Opinion
No. C 00-01105 JSW.
September 13, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER TO SHOW CAUSE WHY DEFENDANTS' COUNSEL SHOULD NOT BE DISQUALIFIED
Now before the Court is Plaintiff Richard A. Canatella's motion for an order to show cause why counsel for Defendants Ronald W. Stovitz, Judith A. Epstein, Madge S. Watai, Richard A. Honn, Patrice E. McElroy, Alban I. Niles, Joann M. Remke, Robert M. Talcott, James E. Herman and Michael Nisperos, Jr. (collectively "Bar Defendants") should not be disqualified for violations of California Rule of Professional Conduct 3-310(C).
Having carefully reviewed the parties' papers and considered their arguments and relevant legal authority, and good cause appearing, the Court hereby DENIES Canatella's motion.
LEGAL STANDARD
Motions to disqualify counsel are strongly disfavored. Visa U.S.A. v. First Data Corp., 241 F. Supp. 2d 1100, 1104 (N.D. Cal. 2003), citing Gregori v. Bank of America, 207 Cal. App. 3d 291, 300-01 (1989) ("[M]otions to disqualify counsel often pose the very threat to the integrity of the judicial process that they purport to prevent."); In re Marvel, 251 B.R. 869 (Bankr. N.D. Cal. 2000), aff'd 265 B.R. 605 (N.D. Cal. 2001) ("A motion for disqualification of counsel is a drastic measure which courts should hesitate to impose except when of absolute necessity. They are often tactically motivated; they tend to derail the efficient progress of litigation."). Such requests for disqualification "should be subjected to particularly strict judicial scrutiny." Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045, 1050 (9th Cir. 1985) (citations omitted). In reviewing a motion to disqualify counsel, the district court must make "a reasoned judgment and comply with the legal principles and policies appropriate to the particular matter at issue." Visa U.S.A., 241 F. Supp. 2d at 1104, citing Gregori, 207 Cal. App. 3d at 300.
ANALYSIS
Canatella contends that, because it appears Defendant Judge Richard A. Honn may not have been informed by counsel for the Bar Defendants that he was a party to this action or that they represented him, counsel for the Bar Defendants ("Bar Counsel") violated California Rule of Professional Conduct 3-310(C) and should therefore be disqualified from further representation in this case.
Rule 3-310(C) requires that a member of the Bar "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 client 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."
Canatella's claim that Bar Counsel's representation of Judge Honn presents a conflict of interest founders on the question of standing. The requirements for Article II standing, necessary for any party to seek relief from a federal court, are that the party have personally suffered from an "injury in fact," which is causally related to the conduct in issue and redressable by a favorable decision of the court. Colyer v. Smith, 50 F. Supp. 2d 966, 968 (C.D. Cal. 1999), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The burden is on the party seeking relief to establish these "irreducible constitutional minimum" elements with respect to the particular issues the party wishes to have decided. Id. The standing doctrine also embraces limits on the exercise of federal jurisdiction "such as the general prohibition on a litigant's raising another person's legal rights." Colyer, 50 F. Supp. 2d at 968.
As a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the former client moves for disqualification. Id. at 969. Although the Ninth Circuit has not squarely addressed whether a non-client may raise an objection to counsel, the Colyer court adopted the majority rule that allows only former and current clients standing to raise an objection to opposing counsel. However, the Colyer court incorporated an exception to the strict rule which allows a third party standing to object if the litigation will be so infected by the presence of opposing counsel so as to impact the moving party's interest in a just and lawful determination of its claims. Id. at 971-72; see also Deca View Distribution Co. v. Deca View Asia Corp., 2000 WL 1175583 (N.D. Cal. 2000) at *10. In a case where the ethical breach is so severe, manifest and glaring that it "obstructs the orderly administration of justice," the party who finds his claims so obstructed has standing to request disqualification. Colyer, 50 F. Supp. 2d at 971-72.
Canatella contends that because there is multiple representation in this case and because some, but not all, of the parties may wish to settle with him, there is a possibility of conflict between the defendants. This is Canatella's only line of reasoning which even obliquely references how a potential conflict of interest may impact his interest in a just and lawful determination of his claims.
It is undisputable that the Bar Defendants have only been sued in their official capacities. ( See Second Amended Complaint at ¶ 4.) A suit against individuals in their official capacity is "only another way of pleading an action against an entity of which the officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity," not as a suit against the officials personally, for "the real party in interest is the entity." Id. at 166. With regard to Canatella's claims for prospective injunctive relief to prevent enforcement of the challenged statutes, State Bar employees cannot individually decide to cease enforcement because such action is barred by Article III, section 3.5 of the California Constitution. Further, with respect to Canatella's prayer for relief to recover for attorney's fees under 42 U.S.C. Section 1983, the Court remains unpersuaded that one or more of the Bar Defendants would settle out of the lawsuit and leave the remainder in the action.
In his prayer for relief in the Second Amended Complaint, Canatella requests attorney's fees and expenses under 42 U.S.C. Section 1988. ( See Second Amended Complaint at Prayer, ¶ E.) Having made no claim under Section 1988, the Court assumes Canatella makes a claim for relief under 42 U.S.C. Section 1983. ( See id. at ¶ 42.)
Canatella must show an "invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Colyer, 50 F. Supp. 2d at 973, citing Lujan, 504 U.S. at 560. Having failed to so demonstrate any potential or actual conflict of interest, Canatella's motion for an order to show cause why defendants' counsel should not be disqualified for violations of California Rule of Professional Conduct 3-301(C) is DENIED.
Canatella requests that the Court take judicial notice of an unsigned letter allegedly sent from the State Bar to a Mr. Bradford E. Henschel. The document is not relevant to the Court's analysis and, further, is not judicially noticeable under Federal Rule of Evidence 201. Therefore, Canatella's request to take judicial notice in reply to opposition to motion for order to show cause why defendants' counsel should not be disqualified is DENIED.