Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. P190819, Gerald C. Jessop, Judge.
McDONALD, J.
Peter E. Preovolos (Peter) appeals an order granting the motion of his brother Theodore N. Preovolos (Ted) to disqualify Peter's counsel, the law firm of Preovolos & Associates, ALC, and all attorneys in that firm (Counsel), in the proceedings on Ted's petition to determine the validity of a trust amendment signed by Peter and Ted's mother before her death. On appeal, Peter contends the trial court abused its discretion by granting Ted's motion because: (1) there is insufficient evidence to support the court's finding Counsel had formerly represented Ted regarding a family partnership; and (2) Counsel's former representation of Ted is not substantially related to Counsel's representation of Peter in the instant action.
FACTUAL AND PROCEDURAL BACKGROUND
Ted and Peter are brothers. They are the only children of Fofo D. Preovolos (Mother), who died in December 2005.
In April 2006, Ted filed a petition (Petition) to determine the validity of a July 2005 amendment (Amendment) by Mother of the Fofo D. Preovolos Family Trust (Trust), which disinherited Ted as a Trust beneficiary. The Petition alleged the Amendment was invalid because: (1) Mother did not have the requisite capacity to execute the Amendment; and (2) her execution of the Amendment was not an act of her free will but instead was caused by the undue influence of Peter and/or his son Athanasios K. Preovolos (Thanasi).
In June 2006, Ted filed a motion to disqualify Counsel from representing Peter in the proceedings on the Petition, arguing Counsel had formerly represented Ted regarding his estate planning and his limited partnership interest in the Preovolos Family Limited Partnership (Partnership). In support of that motion, Ted submitted his declaration, stating in part:
"2. Thanasi . . ., the principal in the firm of Preovolos & Associates, ALC, is my nephew. . . .
"3. Thanasi's father is my brother, Peter . . . . [¶] . . . [¶]
"6. Peter filed a Response to the Petition prepared by Thanasi's law firm, Preovolos and Associates.
"7. Thanasi has admitted that he represented [Mother] as well, and drafted and oversaw the execution of the [Amendment] for her that disinherited me in favor of his father. [Citation.]
"8. I am a current and former client of Preovolos and Associates and have never consented in writing to the firm's representation of Peter in this case.
"9. Thanasi prepared an estate plan for my wife and me in 1997. I paid Thanasi $800 for his services as our lawyer.
"10. Thanasi prepared an amendment to our estate plan in 2001.
"11. Thanasi sent me a letter in November, 2004 regarding my estate plan. A copy of the letter is attached as Exhibit A. At all stages of the planning process, I provided confidential information to Thanasi so that he could properly prepare my estate plan. As part of the process, we discussed [Mother's] estate plan, what I would inherit from [Mother], what would happen if I was not alive when [Mother] died and other issues related to [Mother].
"12. Thanasi has also represented me for approximately 12 years in connection with a family limited partnership in which my brother, Thanasi, and I are involved. [Mother] was a general partner in the partnership before her death and Thanasi represented her as well. Thanasi disavowed his continued representation of me as a limited partner in that matter in January, 2005. During Thanasi's representation of me in the partnership, he acquired more confidential information. As part of the process, we discussed the various interests in the partnership, including [Mother's interest,] and what would happen to the interests upon a partner's death. Thanasi also represented the partnership and assisted in its administration. [¶] . . . [¶]
"14. Disputes regarding the family partnership are currently being litigated in a separate lawsuit in a superior court in San Francisco County . . . ."
Ted attached to his declaration a letter from Thanasi dated November 23, 2004, in which Thanasi enclosed a copy of the schedule of assets from the trust he prepared for Ted and his wife. The letter stated: "At the time that we prepared your trust, we did not receive all of your asset information in order to complete your Schedule of Assets. While some of the information is listed, the Schedules are incomplete as [they] lack many of your assets. For example, you will notice that there are not bank, brokerage, or IRA accounts listed." The letter requested that Ted and his wife provide Thanasi with certain additional information regarding their assets so that he (Thanasi) could "make the necessary changes to [their] Schedule of Assets."
Peter filed a memorandum opposing Ted's motion to disqualify Counsel and submitted his declaration and Thanasi's declaration in support of the opposition.
On September 8, 2006, after issuing a tentative ruling and hearing argument of counsel, the trial court issued a written order granting Ted's motion to disqualify Counsel in the proceedings on the Petition. The order stated in part:
"Even if Ted is not considered a current client of Preovolos & Associates, ALC based on [Thanasi's] representation of Ted relative to his estate plan and the [Partnership], Ted is considered a former client for purposes of the Rules of Professional Conduct Rule 3-310(E). The evidence before the Court unequivocally establishes that Ted was a former client of [Thanasi] relative to his estate plan. [Citation.] Although [Peter] suggests that Thanasi . . . did not represent Ted relative to the [Partnership] on or after 1/18/05 [citation], Ted states in his declaration that 'Thanasi has also represented me for approximately 12 years in connection with a family limited partnership.' [Citation.] . . . Thanasi does not directly dispute this assertion -- his assertion that 'Preovolos & Associates has never represented [Ted] in any action . . . [or] in connection with the action now before this Court' [citation] does not serve to defeat the evidence presented by Ted that he was a former client of the firm relative to both his estate plan and the family partnership prior to January 2005. [¶] . . . [¶]
"Although [Counsel] deny obtaining any 'confidential information material to the employment' [citation], Ted has presented evidence that they did, indeed, obtain such confidential information. [Citation.] . . .
"The instant Petition seeks to invalidate the [Amendment] on the basis of incapacity and undue influence on the part of [Peter] and his son [Thanasi]. It is undisputed that [Thanasi] drafted the Amendment at issue [citation], which would serve to disinherit Ted based at least in part [on] the lawsuit initiated by [Ted] with regard to the [Partnership] and the 'claims, disputes or liabilities in any way connected with the Lawsuit or the [Partnership].' [Citation.] As such, the [Partnership] dispute and related issues are, indeed, related to the instant action and the 'employment' [of] Preovolos & Associates to represent [Peter] in the instant action.
"Ted has presented sufficient evidence under these circumstances that the firm 'obtained confidential information material to [the firm's] employment' in the instant litigation, and it is undisputed that Preovolos & Associates did not obtain the informed written consent of his former client Ted relative to his firm's representation of Peter in the instant action in violation of Rule 3-310(E). . . ."
Peter timely filed a notice of appeal.
DISCUSSION
I
Disqualification of Former Counsel Generally
"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.' [Citations.] Ultimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. [Citation.] . . . The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process. [Citations.]" (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145-1146 (SpeeDee).) "[A] basic obligation of every attorney is '[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.' [Citation.]" (Id. at p. 1146.)
To protect the confidentiality of communications made between an attorney and his or her former client, California Rules of Professional Conduct, rule 3-310(E) provides:
All references to rules are to the Rules of Professional Conduct.
"A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment."
Pursuant to that rule, the "enduring duty to preserve client confidences precludes an attorney from later agreeing to represent an adversary of the attorney's former client unless the former client provides an 'informed written consent' waiving the conflict. [Citation.] If the attorney fails to obtain such consent and undertakes to represent the adversary, the former client may disqualify the attorney by showing a ' "substantial relationship" ' between the subjects of the prior and the current representations. [Citation.] To determine whether there is a substantial relationship between successive representations, a court must first determine whether the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation. [Citation.] If the former representation involved such a direct relationship with the client, the former client need not prove that the attorney possesses actual confidential information. [Citation.] Instead, the attorney is presumed to possess confidential information if the subject of the prior representation put the attorney in a position in which confidences material to the current representation would normally have been imparted to counsel. [Citations.] When the attorney's contact with the prior client was not direct, then the court examines both the attorney's relationship to the prior client and the relationship between the prior and the present representation. If the subjects of the prior representation are such as to 'make it likely the attorney acquired confidential information' that is relevant and material to the present representation, then the two representations are substantially related. [Citations.] When a substantial relationship between the two representations is established, the attorney is automatically disqualified from representing the second client. [Citations.]" (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847 (Cobra).)
When an attorney's former representation of a client "was direct, the only issue before the trial court [is] whether there [is] a substantial relationship between what [the attorney] did for [the client] during [that prior representation] and what [the attorney] seeks to do for [the second/current client]. [Citation.] Successive representations will be substantially related 'when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.' [Citation.]" (Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal.App.4th 671, 679 (Farris), quoting Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 712 (Jessen).) Farris concluded there is "no substantial difference between the Jessen formulation and that found in section 132 of the Restatement Third of the Law Governing Lawyers (2002), which provides in relevant part that the present representation will be deemed to be 'substantially related' to the prior representation if (1) the present representation 'involves the work the lawyer performed' during the prior representation, or (2) 'there is a substantial risk that [the present representation] will involve the use of information acquired in the course of [the prior representation], unless that information has become generally known.' [Citation.]" (Farris, at p. 680.)
In reviewing a trial court's ruling on a motion to disqualify counsel, we generally apply the abuse of discretion standard. (Cobra, supra, 38 Cal.4th at p. 848; SpeeDee, supra, 20 Cal.4th at p. 1143.) "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.]" (SpeeDee, supra, at pp. 1143-1144.)
II
Trial Court's Finding That Counsel Formerly Represented Ted Regarding Partnership
Peter contends the evidence is insufficient to support the trial court's finding that Counsel formerly represented Ted regarding the Partnership.
In so arguing, Peter apparently does not challenge the sufficiency of the evidence to support the trial court's finding that Counsel formerly represented Ted regarding his estate planning. Peter's opening brief does not contain any substantive legal argument on that issue. Accordingly, he has waived any such contention. His apparent attempt to raise that argument in his reply brief is untimely and therefore we do not address it. In any event, were we to address that issue, we would conclude there is substantial, if not overwhelming, evidence to support the trial court's finding that Counsel represented Ted regarding his estate planning.
A
When an appellant challenges the court's factual findings based on a purported lack of sufficient evidence to support those findings, we apply the substantial evidence standard of review. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on another ground as noted in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668; Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1166.) In applying the substantial evidence standard of review, we "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence[,] this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. . . . [Citations.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) "[E]ven if the [finding] of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the [finding] is supported by evidence which is 'substantial,' that is, of ' "ponderable legal significance," ' ' "reasonable in nature, credible, and of solid value . . . ." ' [Citations.]" (Ibid.) The testimony, or declaration, of a single witness may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Nevertheless, substantial evidence " 'is not synonymous with "any" evidence.' " (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
"Moreover, we defer to the trier of fact on issues of credibility. [Citation.] '[N]either conflicts in the evidence nor " 'testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment [or order], for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " [Citations.] . . . ' [Citation.]" (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
"Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]" (Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 651.) Furthermore, " '[w]here different inferences may reasonably be drawn from undisputed evidence, the conclusion of the [trier of fact] must be accepted by the appellate court.' " (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 301.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]" (Roddenberry, supra, at p. 652.)
B
Based on our review of the entire record, we conclude there is substantial evidence to support the trial court's implied finding that Counsel formerly represented Ted regarding the Partnership. Ted's declaration in support of his motion to disqualify Counsel stated in part: "Thanasi has also represented me for approximately 12 years in connection with a family limited partnership [i.e., the Partnership] in which my brother, Thanasi, and I are involved. [Mother] was a general partner in the [P]artnership before her death and Thanasi represented her as well. Thanasi disavowed his continued representation of me as a limited partner in that matter in January, 2005. During Thanasi's representation of me in the partnership, he acquired more confidential information. As part of the process, we discussed the various interests in the [P]artnership, including [Mother's interest,] and what would happen to the interests upon a partner's death. Thanasi also represented the [P]artnership and assisted in its administration." (Italics added.) Because the testimony (whether given "live" or by declaration) of a single witness may constitute substantial evidence (In re Marriage of Mix, supra, 14 Cal.3d at p. 614), Ted's declaration provides substantial evidence to support the court's finding that Counsel formerly represented him regarding the Partnership. The statement in Ted's declaration is substantial, and not "scant," evidence.
As Peter notes, although the trial court did not expressly find that Counsel formerly represented Ted regarding the Partnership, it implicitly so found when it stated: "[Thanasi's] assertion that 'Preovolos & Associates has never represented [Ted] in any action . . . [or] in connection with the action now before this Court' [Declaration of Thanasi Preovolos, ¶ 6, italics added] does not serve to defeat the evidence presented by Ted that he was a former client of the firm relative to both his estate plan and the family partnership prior to January of 2005." (Italics added.)
Peter apparently argues the trial court erred by ignoring a portion of Thanasi's declaration in which Thanasi stated he had not "given any legal advice to [Ted] with regard to his interests in the [P]artnership, or [Mother's] estate." However, because we make all presumptions in favor of affirming the trial court's order, we presume the court considered, but rejected as incredible or unpersuasive, that portion of Thanasi's declaration. Given the directly contradictory evidence in Ted's declaration and Thanasi's declaration on that factual question, the trial court, charged with weighing the evidence before it, reasonably found Ted's declaration to be more credible and persuasive and therefore implicitly rejected Thanasi's declaration to the extent he stated he had not given Ted any legal advice regarding his interest in the Partnership.
Peter also argues Ted's declaration did not "make sense" because another attorney representing Ted wrote a January 2005 letter to Peter and Thanasi regarding various Partnership issues. However Ted's declaration states: "Thanasi disavowed his continued representation of me as a limited partner in that matter in January, 2005." The trial court could reasonably infer that Counsel represented Ted until January 2005 when it discontinued its representation of Ted regarding his interest in the Partnership. In so construing the evidence, the court presumably, and rationally, concluded Ted's retention of another attorney in or about January 2005 did not disprove that Counsel represented Ted during the approximate 12-year period before that time.
Peter also argues: "It is clear that while Thanasi may have been representing the interests of Peter and [Mother] with respect to the [P]artnership, it doesn't necessarily follow that he was representing Ted's interests." In so arguing, Peter either misconstrues or misapplies the applicable substantial evidence standard of review. In applying that standard, we "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Jessup Farms v. Baldwin, supra, 33 Cal.3d at p. 660.) In this case, the trial court could reasonably infer from Ted's declaration that Counsel represented Ted regarding the Partnership until January 2005. The court did not err by drawing inferences different from those suggested by Peter. In any event, the trial court presumably did not rely on Counsel's apparent representation of Peter and Mother regarding the Partnership in finding Counsel also represented Ted regarding the Partnership. Rather, it relied on Ted's declaration that directly stated Counsel represented him for 12 years regarding the Partnership. That declaration provided substantial evidence in support of the court's finding.
Finally, Peter cites the case of Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717 as support for his argument that the evidence is insufficient to support the trial court's finding that Counsel formerly represented Ted regarding the Partnership. In that case, the court held that an attorney's representation of a partnership does not automatically create an attorney-client relationship with each individual partner of that partnership. (Id. at p. 1731.) Rather, an attorney who represents a partnership also represents an individual partner if the circumstances of the particular case show the existence of an express or implied agreement regarding representation. (Responsible Citizens v. Superior Court, supra, 16 Cal.App.4th at pp. 1732-1733.) However, Responsible Citizens does not show Counsel did not represent Ted regarding the Partnership in this case. There is substantial evidence (i.e., Ted's declaration) to support the trial court's finding that Counsel formerly represented Ted regarding the Partnership. Alternatively stated, considering the circumstances in this case, the court could reasonably infer there was an implied, if not express, agreement that Counsel would represent Ted regarding his interest as an individual partner of the Partnership. Ted's retention of a new attorney in or about January 2005 does not show otherwise.
Responsible Citizens stated: "Without any attempt at being exhaustive, we can identify some factors which might support, or undercut, implication of an attorney-client relationship with an individual partner in any particular case. The type and size of the partnership obviously have a bearing, as already noted. So do the nature and scope of the attorney's engagement by the partnership. The kind and extent of contacts, if any, between the attorney and the individual partner might be important factors. The same is true as to the attorney's access to information (e.g., partnership financial information) relating to the individual partner's interests." (Responsible Citizens v. Superior Court, supra, 16 Cal.App.4th at p. 1733.)
III
Substantial Relationship Between Counsel's Former and Current Representations
Peter contends the trial court abused its discretion by granting Ted's motion to disqualify Counsel from representing him (Peter) in the instant proceedings on the Petition because Counsel's former representation of Ted is not substantially related to Counsel's representation of him (Peter) in the instant proceedings.
Although the heading in Peter's opening brief argues Counsel's representation of Ted was unrelated to, and not in conflict with, Counsel's representation of Peter in the instant proceedings, we construe Peter's argument as essentially arguing the requisite substantial relationship for Counsel's disqualification does not exist in the circumstances of this case.
A
Although the trial court did not expressly refer to the "substantial relationship" test for determining whether successive representations by counsel require his or her disqualification, the court apparently was aware of and applied that test when it concluded Counsel must be disqualified under rule 3-310(E) from representing Peter in the instant proceedings. In its written order, the court discussed the circumstances of Counsel's former representation of Ted regarding his estate planning and interest in the Partnership, and Counsel's representation of Peter in the instant proceedings on the Petition. The court noted: "It is undisputed that [Thanasi] drafted the Amendment at issue [citation], which would serve to disinherit Ted based at least in part [on] the lawsuit initiated by [Ted] with regard to the [Partnership] and the 'claims, disputes or liabilities in any way connected with the Lawsuit or the [Partnership].' " The court then concluded: "[T]he . . . Partnership dispute and related issues are, indeed, related to the instant action and the 'employment' [of] Preovolos & Associates to represent [Peter] in the instant action." Accordingly, the court implicitly concluded a substantial relationship was shown, requiring the disqualification of Counsel from representing Peter in the instant proceedings on the Petition.
B
Pursuant to rule 3-310(E) and the "substantial relationship" test, disqualification of counsel is required when his or her successive representations are substantially related, unless counsel obtains the former client's informed written waiver of that conflict of interest. (Cobra, supra, 38 Cal.4th at p. 847.) Although there have been various descriptions of the substantial relationship test, successive representations generally "will be substantially related 'when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.' [Citation.]" (Farris, supra, 119 Cal.App.4th at p. 679.) Alternatively stated, there is a substantial relationship between a counsel's successive representations if " 'there is a substantial risk that [the present representation] will involve the use of information acquired in the course of [the prior representation], unless that information has become generally known.' [Citation.]" (Id. at p. 680.)
"If [as in this case] the former representation involved . . . a direct relationship with the client, the former client need not prove that the attorney possesses actual confidential information. [Citation.] Instead, the attorney is presumed to possess confidential information if the subject of the prior representation put the attorney in a position in which confidences material to the current representation would normally have been imparted to counsel. [Citations.]" (Cobra, supra, 38 Cal.4th at p. 847.) Alternatively stated, "[i]f the relationship between the attorney and the former client is shown to have been direct--that is, where the lawyer was personally involved in providing legal advice and services to the former client--then it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship." (Jessen, supra, 111 Cal.App.4th at p. 709.)
C
Based on our review of the record, we conclude the trial court did not abuse its discretion by concluding Counsel must be disqualified from representing Peter in the instant proceedings on the Petition. The record supports the court's implied finding there is a substantial relationship between Counsel's former representation of Ted and Counsel's current representation of Peter in the instant proceedings. Because the record supports a finding that Thanasi personally provided Ted with legal advice and services regarding his estate planning and interest in the Partnership, Counsel had a direct relationship with Ted. (Jessen, supra, 111 Cal.App.4th at p. 709.) Therefore, it is presumed confidential information was obtained by Counsel from Ted. (Ibid.) Furthermore, Counsel is presumed to have received confidential information from Ted material to the instant proceedings on the Petition because the record supports a finding that "the subject of the prior representation put [Counsel] in a position in which confidences material to the current representation would normally have been imparted to [C]ounsel." (Cobra, supra, 38 Cal.4th at p. 847.)
Counsel's former representation of a client (e.g., Ted) regarding his or her interest in the Partnership would normally have resulted in a client (e.g., Ted) imparting certain confidential information to Counsel that would be material to Counsel's current representation of another client (e.g., Peter) in the instant proceedings on the Petition. The trial court could reasonably conclude that a client in Ted's position would normally confide in, and disclose private information and concerns to, his or her counsel regarding the client's partnership interest in a small/family limited partnership (e.g., the Partnership). Those confidential disclosures could include information and/or concerns regarding the physical health and mental well-being of other partners (e.g., Mother) and the dynamics of the partners' relationships, including whether one partner (e.g., Peter) exercises, or is in a position to exercise, influence over another partner (e.g., Mother) regarding the Partnership or otherwise. That confidential information would be material to Counsel's representation of another client (e.g., Peter) in the instant proceedings on the Petition. The Petition seeks to invalidate the Amendment signed by Mother based on her alleged incapacity and/or undue influence exercised on her by Peter and/or Thanasi. Information on Mother's physical health and mental well-being is directly relevant to her capacity to execute the Amendment.
Furthermore, information regarding the dynamics of the partners' relationships, including whether Peter exercised, or was in a position to exercise, influence over Mother regarding the Partnership or otherwise is directly relevant to the issue of whether Mother signed the Amendment because of undue influence imposed on her by Peter and/or Thanasi. Of particular relevance, as the trial court noted, is the fact that Mother apparently signed the Amendment disinheriting Ted because, in part, he filed an action against the other partners (e.g., Mother and Peter) regarding the Partnership. Also, Thanasi drafted the Amendment signed by Mother. Therefore, Counsel is presumed to have confidential information obtained from Ted, a former client, material to Counsel's representation of Peter, a current client, in the instant proceedings on the Petition. Accordingly, there is a substantial relationship between Counsel's successive representations of Ted and Peter. As quoted above, "[s]uccessive representations will be substantially related 'when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.' [Citation.]" (Farris, supra, 119 Cal.App.4th at p. 679, quoting Jessen, supra, 111 Cal.App.4th at p. 713.) Based on the record in this case, the trial court could rationally conclude information material to the evaluation or accomplishment of Counsel's former representation of Ted regarding his interest in the Partnership is also material to the evaluation, settlement or accomplishment of Counsel's current representation of Peter in the instant proceedings on the Petition. (Farris, at p. 679; Jessen, at p. 713.)
Likewise, it can be presumed an attorney's client (e.g., Ted) normally would disclose confidential information regarding his or her financial condition (e.g., assets) in the course of discussing and/or effecting an estate plan. Therefore, the trial court could have reasonably found Ted provided Counsel with confidential information regarding his financial condition in obtaining legal advice and services regarding his estate plan, which information presumably would pose a substantial risk of use by Counsel in representing Peter in the instant proceedings on the Petition (e.g., in advising Peter regarding settlement or choosing among certain defense strategies). (Farris, supra, 119 Cal.App.4th at p. 680.)
Because there is a substantial relationship between Counsel's former representation of Ted and Counsel's current representation of Peter, the trial court did not abuse its discretion by granting Ted's motion to disqualify Counsel from representing Peter in the proceedings on the Petition. (Cobra, supra, 38 Cal.4th at pp. 847-848; SpeeDee, supra, 20 Cal.4th at p. 1143.)
DISPOSITION
The order is affirmed. Ted is entitled to costs on appeal.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.