The Sixth District holds that an attorney breaches fiduciary duties by purchasing the interests of the former client’s adversary and attempting to substitute in as the client’s adversary.
Edward Mumbert retained Anthony Pagkas to defend him in an action filed by Delia Styles. Due to Pagkas’s errors, the trial court ordered terminating sanctions against Mumbert. Styles obtained a substantial default judgment against Mumbert. Mumbert filed a legal malpractice action against Pagkas and Pagkas filed a cross-complaint for unpaid fees.
While Mumbert’s appeal on Styles’s judgment was pending, Styles assigned all of her rights to Pagkas and Pagkas attempted to substitute in for Styles to collect the judgment. Pagkas argued he should be able to step into Styles’ position in order to offset any future malpractice award against him.
Mumbert vigorously opposed Pagkas’ motion, arguing that as his former attorney, Pagkas continued to owe him professional duties. The Court of Appeal agreed, holding that Pagkas’ attempt to substitute into Style’s place violated numerous fiduciary duties. For example Pagkas’s ongoing duty to maintain his former client’s confidences precluded his becoming his client’s adversary in the same case.
The Court also held that the proposed substitution violated Rules of Professional Conduct 3-200 (prohibited objectives of employment), 3-300 (obtaining a pecuniary interest adverse to a client), 3-310 (representation of adverse interests), 3-100 (disclosing confidential information of a client) and Business and Professions Code §§6077, 6068(1)(g), 6128, and 6129.
The Court reprimanded Pagkas for his serious misconduct and for violating his ethical duties. Pagkas’ attempt to take an antagonistic position to that of his former client not only failed to protect his client’s confidences, it also undermined public confidence in the entire legal system and made a mockery of the Rules of Professional Conduct. Pagkas and his attorney were sanctioned for continuing to argue there was merit in their position.
Comment: Attorneys’ ethical duties are of the utmost importance and continue after the termination of the representation.