19-12747 (11th Cir., June 29, 2022). While sanctions for an unsuccessful motion to disqualify are rare, clients (and their counsel) are best protected against the possibility of sanctions for bringing a frivolous motion to disqualify by thoughtfully and carefully researching and analyzing possible conflicts before moving to disqualify. etc), #9 (Tommy is demonstrating increasing maturity; subtle shifts occurring; thrust of efforts be shared; confidential, etc) In considering whether to grant a motion to disqualify a law firm, "the court must weigh the combined effect of a party's right to counsel of choice, an attorney's interest in representing a client, the financial burden on a client of replacing disqualified counsel and any tactical abuse underlying a disqualification proceeding against . when new changes related to " are available. Your subscription has successfully been upgraded. Dept. try clicking the minimize button instead. (Lead Case; Consolidated Action), Jeffrey Mitchell vs Stratus Media Group Inc et al, CLEVE PELL VS THE MONTEBELLO UNIFIED SCHOOL DISTRICT ET AL. Other courts permit disqualification on a different basis, holding that standing is established so long as the lawyer owed a duty of confidentiality to the complaining party and breached it. The California Supreme Court has recognized that a motion to disqualify a party's counsel 6 7 "may implicate several important interests," which must be examined carefully "to ensure that 8 literalism does not deny the parties substantial justice." People ex rel. The plaintiffs counsel, Downtown Los Angeles Law Group attorney, Anthony Werbin, had previously done defense work for Costco. 9 the attorneys interest in representing a client; the financial burden on a client of change of counsel; any tactical abuse underlying a disqualification motion; and. A motion to disqualify tests whether the opposing partys right to counsel of his or her choice, which is an important right, must yield to ethical considerations that affect the fundamental principles of our judicial process. People ex rel. Grounds: A. You will lose the information in your envelope, Motion to Disqualify Counsel 01/22/2018 - Motion to Disqualify Counsel, ~CIV Minute Order - Motion to Disqualify Counsel 10/11/2017 - Motion to Di, BLANCA GUTIERREZ vs. CHRISTINA O'BRIEN, et al, CIV Minute Order - Motion to Disqualify Counsel, CYNTHIA HOLLOWAY VS. GILEAD SCIENCES, ET AL, Motion for Leave 10/07/2019 - Motion to Disqualify Counsel, THOMAS ANTON & ASSOCIATES, INC., A PROFESSIONAL CORPORATION VS ABLIN ET AL, Motion to Disqualify Counsel 04/02/2018 - Motion to Disqualify Counsel, LEE VS WIZARD GAMING, INC. DBA DIAMOND JIM'S CASINO, ~CIV Minute Order - Motion to Disqualify Counsel 11/19/2020 - Motion to Di, Hardeep Bhakhri vs. Ashwani Kumar Bhakhri, et al, ~CIV Minute Order - Motion to Disqualify Counsel 01/26/2021 - Motion to Di, PACIFIC DIVERSIFIED INVESTMENTS, LLC, a California limited liability compa, motion to disqualify MO - Motion to Disqualify Counsel, Motion to Disqualify Counsel 11/08/2019 - Motion to Disqualify Counsel, ~CIV Minute Order - Motion to Disqualify Counsel 07/02/2018 - Motion to Di, VIDA CAPITAL GROUP, LLC. We will email you 12 YI-CHING PAO, an individual, 13 Plaintiff, TENTATIVE RULING RE: MOTION TO DISQUALIFY 14 vs. Moving Party: Plaintiff Cleve Pell Sept. 14, 2020), the court decided a motion to disqualify brought by the defendant in a wage and hour class action. Petrey Wholesale, Inc. v. 17, 2020), the Central District of California decided a motion to disqualify brought by the defendant based on two grounds: (1) a purported conflict based on plaintiffs counsels prior employment by the defendant; and (2) plaintiffs counsels improper receipt of information, procured by communicating with defendants managing agent in an alleged violation of the no contact rule. Second, in Fregoso v. Eat Club, Inc., No. Before Trial (The Rutter Group 2016) 9:382. ORDER GRANTING MOTION TO RECUSE DAVID REPLOGLE, ESQ. Nos. Absent evidence of actual knowledge of material confidential information, both prongs of the test must be satisfied before a Court applies the conclusive presumption of knowledge of such information. The injury must be concrete and particularized, not hypothetical. Id. Only a party who has (or has had) a fiduciary relationship with a lawyer has standing to disqualify the lawyer. If Plaintiff does not file a proper proof of service, the court will discuss a continuance date with the parties at the hearing ..om one to the other. It does not appear that California Rules of Court 3.1362 applies to Plaintiffs Motion because that rule applies to motions brought by counsel. Bank v. Adams (2002) 96 Cal.App.4th 315, 327. Plaintiffs Evidentiary Objections Only a party who has (or has had) a fiduciary relationship with a lawyer has standing to disqualify the lawyer. Specifically, the court concluded that there was no direct adversity as between the two sets of plaintiffs and that, moreover, the affected clients confirmed that they had in effect given their informed written consent to concurrent representation., Finally, the court rejected disqualification based on plaintiffs counsels receipt of privileged emails, noting that counsel had not misused, and would not likely misuse, its knowledge of the privileged communications to gain an unfair advantage., In both Kinchen and Fregoso, the court denied disqualification. BACKGROUND: ET AL. Id. Ct. (1967) 253 Cal.App.2d 703, 707. 6 These decisions serve as a helpful reminder about how to evaluate and analyze conflicts and can help counsel and parties avoid wasting time and resources bringing a meritless disqualification motion. the attorneys interest in representing a client; the financial burden on a client of change of counsel; any tactical abuse underlying a disqualification motion; and. In ruling on a motion to disqualify, the court should weigh: Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126. Motion Hearing set for 8/18/2011 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. On March 1, 2019, Plaintiff filed an ex parte application to request an evidentiary hearing because the declaration of Dr. Mark Skvarna that was submitted in Plaintiffs ex parte application for a trial continuance may have contained a forged signature and been submitted without his k (1) MOTION TO DISQUALIFY COUNSEL; App. In one recent out-of-state case, while denying a motion for disqualification in a patent infringement case, the court evaluated the opposing partys motion for sanctions based on the plaintiffs filing of a purportedly frivolous motion to disqualify. The plaintiff, a, Summary Judgment for Claims Adjusting Agency on a Failure to Settle Claim in Georgia, Ignacio Negrete v. National Unity Insurance Company et. ..motion to compel further responses to special interrogatories; If you wish to keep the information in your envelope between pages, Under the present rule, if a party is willing to accept less effective counsel because of the attorneys testifying, neither his opponent nor the trial court should be able to deny this choice to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process. Reynolds v. Super. Party: Defendants The Montebello Unified School District and The Montebello Unified School District Board of Education First, there must be a substantial relationship between the former representation and the current representation. Ct. (2008) 158 Cal.App.4th 1697, 1711. The purpose of disqualification is not to punish a transgression of professional ethics. A conflict arises when the circumstances of a particular case present a substantial risk that the lawyers representation of the client would be materially and adversely affected by the lawyers own interests or by the lawyers duties to another current client, a former client, or a third person. Notice of Joinder the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. 7 Discussion: [T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them. Kennedy v. Eldridge (2011) 201 Cal.App.4th 1204-1205. of Corp. v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145; Code Civ. Specifically, California Rules of Court, rule 3.1362 (a), a motion to be relieved . Additional sections are $99 each. In a case of first impression, the Eleventh Circuit affirmed the district courts dismissal of an insureds claim for, FMG Attorney Philip Savrin Obtains Affirmance of Summary Judgment on Behalf of Insurance Company in Eleventh Circuit Court of Appeals, Siasim Columbia, LLC, v. Scottsdale Insurance Company, Case No. Rules of Court, rule 3.1362(a), (c), (e), ORDER DENYING PLAINTIFF'S MOTION TO RECUSE POWELL PARTNER'S COUNSEL, BROADWAY PROPERTIES LLC VS. WE PARK, INC. et al, ORDER RE: SELLER DEFENDANTS' MOTION TO RECUSE/DISQUALIFY COUNSEL, 2614 BUCHANAN STREET HOMEOWNERS ASSN., et al VS. GREGORY JOHNSON et al, ORDER RE: MOTION TO RECUSE DEFENDANTS COUNSEL MELINDA JAMES NILI, JAMES RYAN VS. OOC INC., A CALIFORNIA CORPORATION (D.B.A. Replies due . Judge Colleen K. Sterne Given the importance of protecting the clients ability to retain his or her own counsel of choice, such a demonstration requires an evidentiary showing of some actual detriment to the opponent or of injury to the integrity of the judicial process, before the trial court could disqualify the attorney. Hahn Declaration 114546.) [A] highly speculative and tactical interest does not meet the standing requirements. Id. The alternative writ is discharged. Your credits were successfully purchased. The court denied the motion for sanctions, noting, Plaintiffs Motion to Disqualify was supported by some, albeit scant, evidence. The courts apply a two-pronged test to determine whether the court must conclusively presume that an attorney has knowledge of confidential information about a prior client that requires the court to disqualify the attorney from representing a current client adverse to the prior client. 1370707 Santa Barbara County Superior Court TECHNOLOGY, INC., a Taiwan corporation, Cal. [D]isqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety. She frequently lectures throughout the state on attorney ethics. c) Order recusing Plaintiffs counsel Therefore, Sharon argued that his entire firm had a conflict of interest in prosecuting the case against Costco. Sample motion to disqualify opposing counsel in federal court (pursuant California rules professional responsibility). A complaining party who files a motion to disqualify is required to have standing. The courts apply a two-pronged test to determine whether the court must conclusively presume that an attorney has knowledge of confidential information about a prior client that requires the court to disqualify the attorney from representing a current client adverse to the prior client. Ct. (1997) 60 Cal.App.4th 473, 577-582. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: If competent evidence does not establish such a conflict, the attorney is not disqualified for a conflict. Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 425-426. Ct. (2004) 122 Cal.App.4th 17, 23. January 9, 2012 MOVING PARTY: (1) Plaintiffs Robert Warren Jackson and Gregory Bauer; Your recipients will receive an email with this envelope shortly and After acknowledging the competing policy considerations that must be balanced when a motion to disqualify counsel is brought (207 Cal.App.3d at pp. 1 - 2: SUSTAINED. A complaining party who files a motion to disqualify is required to have standing. Matters: (1) Motion of Defendants to Disqualify Gersh Derby as Counsel ..t attached as exhibit A to the motion is deemed served on the parties; plaintiffs shall file the first amended complaint, or arrange that the copy of the first amended complaint lodged with the court be filed, on or before January 13, 2012. (2) NOTICE OF JOINDER; Other courts permit disqualification on a different basis, holding that standing is established so long as the lawyer owed a duty of confidentiality to the complaining party and breached it. In appeal handled by Atlanta Partners Michael Freed and Brian Goldberg, the Eleventh Circuit affirmed the dismissal of a plaintiffs wrongful, FMG Appellate Team Obtains Victory for Nonprofit Corporation in California Court of Appeals, Jason A Bezis v. Livermore Heritage Guild, Case No. Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 409. Your content views addon has successfully been added. TENTATIVE RULING: Nature of Proceedings: Motion the matters involved in both representations are substantially related, and . First Adams v. Aerojet General Corp. (2001) 86 Cal.App.4th 1324, 1331; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 563564. at 1145. Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113. In 2009, Epic settled its claims against Ali 5 Corporation. Motions to disqualify counsel are especially prone to tactical abuse because disqualification imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. (2) NOTICE OF JOINDER; Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356. [W]here an attorneys continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel. Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205. When in doubt, consult with an expert who can help ascertain whether the salient facts and applicable authority support a motion for disqualification. 9 On December 28, 2011, the court appoin SUBJECT: Motion to Disqualify Counsel In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. Motions to disqualify counsel present competing policy considerations. Ct. (2004) 122 Cal.App.4th 17, 23. BACKGROUND 11 USA Motion to Disqualify Defense Counsel, CR. of Corp. v. SpeeDee Oil Change Systems, Inc. (SpeeDee) (1999) 20 Cal.4th 1135, 114546. TECHNOLOGY, INC., a Taiwan corporation, During his employment as an AUSA, the plaintiffs counsel had represented the government in both criminal and civil matters, including defending employment law claims involving the USPS. the interests of the present client and former client are materially adverse. The injury must be concrete and particularized, not hypothetical. Id. Judge Colleen K. Sterne Under the present rule, if a party is willing to accept less effective counsel because of the attorneys testifying, neither his opponent nor the trial court should be able to deny this choice to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process. Reynolds v. Super. 390 Dept. CV1810311PADFMX, 2020 WL 2374947 (C.D. Your alert tracking was successfully added. Rptr. 279 Nature of Proceedings: Motion to Disqualify; Motion to Amend Gilbert v. Natl Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240, 1258, citing Smith, Smith & Kring v. Super. 16 and SHYH-CHYI WONG, an individual, and The only remaining Plaintiff is Green Mutual Property & Investment Co. Rules of Court, rule 3.1362(d). Disqualification for conflict of interest (a) Arbitrator's duty to disqualify himself or herself The arbitrator must determine whether any cause exists for disqualification upon any of the grounds set forth in Code of Civil Procedure section 170.1 governing the disqualification of judges. Only a party who has (or has had) a fiduciary relationship with a lawyer has standing to disqualify the lawyer. at 1358. Bank v. Adams (2002) 96 Cal.App.4th 315, 327. CLEVE PELL VS THE MONTEBELLO UNIFIED SCHOOL DISTRICT ET AL. Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398. 2 To comply with rule 3.1362, the moving party must submit the following forms: Cal. Protection of the attorney-client privilege is not the only ground for a motion to disqualify an attorney. Kennedy v. Eldridge (2011) 201 Cal. CLA's member registration page has move to: https://calawyers.org/create-account/, If you have any questions, please contact us at info@calawyers.org. [T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them. Kennedy v. Eldridge (2011) 201 Cal.App.4th 1204-1205. 23 This action arises from a dispute over the settlement of an earlier lawsuit.

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