CIV 524828 RALPH DAYAN, ET AL. VS. LINDA MARIE LEMBI, ET AL.

RALPH DAYAN EDWARD C. SINGER

LINDA MARIE LEMBI REES F. MORGAN

MOTION TO DISQUALIFY EDWARD SINGER AND THE LAW FIRM OF ZACKS & FREEDMAN, P.C. BY LINDA MARIE LEMBI AND LINDA MARIE LEMBI AS TRUSTEE OF THE LINDA LEMBI REVOCABLE TRUST U/A/D APRIL 14, 2009

· The motion to disqualify Edward Singer and the law firm of Zacks and Freedman is granted.

· Contrary to Defendant’s assertion, Attorney Singer was never counsel to Defendant Linda Lembi. The Trust instrument provided for only an initial trustee. Nothing in the Trust instrument provided that Defendant Linda Lembi was ever a co-trustee. The Trust provides that Defendant Lembi could become successor trustee upon Mr. Lembi’s becoming “unable or unwilling to act.” (Trust, Part Six at p.22.) Mr. Lembi died in August 2010. The express language of the trust document takes precedence over the assertions of Ms. Lembi in her declaration. Even if Defendant Lembi became successor trustee at that time, there is no evidence that Attorney Singer represented her during her time as trustee. In turn, disqualification based upon a prior attorney-client relationship between Mr. Singer and Mrs. Lembi is not warranted.

· The inquiry does not end there however. Trial courts have inherent power to disqualify counsel when necessary for the furtherance of justice. Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116. Justice demands that Mr. Singer and his firm be disqualified in this matter. Mr. Singer represented Mr. Lembi both in his individual capacity and as Trustee. His ethical and fiduciary duty was to both Mr. Lembi and the Trust. During his representation, he was privy to confidential communications from Mr. Lembi in the defense of creditors’ claims against the Trust. As set forth in Bus. and Prof. Code section 6068(e)(1), an attorney is charged with maintaining the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. To then switch sides and prosecute claims against the very same Trust after the death of Mr. Lembi violates his continuing ethical and fiduciary duties to Mr. Lembi. A lawyer’s duties to his client survive the client’s death. Rutter California Practice Guide, Professional Responsibility, section 7:35. [The duty of confidentiality continues after the client’s death] Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811; California Rule of Professional Conduct 3-310(e).

· Additionally, a person may seek disqualification even if the attorney never represented that person, if the attorney obtained information that could be used advantageously against an adverse party. The case of Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197 is illustrative:

However, disqualification may be considered where “there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court. Thus, disqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation.” (Id. at 1205.)

· Merely because Linda Lembi was never Attorney Singer’s client, or that Attorney Singer never owed her a duty of care, does not preclude her from seeking disqualification. As set forth below, the Court should grant the motion to disqualify.

· What the facts present then are two independent but parallel reasons for disqualifying Mr. Singer. Attorney Singer’s representation of Mr. Lembi in civil actions presents a high likelihood that Attorney Singer obtained confidential information that could be used in prosecuting the present action. The civil actions against Mr. Lembi concerned defaulted loans and personal guaranties. The allegedly fraudulent transfer that is the subject of this action occurred during the time that Attorney Singer defended Mr. Lembi in the civil actions. If, as alleged, Mr. Lembi transferred the Pepper Street property to Defendant Linda Lembi for little or no consideration, she likely agreed to the transfer. To now prosecute this case violates Mr. Singer’s duty to Mr. Lembi.

· This Court is also concerned about the strong appearance of impropriety which could serve to undermine the integrity of the judicial system. In applying the “substantial relationship” test, this Court considers the similarities between the two factual situations, the legal questions posed and the nature and extent of the attorney’s involvement with the cases. Morrison Knudsen Corp v. Hancock, Rothert & Bunshoft (1999) 69 Cal.App.4th 223. Mr. and Mrs. Lembi were married. They resided in the property that is the subject of this action. The property was in the Trust. The complaint, drafted and signed by Attorney Singer, alleges that his own former client, Mr. Lembi, fraudulently transferred the property during a time that Attorney Singer represented him. As a result of Attorney Singer’s representing Mr. Lembi against claims of loan defaults and breaches of guaranties, at the same time the transfer occurred, there is a “reasonable probability” that he obtained information that “would likely be used advantageously against” Defendant Linda Lembi during the course of this litigation. (See Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197.) The Court simply cannot allow that to occur.

· If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.