All Publications

December 13, 2011 | Law Alert

Kennedy v. Eldridge 2011 WL 6176199

Download Publication

The Third District upholds disqualification of counsel where the attorney previously represented the adversary’s father in a similar family law dispute and where there was a substantial probably that the attorney would be both witness and advocate in the dispute.

College students Kayla Kennedy and Tyler Eldridge had a son, Calvin.  Tyler’s father Richard Eldridge appeared for Tyler in a custody dispute that quickly deteriorated with cross-accusations of excessive marijuana use and instability. Kayla brought a motion to disqualify Richard from representing Tyler.  She alleged that Richard and his wife Deborah Eldridge practiced law together; represented Kayla’s father in his divorce case; that both attorneys consulted with her stepmother, their employee; that Kayla prepared declarations supporting her father at Deborah’s request; that Kayla worked as a process server for the Eldridge firm; and that as a result Richard had access to her confidential information.

In Tyler’s opposition Richard conceded that his wife and law partner Deborah had represented Kaylas’s father in a child custody dispute, and that at the firm’s request Kayla submitted a declaration.

The trial court granted the motion despite Kayla’s non-client status.  The court reasoned that Richard’s dual role as witness and advocate compromised his ethical duty to maintain the integrity of the judicial process, and that the best interest of Calvin required that Richard not be the advocate for his son against Calvin’s mother.

The Court of Appeal, applying an abuse of discretion standard, found that Kayla had standing to bring the motion despite her non-client status.  A trial court has inherent power to control judicial proceedings.  Disqualification motions involve a conflict between a client’s right to choice of counsel and the need to maintain ethical standards of professional responsibility.  The paramount concern is to preserve public trust in the scrupulous administration of justice and the integrity of the bar. Under California law a non-client can  meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violations where an ethical breach is manifest, glaring, and infects the moving party’s interest in a just and lawful determination of her claims.  A trial court need not permit conflicted counsel to participate in a case merely because neither a client nor a former client has brought a motion.

While mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification it may be considered where the status or misconduct of the attorney will affect the outcome of the proceedings.  For example disqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained confidential information that would likely affect the outcome.  Although Kayla was not a former client, the trial court was concerned that the Eldridges may have acquired confidential facts about Kayla and her family that could be used to Tyler’s advantage.

In a similar case a subsidiary of a corporation contracted with a water district to provide engineering services.  A law firm had a prior client relationship with the parent corporation and currently acted a “monitoring counsel” for the parent corporation overseeing insurance defense attorneys and receiving confidential information about the progress of the cases and the parent corporation’s potential liability on the claims. The law firm sought to act as special counsel for the water district to investigate claims against the corporation’s subsidiary.  Although the subsidiary had never been a client of the law firm, the law firm was disqualified.

The the case did not fit into traditional disqualification theories but it closely resembled a successive representation case. An attorney may be disqualified from acting as an advocate against a former client under the “substantial relationship” test.  The court considers the similarities between the two factual situations, the legal questions posed, the nature and extent of the attorney’s involvement with the cases, and whether information from the prior representation is material to the current employment.  The law firm’s representation of the water district impacted all three elements of the substantial relationship test.

The court also applied a “unity of interests” test considering if the corporation and its subsidiary should be treated as a single unit for purposes of analyzing the conflict.  That court concluded that the law firm-corporation relationship was sufficiently unusual, the substantial relationship test sufficiently close, and the unity of interests test sufficiently unsettled, that the trial court could conclude a conflict of interest existed.

The Court of Appeal found that there was a substantial relationship between the Eldridge firm’s prior representation of Kayla’s father and its current representation of Tyler. In both cases Kayla played a key role, her maturity and emotional stability were subjects of dispute, and the nature and quality of her home environment was an important issue. Information obtained from the Eldridge’s representation of her father could bear on these questions.  The trial court could reasonably find that there was significant danger that the Eldridge firm acquired relevant confidential information about Kayla to which it otherwise would not have had access. Tyler’s evidence about Kayla’s home life may have been gleaned from the Eldridge’s prior representation of her father, as Kayla maintained.  Under the successive representation model Kayla need not even show that Richard actually received confidential information. Rule of Professional Conduce 3-310(E) presumes that confidential information material to the dispute was imparted to the attorney when the nature of the representation suggests such.

In addition, the Court of Appeal held that Kayla and her father should be treated as a single entity.  They had a close relationship, their cases were similar, and there were overlapping factual issues.

A separate reason for disqualification was the conflict posed by the almost inevitable prospect that Richard would act both as a percipient witness and an advocate.  The ABA Model Rule 3.7 precludes the attorney-witness unless the testimony relates to an uncontested issue; the nature and value of legal services rendered in the case; or disqualification would work substantial hardship on the client.

The lawyer-witness is more easily impeachable for bias and thus less effective.  Opposing counsel may be handicapped in challenging the credibility of the lawyer who is the opposing advocate.  The lawyer-witness is in the inappropriate and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

Richard would certainly be a witness about his household, and his responsibility is to tell the truth.  As an advocate Richard’s job is to obtain the best result for Tyler.  These duties conflict with each other yet Richard may not choose between them. Richard had already made representations to the court about pot and tobacco use in his home and the conflict had already become manifest.

Although California’s advocate-witness prohibition embodied in Rule of Professional Conduct 5-210 is limited to jury trials, Rule 1-100 states that the Rules’ prohibitions are not exclusive and expressly permits consideration of ethical rules of other jurisdictions and bar associations. Most of the difficulties inherent in attorney-witness role exist regardless of whether the testimony is before a judge or jury.

There was no reason not to apply ABA Model Rule 3.7.  California Supreme Court precedent firmly embraced the ethical prohibition against an attorney taking on the dual roles of advocate and witness.  The wisdom of the rule was illustrated by this case where Richard sought to undertake multiple, awkward, and conflicting duties.

The Court of Appeal also noted that the multiple and interconnected family entanglements result in a strong appearance of impropriety.  Richard is counsel for his son and litigating against the son’s former girlfriend; his law firm once represented the adverse party’s father in a family law matter where it acquired and used the adverse party’s declaration; he employed the adverse party’s stepmother; he is the grandfather of the child whose best interests are at the center of the controversy; the nature and quality of his household is the subject of the ongoing dispute; and he is a likely percipient witness.

In a criminal case an attorney was disqualified who was the defendant’s sister, the ex-wife of the victim, the mother of three of the percipient witnesses, the sister of one of the defense witnesses, and a potential witness.  Despite the defendant’s waiver, the trial court was properly concerned for the children of the lawyer and the victim and the appearance of justice itself. The attorney’s representation posed a significant threat to her responsibilities to her children, her client, her ex-husband, and to the integrity of the judicial process.

Family law matters deserve particular attention when it comes to maintaining high ethical standards as they delve into the most intimate and personal of human affairs.  This is especially true where the custody of a minor child is involved. The family court’s function to make delicate decisions that promote the child’s best interest could be severely disrupted in a situation where the child’s grandfather might argue for reducing the mother’s time with her child, where counsel could wind up both litigating and testifying about what goes on in his household, and where Richard’s self-interest could skew the legal advice he gives to his own son. Nothing about the representation lent itself to the best interest of the child.

Comment: The fact that the court allowed a non-party to disqualify an adversary’s counsel should not be seen as a license to use disqualification as a strategic litigation tool.  The unique facts of this unfortunate family law matter led to the court’s exercise of its inherent power to control the proceedings to prevent the parties from further harming the best interests of the child.

Practice Area: Lawyers & Judges Defense Group
Attorney: Jennifer A. Becker

View All Publications