Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Linda Lancet Miller, Judge. Affirmed, Super. Ct. No. 04D000159.
Hersh, Mannis & Bogen, Neal R. Hersh, Judy L. Bogen; Law Offices of John R. Schilling, John R. Schilling; Snell & Wilmer, Richard A. Derevan and Marc L. Turman for Appellant.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, Shara Beral Witkin; and Kolodny & Anteau for Respondent.
OPINION
RYLAARSDAM, J.
Arnold H. Simon (husband) appeals from an order denying his motion to disqualify the law firm of Kolodny & Anteau from representing Debra A. Simon (wife) in the parties’ marital dissolution proceeding. He contends Kolodny & Anteau should be disqualified because the firm violated Rules 5-200 and 5-310(B) of the Rules of Professional Conduct by participating in giving assistance to a witness in possession of information potentially favorable to their client’s case. We affirm the trial court’s decision because, even if Kolodny & Anteau was guilty of misconduct, disqualification is not an appropriate remedy under the facts of this case.
FACTS
Wife petitioned to dissolve her 18-year marriage to husband, retaining Kolodny & Anteau and the law firm Schwamb & Stabile to represent her. One issue in this proceeding concerned the status of a business named Daks, LLC (Daks), which held title to several pieces of real property, including a residence located at 22832 Skyview Way. Wife claimed Daks and its assets constituted community property subject to division by the court. Husband claimed the parties had entered into an enforceable prenuptial agreement and sought an order confirming Daks as his separate property.
In September 2004, a woman named Cindy Rocker contacted Kolodny & Anteau. Lauren Petkin, a partner at Kolodny & Anteau, spoke with Rocker by telephone. Rocker provided Petkin with the following information: Husband had been financially supporting her since 2002; she lived in the Skyview Way residence, which she claimed husband had purchased with cash; husband had signed a one-page agreement promising to sell the Skyview Way residence to her for $2.2 million; and “she has ‘information that will blow the prenuptial agreement to pieces’ and ‘blow this case apart.’” Petkin claimed that Rocker said “she sought [Kolodny & Anteau’s] assistance . . . in locating an attorney to represent her with respect to her ‘agreement’ with [husband] on the Skyview . . . property and to seek restraining orders against [husband] due to his recent verbal threats,” in return for which “she would testify in court against [husband] . . . .”
Petkin made several unsuccessful attempts to arrange a meeting with Rocker. On September 3, she faxed a letter to Rocker on Kolodny & Anteau’s letterhead, stating “[w]e will endeavor to assist you with finding and providing a lawyer to represent you to obtain . . . restraining orders against [husband] and in connection with the property located [on] . . . Skyview Way . . ., so long as you provide us . . . truthful and valid information to assist [wife] in connection with . . . the[] pending dissolution matter.”
During a court hearing on October 25, the parties stipulated to a court order to sell the Skyview Way property and to place the proceeds into a blocked account. By then, Kolodny & Anteau had served Rocker with subpoenas to appear for a deposition and at the hearing. Rocker failed to appear for the deposition, but did appear and testify in court as a rebuttal witness at a hearing on temporary support.
In November, wife filed a motion to compel Rocker’s testimony, setting the matter for a January 14, 2005 hearing. In a declaration, Petkin admitted “Rocker contacted us again to seek names of attorneys who may potentially represent her in connection with her claimed interest in the Skyview Way property,” and Kolodny & Anteau “provided Ms. Rocker names of numerous attorneys . . ., one of whom was Peter T. Hermes,” a former member of the law firm.
In early January 2005, Rocker sued husband and Daks for breach of contract, quiet title, and declaratory relief seeking damages or specific performance of the agreement to sell the Skyview Way property to her. She also filed a notice of lis pendens on the property. Attorney Hermes represented Rocker. Kolodny & Anteau subsequently paid Hermes $58,000 as a “[l]oan” for his services in representing Rocker.
At the January 14 hearing, the court granted wife’s motion to compel Rocker to appear for a deposition.
A few days later, wife and Rocker executed a four-page agreement prepared by Kolodny & Anteau. In the agreement, Rocker represented that she possessed lawfully obtained documents concerning husband’s “bank accounts,” “business ventures,” “monies expended[]” “during [the] marriage . . . for and on [her] and other persons,” other “children fathered by [husband],” and information “related to the invalidity of the parties’ purported premarital agreement . . . .” Rocker also represented “that she entered into a written agreement with [husband]” to purchase the Skyview Way property, “she has not . . . rescind[ed] th[e] agreement or in any way negatively affect[ed] her right to acquire [the] property,” “there is no legitimate, factual defense arising from any conduct [by her] . . . that would defeat her right to [the] property,” and “she will pursue [the] lawsuit to conclusion and not enter into any settlement with [husband]” or “assign, transfer or otherwise convey her rights to the . . . property . . . .”
As consideration to “obtain[] the documentation that [Rocker] has,” wife agreed to loan Rocker money “to retain and employ counsel . . . with regard” to her civil litigation and harassment actions against husband, plus “up to $10,000 per month” if “the court orders [Rocker] to vacate the Skyview property during the pendency of her lawsuit,” with the “monies . . . repaid from the . . . sale” of the Skyview property. In addition, wife “[g]uarantee[d]” Rocker “that, if she loses the Skyview lawsuit . . ., [she] will be paid up to the full amount of the equity she would have received if the house was hers . . ., but in no event more than $1,800,000.”
Finally, while the agreement declares it “does not provide for” or “require . . . testimony by [Rocker],” in the event Rocker “testifies, . . . [she] shall testify truthfully and . . . produce all documents requested which she has in her possession or under her control . . . .”
On January 19, Kolodny & Anteau filed, on wife’s behalf, an ex parte application to set aside that portion of the October 25 order authorizing the sale of the Skyview Way residence. The application was supported by declarations from Petkin and wife. Both claimed that, at the time of the October 25 hearing, they had been “unable to obtain specific information from . . . Rocker about [her] claimed interest in the Skyview Way real property,” and relied on “representations . . . by [husband]” made under oath that “Rocker did not have a valid claimed interest in and/or to the . . . property.” (Underscoring omitted.) Citing Rocker’s recently filed lawsuit and husband’s allegedly false representations about a sale agreement with her, wife sought relief from the stipulation as to the Skyview Way residence. The trial court denied the application.
In July 2005, husband moved to disqualify Kolodny & Anteau from continuing to represent wife in the dissolution action, claiming it had engaged in “a series of deceptive, unethical and unprofessional tactics . . . perpetrated against [husband] and more importantly, against th[e] [c]ourt.” Both parties submitted declarations from attorneys with experience concerning lawyer professional responsibility matters.
After a hearing the court denied the motion. The trial judge focused on whether there was a “violation of the rules [of] professional conduct[, whether] there’s [a] continuing effect o[n the] litigation[,] and whether there’s an unfair advantage.” Finding wife obtained “an advantage” in obtaining documents from Rocker, the court nonetheless concluded “[t]hey appear to be the kind that are proper to be turned over and discovered during a dissolution of marriage proceeding,” “there [was] no unfair advantage.”
As for Kolodny & Anteau’s alleged violation of Rule 5-310(B) of the Rules of Professional Conduct, the court noted the agreement between wife and Rocker “smells” but, relying on the opinion expressed by wife’s expert witness, found “it[] technically[] does not violate that rule.” Concerning rule 5-200 of the Rules of Professional Conduct, the court found the evidence “a little more troubling,” particularly on counsel’s “failure to disclose the agreement at the time [he] made the motion to set aside the Skyview property stipulation,” but noted “that request was denied.” Finally, the court noted “[t]he primary continuing [e]ffect on this litigation . . . is the inability of [wife’s law] firm and [husband’s law] firm to full[]y trust each other.”
DISCUSSION
1. Introduction
Rule 5-310 of the Rules of Professional Conduct declares that, with exceptions for expert witnesses and paying other witnesses their expenses or loss of compensation from employment, “A member shall not: [¶] . . . [¶] (B) Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case.” The rule’s purpose is to “prohibit a lawyer from paying or offering to pay money or other rewards to witnesses in return for their testimony, be it truthful or not, because it violates the integrity of the justice system and undermines the proper administration of justice. Quite simply, a witness has the solemn and fundamental duty to tell the truth. He or she should not be paid a fee for doing so.” (Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Assn. (S.D.Fla. 1994) 865 F.Supp. 1516, 1526, fn. omitted; see also In re Robinson (1912) 136 N.Y.S. 548, 556 [“the payment of a sum of money to a witness to testify in a particular way, the payment of money to prevent a witness’s attendance at a trial, the payment of money to a witness to make him ‘sympathetic’ with the party expecting to call him . . . are all payments which are absolutely indefensible . . . . The payment of a sum of money to a witness to ‘tell the truth’ is as clearly subversive of the proper administration of justice as to pay him to testify to what is not true”].)
Rule 5-200 of the Rules of Professional Conduct declares that, “In presenting a matter to a tribunal, a member: [¶] . . . [¶] (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law . . . .” “‘“Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.”’ [Citations.] ‘Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.’ [Citation.]” (Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 980.)
On appeal, husband repeats his claims that Kolodny & Anteau violated rules 5-310(B) and 5-200 of the Rules of Professional Conduct and “that disqualification is the only appropriate remedy for these rules violations.” We conclude that, even if Kolodny & Anteau violated these rules, the firm’s disqualification under the facts of this case is not justified.
2. Disqualification of Counsel
Code of Civil Procedure section 128, subdivision (a)(5) declares courts have “the power to . . . [¶] . . . [¶] 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.” This statute has been construed as authorizing a court to disqualify an attorney from participating in a legal matter. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846; DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 831.)
“‘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.] As we have explained, however, ‘[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.’ [Citation.]” (City and County of San Francisco v. Cobra Solutions, Inc., supra, 38 Cal.4th at p. 846.) “Other factors to consider in deciding a motion to disqualify counsel include the attorney’s interest in representing the client, the financial burden on the client to replace disqualified counsel, and the possibility that the disqualification motion is being used as a litigation tactic. [Citations.]” (Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 62.)
“On appeal, a trial court’s decision concerning a disqualification motion will not be disturbed absent an abuse of discretion. [Citation.]” (DCH Health Services Corp. v. Waite, supra, 95 Cal.App.4th 829, 832.) But “‘[t]he trial court’s exercise of this discretion is limited by the applicable legal principles and is subject to reversal when there is no reasonable basis for the action. [Citations.]’ [Citation.]” (Ibid.)
The trial court found Kolodny & Anteau’s actions did not violate
rules 5-310(B) and 5-200 of the Rules of Professional Conduct. But in doing so, the court improperly relied on the questionable opinion testimony of an attorney as to application of these rules. While the Evidence Code allows the admission of expert opinion testimony, it cannot “authorize an ‘expert’ to testify to legal conclusions in the guise of expert opinion. Such legal conclusions do not constitute substantial evidence. [Citation.]” (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841; but see Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093 .) Thus, “an expert witness . . . may not state interpretations of the law, whether it be of a statute, ordinance or . . . regulation promulgated pursuant to a statute [citations]. [Citation.]” (California Shoppers Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 67.)
Kolodny & Anteau’s conduct was questionable. The focus of the agreement it prepared for wife and Rocker was on wife’s acquisition of the documentation Rocker possessed that would be relevant in the marital dissolution proceedings, but it also contains representations concerning Rocker’s personal knowledge on some relevant issues and, although it does not require Rocker to testify, the parties signed the agreement after the court had issued an order requiring Rocker to appear for a deposition. (Civ. Code, § 1647 [“A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates”].) It also appears that Kolodny & Anteau was less than forthcoming in failing to fully disclose its knowledge of and participation in Rocker’s civil action against husband when seeking to set aside the stipulation to sell the Skyview Way residence.
But, even assuming Kolodny & Anteau violated the Rule of Professional Conduct, that would not necessarily mandate disqualification. (Hetos Investments, Ltd. v. Kurtin (2003) 110 Cal.App.4th 36, 47.) “The case law and the legal literature persuade us that it is relatively unimportant whether the status or misconduct claimed to warrant disqualification is proscribed by a particular ethical norm or disciplinary rule or may be characterized as a failure to avoid the appearance of impropriety. Since the purpose of a disqualification order must be prophylactic, not punitive, the significant question is whether there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court. . . . Disqualification is inappropriate . . . simply to punish a dereliction that will likely have no substantial continuing effect on future judicial proceedings. [Citation.] There are other sanctions which in that situation must suffice, including imposition of attorneys fees and costs incurred . . . as a result of the misconduct [citation] and reporting of the misconduct to the State Bar . . . .” (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 308-309; see also Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 467.)
As the court noted, Kolodny & Anteau’s effort to set aside the stipulation to sell the Skyview Way residence failed. Furthermore, wife did not acquire any documentation from Rocker that she was not otherwise entitled to receive in this action. Finally, as the trial court found, Rocker was apparently playing both sides to see which one would give her the better deal. Apparently, wife “won” the bidding contest. Her victory appears to have been short-lived because Rocker’s credibility has been destroyed by subsequent events in this litigation.
Husband cites cases from other states that have permitted disqualification of counsel for paying fact witnesses to testify. But these cases were decided under the American Bar Association’s model rules that allow disqualification for an appearance of impropriety. That is not the test in California. (Hetos Investments, Ltd. v. Kurtin, supra, 110 Cal.App.4th at p. 47.)
Thus, under the facts of this case, we conclude the trial court properly exercised its discretion in denying husband’s motion to disqualify wife’s counsel.
DISPOSITION
The order is affirmed. Respondent shall recover her costs of suit on appeal.
WE CONCUR: SILLS, P. J., O’LEARY, J.