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In re Marriage of Eyster

California Court of Appeals, Third District, Placer
Jul 2, 2008
No. C055881 (Cal. Ct. App. Jul. 2, 2008)

Opinion


In re the Marriage of GAIL ELIZABETH EYSTER and CHARLES DAVID EYSTER. GAIL ELIZABETH EYSTER, Respondent, v. CHARLES DAVID EYSTER, Appellant. C055881 California Court of Appeal, Third District, Placer July 2, 2008

NOT TO BE PUBLISHED

Super. Ct. No. SDR27808

BLEASE, Acting P. J.

In this action for dissolution of marriage brought by Gail Elizabeth Eyster (Gail), her husband Charles David Eyster (Charles) appeals from the order granting her motion to disqualify his attorney David Kindopp and the law office of Duncan M. James.

Because the parties share the same last name, we shall refer to them by their given names in the interests of clarity and brevity. We mean no disrespect.

While in solo practice, Duncan M. James represented Gail in a dissolution proceeding in 1981. Gail and Charles married in 1990 and in the summer of 2006, Charles, also an attorney, went to work for Mr. James’ firm. When Gail served him with a petition for dissolution that same summer, he hired Mr. James’ firm to represent him in that proceeding. Six months later, Gail moved to disqualify the firm from representing Charles on the grounds Duncan James had represented her in a prior dissolution and the two representations had a substantial relationship requiring disqualification.

In granting the motion, the trial court relied primarily on its finding that the nature of a dissolution proceeding is intensely personal. It also found there was a substantial relationship between the prior and current representations because both involved property issues that turn on conflicts in the relationship, allegations that one party took financial advantage of the other, and questions of credibility.

On appeal, Charles contends, inter alia, that the trial court erred in granting the motion based upon subjective factors rather than upon an objective analysis of the legal and factual similarities between the prior and current representations.

Charles raises two other points of error, holding an evidentiary hearing and admitting the testimony of Gail’s legal expert. Because we are reversing the order on another ground, we need not address these two points.

We agree that the trial court erred by granting the motion. Because Gail failed to file a respondent’s brief, we conducted an independent review of the record and now find the record fails to show the prior and current representations share substantial legal and factual similarities. We shall therefore reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

Viewing the evidence in the light most favorable to the order (Cal Pak Delivery, Inc. v. United Parcel Service (1997) 52 Cal.App.4th 1, 10), we set forth the pertinent facts as stated in the declarations and the evidence adduced at the hearing.

In 1981, while in solo practice, Duncan M. James represented Gail in a contested proceeding for dissolution of marriage from Jerry Treadway. The matter commenced around February 1981 and was resolved after trial and decision rendered by the court in September of that year. The issues involved were primarily financial, including claims one party took financial advantage of the other, and issues of credibility. According to Gail, the issue of spousal abuse was raised but provided no verification that a restraining order was obtained.

Nine years later, on March 10, 1990, Gail and Charles were married. They had one child together. In early July 2006 and with Gail’s full support, Charles accepted employment with the law firm of Duncan M. James (the Firm) and began working for the Firm on August 1, 2006.

However, they separated on July 14, 2006, and Gail filed a petition for dissolution of marriage on July 20, 2006. Charles, who was represented by David Kindopp, an associate in the Firm, filed and served his response on August 30, 2006.

On January 17, 2007, Gail filed a motion to disqualify Mr. Kindopp and the Firm from representing Charles. At the evidentiary hearing on the motion, Gail’s legal expert, Steven Lewis, testified that there are common issues in the two proceedings because they both deal with financial disputes and advantage and issues of credibility. Due to the nature of a dissolution matter, Gail’s intensely personal attorney/client relationship and her articulation to Mr. James of her fears, strategies and concerns in the Treadway matter could be used to advance Charles’s position in the present matter. Since Mr. James knows “what makes [Gail] tick,” he knows what emotional factors drive her in evaluating, prosecuting, settling or accomplishing her objectives in the present case. Mr. Lewis found it difficult to conceive of a circumstance where a lawyer could represent a client in one dissolution and then represent his or her spouse in another dissolution matter without disqualification occurring. The confidential information obtained in the first proceeding could reasonably be used to “wear down” the party on the substantive issues in the subsequent proceeding, by using strategies that take into account her anticipated reaction, frailties and vulnerabilities, and what drives her in the prosecution, settlement and accomplishment of her objectives in the present case.

The trial court granted the motion to disqualify the entire Firm, basing its ruling primarily on its finding that the nature of a dissolution proceeding is intensely personal. The court further found that both the prior and current proceedings involved issues relating to property, conflicts in the relationship, allegations that one party took financial advantage of the other, and issues of credibility.

The court rejected Charles’s claim of laches based upon the length of the delay (only five months) and Gail’s justification for the delay. Nevertheless, the court recognized the financial impact of its decision on Charles and deferred Gail’s request for attorney fees under Family Code section 271 in light of Charles’ testimony he had incurred approximately $50,000 in legal fees.

DISCUSSION

“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 if the trial court’s express or implied findings are 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); Adams v. Aerojet-General Corporation (2001) 86 Cal.App.4th 1324, 1330-1331.)

The trial court has inherent authority “[t]o control in furtherance of justice, the conduct of its ministerial officers . . . .” (Code Civ. Proc., § 128, subd. (a)(5); SpeeDee, supra, 20 Cal.4th at p. 1145.)

Rule 3-310(E) of the State Bar Rules of Professional Conduct prohibits the successive representation of clients with adverse interests without the written consent of both the former and current client. The rule states, “[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.”

Motions to disqualify counsel necessarily involve a conflict between the client’s right to counsel of their choice and the need to maintain ethical standards of professional responsibility. (SpeeDee, supra, 20 Cal.4th at p. 1145.) When disqualification is sought because of successive representation of clients with adverse interests, the trial court must balance the current client’s right to counsel of his choice against the former client’s right to ensure that her confidential information will not be disclosed or used by former counsel. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846 (Cobra).) Other factors to consider are the attorney's interest in representing a client, the financial burden on the client to replace disqualified counsel, and the possibility the motion is being used as an improper litigation tactic. (SpeeDee, supra, 20 Cal.4th at p. 1145.)

The purpose of this rule is to protect the confidential relationship between attorney and client, a relationship that survives the termination of the attorney’s representation. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113; Cobra, supra, 38 Cal.4th at p. 846.)

In cases of successive adverse representation where counsel has failed to obtain written consent, the former client may disqualify the attorney by showing there is “a ‘substantial relationship’ between the former and current representation.” (H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1452 (Ahmanson), quoting Global Van Lines, Inc. v. Superior Court (1983) 144 Cal.App.3d 483, 489; Cobra, supra, 38 Cal.4th at p. 847.)

The test for determining whether a substantial relationship exists between successive representations is criterial. The court must consider (1) the similarities between the two factual situations, (2) the similarities in the legal questions posed, and (3) the nature and extent of the attorney’s involvement with the former and current representations. (Ahmanson, supra, 229 Cal.App.3d at p. 1455.)

If the attorney’s former representation involved a direct and personal relationship with the client, the former client need not prove the attorney possesses actual confidential information. (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 709 (Jessen).) Disclosure of confidential information is conclusively presumed “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.” (Cobra, supra, 38 Cal.4th at p. 847.) In such case, disqualification of the attorney and vicarious disqualification of his or her firm from the current dispute is required as a matter of law. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283.)

Here there is no dispute but that Mr. James’ representation of Gail in the Treadway matter was direct and personal, as he was in solo practice when he personally represented her in that proceeding. We must therefore presume she disclosed confidential information to him in the course of that representation. (Jessen, supra, 111 Cal.App.4th at p. 709.)

Nevertheless, the question remains whether that information is material to the current representation of Charles and that question turns on the strength of the factual and legal similarities between the two cases. (Jessen, supra, 111 Cal.App.4th at p. 709; Cobra, supra, 38 Cal.4th at p. 847 .) This analysis requires a pragmatic and detailed comparison of the factual and legal issues raised in the two representations. (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 564; see also Ahmanson, supra, 229 Cal.App.3d at pp. 1456-1457; Farris v. Fireman’s Fund Ins. Co. (2004) 119 Cal.App.4th 671, 683-684.)

It is not enough to show the former and current representations involve the same general subject matter. (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 711.) Unless information about the former client’s litigation philosophy and practices is material, i.e. it is “‘directly in issue or of critical importance’” in the current representation, it is an insufficient basis for disqualification. (Freemont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 69; compare Farris, supra, 119 Cal.App.4th at pp. 680-681 [coverage counsel for insurer received confidential information material to bad faith insurance suits]; Brand v. 20th Century Ins. Co./21st Century Ins. Co. (2004) 124 Cal.App.4th 594, 606 [coverage counsel for insurer received confidential information concerning the insurer's claims-handling policies and procedures, its litigation strategies, and business practices involving mold infestation claims].)

As the trial court indicated in its statement of decision, it based its ruling primarily on the “more subjective, emotional components of the former relationship between Mr. James” and Gail. We find those “components” are not material to the issues in this case and do not constitute confidential information. Unlike the insurance cases, where knowledge of the insurer’s claims policies and litigation philosophy may be directly relevant to the issue of coverage and bad faith (Farris, supra, 119 Cal.App.4th at pp. 680-681; Brand, supra, 124 Cal.App.4th at p. 606), Gail’s so-called “litigation philosophy” is not relevant to any material issue in dispute. Also not material is knowledge of what makes her “tick” or what her fears, vulnerabilities, and weaknesses were 27 years ago. That standard would bar any subsequent representation by an attorney who directly represented a party in litigation, and that is not the law.

Applying the correct standard, the evidence fails to show the two representations are substantially similar in law or in fact. As to legal issues, the record merely shows generalized similarities between the former and current representations. Both representations arose in the context of a dissolution proceeding and both involve issues relating to property, conflicts in the relationship, allegations that one party took financial advantage of the other, and issues of credibility. However, these are broad and vague matters that may be said of most contentious proceedings for dissolution of marriage.

As to the factual similarities between the two representations, the record fails to show the presence of any material similarities. The former representation took place over 27 years ago, a significant period of time in which people and their finances change. There is no evidence the two representations involve the same property (See Woods v. Superior Court (1983) 149 Cal.App.3d 931, 937 [attorney of a family-owned business should not represent one owner against the other in a dissolution action]) or that the allegations of taking financial advantage were lodged against Gail in both representations or by Gail in both representations. We therefore find the trial court abused its discretion in granting the motion to disqualify Mr. Kindopp and the law offices of Duncan M. James.

DISPOSITION

The order is reversed. Appellant is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: DAVIS, J. MORRISON, J.


Summaries of

In re Marriage of Eyster

California Court of Appeals, Third District, Placer
Jul 2, 2008
No. C055881 (Cal. Ct. App. Jul. 2, 2008)
Case details for

In re Marriage of Eyster

Case Details

Full title:GAIL ELIZABETH EYSTER, Respondent, v. CHARLES DAVID EYSTER, Appellant.

Court:California Court of Appeals, Third District, Placer

Date published: Jul 2, 2008

Citations

No. C055881 (Cal. Ct. App. Jul. 2, 2008)