Responsible Citizens v. Superior Court, F018604

• Decision Date: 01 July 1993
• Docket Number: No. F018604,F018604
• Citation: 20 Cal.Rptr.2d 756,16 Cal.App.4th 1717
• Court: California Court of Appeals Court of Appeals
• Parties: RESPONSIBLE CITIZENS et al., Petitioners, v. The SUPERIOR COURT of Fresno County, Respondent, David ASKINS et al., Real Parties in Interest.

Page 756

20 Cal.Rptr.2d 756

16 Cal.App.4th 1717

RESPONSIBLE CITIZENS et al., Petitioners, v. The SUPERIOR COURT of Fresno County, Respondent David ASKINS et al., Real Parties in Interest.

No. F018604.

Court of Appeal, Fifth District, California.

July 1, 1993.

Rehearing Denied July 26, 1993.

Review Denied Sept. 16, 1993.

[16 Cal.App.4th 1720] John C. Gabrielli, Richard L. Harriman, Harriman & Gabrielli, Modesto, for petitioners.

No appearance for respondent.

J. Steven Lempel, Phillip S. Cronin, County Counsel, Philip M. Jay, Deputy County Counsel, Fresno, for real parties in interest.

OPINION

THAXTER, Associate Justice.

We hold here that an attorney representing a partnership does not necessarily have an attorney-client relationship with an individual partner for purposes of applying the conflict of interest rules. Whether such a relationship exists turns on finding an agreement, express or implied, that the attorney also represents the partner.

Respondent Superior Court of Fresno County disqualified Harriman & Gabrielli (H & G) from representing petitioners Responsible Citizens, a California nonprofit public benefit association, and Radley Reep (Citizens) in a proceeding in that court against the County of Fresno, the Fresno County Board of Supervisors (County), and real parties in interest David Askins and Karen Askins (jointly, Askins). When H & G filed the underlying proceeding on behalf of Citizens, it also represented, in entirely unrelated matters, a general partnership in which Karen Askins was a member.

Citizens seeks a writ of mandate directing respondent court to vacate the disqualification order. We conclude that because the order was based on the court's legal conclusion that representation of a partnership automatically creates an attorney-client relationship with the individual partners, the writ should issue directing the court to reconsider the matter and determine if an agreement to represent Karen Askins should be implied from the circumstances surrounding H & G's representation of the partnership.

FACTS AND PROCEDURAL HISTORY

In 1989, H & G began representing Citizens in their efforts to oppose a sand and gravel surface mining project. By October 1991, H & G learned that Citizens planned to oppose another such project operated by David Askins, pursuant to a conditional use permit approved by County (CUP 2488).

Also in October 1991, Richard Harriman of H & G was contacted by Karen Askins, who had been referred to him by a Chowchilla broker, regarding a real estate matter unrelated to the CUP 2488 matter. Askins sought legal services on behalf of Westside Land Office (Westside). Harriman claims Karen Askins told him she was "with" Westside and that he "already knew, mostly from listening to radio ads, that a woman named Donna Pride was [Westside's] licensed broker." He assumed Karen Askins was an employee of Westside, although he does not deny that she may have referred to Westside as "my business."

In contrast, Karen Askins specifically avers that she told Harriman, during the course of their business relationship, that Westside was her business and that she was one of the owners. In fact, Westside was a general partnership composed of Karen Askins and Myrtice Wilson. Donna Pride was the firm's licensed broker responsible for supervising the professional activities of its unlicensed personnel, but she did not have an ownership interest.

According to Harriman, when he was first contacted by Karen Askins he asked whether she was related to David Askins, and she replied that David was her husband. Harriman "felt uneasy about providing legal representation to her because of the potential conflict of interest" and explained to Karen Askins that H & G was representing Citizens in opposing CUP 2488.

Harriman states that he "requested a waiver of the potential conflict before providing legal representation," but Karen Askins "assured [him] there was no basis for a conflict of interest" because her husband's Karen Askins concedes that she had a conversation with Harriman concerning his firm's representation of Citizens, but according to her, Harriman stated any legal action regarding CUP 2488 would be taken against the County and never advised her that she and her husband would be named as real parties in interest in any litigation filed by Citizens concerning the CUP 2488 matter, or that Citizens would seek attorneys fees, costs, or other judicial relief from her and her husband. She further states that Harriman did not advise her to seek independent counsel, he did not give her any written explanation of his firm's representation of Citizens and any potential consequences it might have to her and her husband, and he did not request or obtain a written consent from her regarding any possible dual representation. Harriman does not contradict these allegations.

business "was completely separate from her own activities with" Westside. Based on this information, Harriman agreed to represent Westside.

During November and December 1991, H & G provided legal service to Westside regarding a disclosure, waiver, and hold harmless agreement in a pending real estate escrow. Westside apparently was the real estate agent for one or both of the parties to the escrow. H & G billed Westside $105, plus out-of-pocket costs, for its services. The bill was paid by a Westside check signed by Karen Askins and Myrtice Wilson on December 11, 1991. In May 1992 Karen Askins and Harriman had at least one telephone conversation regarding another real estate matter in which Westside was involved, and on June 3 and June 5, 1992, Harriman received two fax transmissions from Karen Askins on Westside's letterhead. No further services were rendered. None of the matters as to which Karen Askins consulted H & G on behalf of Westside was in any way related to the CUP 2488 matter.

On April 29, 1992, Citizens, represented by H & G, filed the underlying litigation, a petition for writ of mandate and complaint for injunctive relief. The pleading names County as respondent and defendant, and Askins as real party in interest. In addition to a writ of mandate, the pleading sought injunctive relief to prohibit "respondents and real parties in interest from carrying out the project [CUP 2488] until all applicable laws have been complied with; and an award of attorney's fees under [Code of Civil Procedure] Sec. 1021.5, and Section 800 of the Government Code."

On or about June 29, 1992, Askins filed a motion to disqualify H & G from representing Citizens in the underlying litigation. Citizens opposed the motion. Declarations in support and opposition were submitted by Karen Askins and Harriman. On August 14, 1992, the superior court granted the motion and issued an order disqualifying H & G. Citizens then moved for reconsideration and for relief under Code of Civil Procedure section 473. After hearing, that motion was denied by order signed on September 28, 1992.

Citizens sought relief from this court on October 13, 1992. As directed by us, Askins filed a response and opposition briefing, and on January 19, 1993, we issued an order to show cause. Askins submitted supplemental opposition briefing, and County joined in Askins' briefing.

DISCUSSION

At the outset we should stress what this case does not involve. There is no claim that H & G obtained any confidential information, in its representation of Westside, which is material to the CUP 2488 matter. Neither is there any claim that H & G ever rendered any service to Karen Askins regarding the CUP 2488 matter or any other matter involving her personal, as opposed to partnership, interests.

The disqualification order rests solely on the lower court's determination that an attorney-client relationship existed between H & G and Karen Askins. The issue presented is whether Karen Askins, by reason of H & G's representation of Westside, was a "client" of H & G when H & G concurrently represented Citizens. If the answer to this inquiry is affirmative, H & G was properly disqualified. I. Disqualification of Counsel-General Considerations

Courts have authority to order disqualification of counsel pursuant to Code of Civil Procedure section 128, subdivision (a)(5). (Higdon v. Superior Court (1991) 227 Cal.App.3d 1667, 1671, 278 Cal.Rptr. 588.) The power is frequently exercised on a showing that disqualification is required under professional standards governing avoidance of conflicts of interest or potential adverse use of confidential information. (See, e.g., Truck Ins. Exchange v. Fireman's Fund Ins. Co. (1992) 6 Cal.App.4th 1050, 8 Cal.Rptr.2d 228 and In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 283 Cal.Rptr. 732.) Violation of a disciplinary rule may justify disqualification. (Higdon v. Superior Court, supra, 227 Cal.App.3d at p. 1672, 278 Cal.Rptr. 588; cf. Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 303, 254 Cal.Rptr. 853 [suggesting disqualification is not necessarily warranted for violation of a specific disciplinary rule].)

A per se or automatic disqualification rule applies when counsel's representation of one client is adverse to the interests of another current client. (Truck Ins. Exchange v. Fireman's Fund, supra, 6 Cal.App.4th at pp. 1056-1060, 8 Cal.Rptr.2d 228.) When the current representation is adverse to the interests of a former client, though, disqualification may be necessary only if the attorney, by reason of the former representation, obtained confidential information material to the current representation. If there is a "substantial relationship" between the two representations, courts presume that confidences which may have value in the current representation were disclosed in the first representation. (Ibid.; see also H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 280 Cal.Rptr. 614; Western Continental Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, 261 Cal.Rptr. 100.)

The Rules...