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August 4, 2008

McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn. (2008) 165 Cal.App.4th 960

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The Second District holds that there was no improper contact when an attorney spoke to a pro per litigant who was being assisted by counsel.

Denise McMillan sued the Shadow Ridge at Oak Park Homeowner’s Association, who was represented by Nicolas Paulos and his firm.  McMillan’s attorney filed a dismissal after an oral agreement to settle.  McMillan disavowed the settlement and retained new counsel to set aside the settlement.  After the settlement was set aside, McMillan substituted in pro per.

Attorney John A.  Schlaff sent a letter to Paulos informing him that he would be assisting McMillan in a limited fashion but would not be substituting in as attorney of record.  In connection with a discovery dispute Paulos called McMillan to advise her of a pending ex parte motion and to meet and confer about discovery issues.  They also discussed other issues including Schlaff’s formal entry into the case, upcoming court dates, a scheduled mandatory settlement conference, and the possibility of settlement.  McMillan confirmed that she was still the attorney of record and that Schlaff was not planning to substitute into the case.  Susequently, Schlaff filed a motion seeking to disqualify Paulos asserting his conversation with McMillan violated rule 2-100 of the Rules of Professional Conduct.  The trial court denied the motion given McMillan’s status as counsel of record.

Rule 2-100 precludes attorney communication directly or indirectly about the subject of the representation with a represented party absent consent of the represented party’s counsel.  There is a statutory scheme for written records of representation so parties may be certain with whom they are authorized to deal.  At the time that Paulos spoke to McMillan, the record of the court showed McMillan as her own attorney.  Schlaff’s oral statement that he was representing McMillan in a limited capacity was insufficient notice that Paulos could not contact McMillan.  A bright line test is essential to the ethical boundaries of an attorney’s conduct.

A pro se litigant may divide the duties or representation as would any other lawyer, but she may not insulate herself from contact by the court or adverse counsel.  Rule 2-100 is intended to preserve the attorney-client relationship, which can be accomplished by McMillan declining to speak with Paulos or referring him to Schlaff should she wish to do so.

Even if Paulos had violated Rule 2-100, the communication that McMillan finds objectionable was the divulging of a “bottom line” settlement figure.  However, nothing said in the conversation would have any effect on either the outcome of the litigation or on the way in which the litigation was going to proceed.

Finally, the trial court’s decision not to impose a penalty for a violation of a Rule of Professional Conduct was proper because such matters are within the purview of the State Bar.

Comment: Courts rarely accommodate litigants who choose to represent themselves in pro per and then expect to be treated different than other litigants.


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