2009-00053797-CU-CD

Norman B Moss Trustee vs. John Mourier Construction Inc

Nature of Proceeding: Motion for Order Disqualifying Glen Van Dyke

Filed By: Scoffield, Lindy H.

Defendant John Mourier Construction, Inc.’s (“JMC”) motion to disqualify attorney Glen
Van Dyke and Van Dyke Law Group (collectively “VDLG”) from representing the
plaintiffs in this case is GRANTED, as follows.

Opposing counsel is admonished for failing to comply with CRC Rule 3.1113(f).

Defendant JMC moves to disqualify VDLG on the grounds that attorney Mark Hardy,
who previously served as mediator in this action and who in that capacity received
privileged and/or confidential information relating to JMC’s claims and defenses in this
action, is now “associated with” VDLG which currently represents plaintiffs bringing the
present lawsuit. As support for this claim, defendant JMC offers the Scoffield
Declaration to which several exhibits tending to show an “association” between Mr.
Hardy and VDLG were attached. JMC also relies primarily on Cho v. Superior Court
(1995) 39 Cal.App.4th 113 for the proposition that disqualification is required in the
present case. Briefly, in Cho the Second District Court of Appeal considered “whether
a law firm must be disqualified as counsel in a lawsuit after employing [in an of counsel
position] the retired judge who had presided over the action and had received ex parte
confidences from the opposing party in the course of settlement conferences” and it
was held “that screening procedures are not sufficient to preserve public trust in the
justice system in these circumstances and therefore the firm must be disqualified.” (
Cho, at 116.)

In opposition, plaintiffs argue that Mr. Hardy has not joined VDLG nor is the former
otherwise employed by the latter. (Oppos., p.2:7-18.) Instead, the opposition
maintains that Mr. Hardy and VDLG are merely “associated as co-counsel” in certain
cases other than the present one. (Oppos., p.5:5-17.) In support of the opposition, plaintiffs offer the Hardy Declaration which essentially avers that Mr. Hardy no longer
recalls any of the discussion which occurred while he was mediator of this action and
that he is currently a solo practitioner who “associate[s] with…Glen Van Dyke on a
case-by-case basis,” even occasionally using the latter’s office space.

The Court finds that while the opposition papers attempt to minimize the nature of the
association between Mr. Hardy and VDLG, the exhibits attached to the Scoffield
Declaration tend to show a much broader association. Of particular note, it appears
not only that VDLG issued a press release announcing that Mr. Hardy would be
working “in association[ ] with the [VDLG] on special projects” but also that the public
may specifically contact Mr. Hardy via VDLG’s own website. Additionally, Mr. Hardy’s
own website represents that he is “a ‘solo’ practitioner working in association with the
[VDLG]…” Regardless, there can be no dispute there is some association between
VDLG and Mr. Hardy and thus, coupled with the need to maintain both the parties’ and
the public’s perception of a fair and impartial legal system, this Court holds that
disqualification of VDLG is required by the plain language of the Cho decision:

“The protection of the confidences of litigants has been a primary focus of rules
of professional conduct in California and as drafted by the American Bar
Association. [Cites.] … [U]nder the Model Rules, a former judge may not
represent anyone in connection with a matter in which he or she ‘participated
personally and substantially as a judge…’ (Model Rules, rule 1.12(a).) … [¶] The
integrity of the judicial process demands that litigants have confidence that a
judicial officer who has been privy to revelations regarding the case in the
course of settlement conferences will not later become aligned with the
opposition. Unlike the disqualification of a former private sector attorney who
has governmental information, here the former judge became privy to the
confidences of private parties to the litigation.

We are presented with a situation in which the judge’s role did include receiving
confidences from petitioner’s counsel ex parte during repeated settlement
conferences. The case is analogous to that of a mediator who was disqualified
from representing a litigant in a subsequent matter related to an earlier case in
which the mediator had received confidences from the parties. (Poly Software
Intern., Inc. v. Su (D. Utah 1995) 880 F. Supp. 1487.) In Poly Software, …,
Attorney Berne S. Broadbent was retained…to represent…Poly Software, the
plaintiffs. The defendants…moved to disqualify Broadbent and his firm on the
ground that Broadbent had served as a mediator in previous litigation when [the
principals of the opposing entities] were business partners in the Polysoft
Partnership. The Poly Software court found: ‘Broadbent conducted a series of
intensive meetings, conferring with the parties both individually and together.
During Broadbent’s private caucuses with the Polysoft Partnership both
[principals] were present and openly discussed confidential aspects of their
case,…’

…

We agree with the analysis in Poly Software that disqualification of both the
individual attorney and his or her firm is required where the attorney has been
privy to confidences of a litigant while acting as a neutral mediator. We also
agree with the distinction drawn between adjudicators and mediators, so long
as the adjudicator does not become a mediator and, in doing so, receive confidences from the parties going to the essential merits of the dispute. Where
a judicial officer has presided over settlement conferences which included ex
parte communication, we presume the revelation of confidences relating to the
merits of a litigant’s case. The same principles discussed in Poly Software
demand disqualification of both the former judge and his or her new firm in such
circumstances. The case for disqualification of the judge is even more
compelling than the case of the mediator, who has a far more limited role in a
matter than a judge. … [¶] All manner of issues are discussed in confidence at a
settlement conference, including the strengths and weaknesses of each party’s
case, and the amount the party is willing to pay or receive in settlement. … [¶]
No amount of assurances or screening procedures, no ‘cone of silence,’ could
ever convince the opposing party that the confidences would not be used to its
disadvantage. When a litigant has bared its soul in confidential settlement
conferences with a judicial officer, that litigant could not help but be horrified to
find that the judicial officer has resigned to join the opposing law firm–which is
now pressing or defending the lawsuit against that litigant. No one could have
confidence in the integrity of a legal process in which this is permitted to occur
without the parties’ consent.” (Cho, at 121-125 (underline added for emphasis).)

Based on the foregoing, including the presumption that Mr. Hardy received the
confidences of defendant JMC as a result of acting as mediator in this action,
defendant JMC’s motion to disqualify must be and hereby is granted.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)