowledged the existence of section 395, subdivision (a)(1). The Law Firm is confusing shoddy research with acting in good faith.
While sanctions certainly are appropriate, we believe the necessarily negative experience the Law Firm will take from this appeal will serve the same purpose. We will order no sanctions.
DISPOSITION
The disqualifying order is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.