Case Number: 18STLC02320 Hearing Date: June 11, 2018 Dept: 94

Defendant Lior Shaubi’s Motion for Order Disqualifying Plaintiff’s Counsel, Ramin Ray Kohanarieh And RK Law Group, APLC from Representation of Plaintiff in this Action is GRANTED.

Legal Standard

Pursuant to CCP §128(a)(5), one of the court’s powers is to control the conduct of its ministerial officers and of all other persons in any manner connected with a judicial proceeding before it in furtherance of justice. That power includes disqualifying an attorney.

“The issue of disqualification ‘ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern, though, must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar. The recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process.’ [Citations.]” (Metro-Goldwyn Mayer v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1838.)

Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113.) Different standards have evolved for conflicts arising out of the simultaneous representation of clients with potentially adverse interests versus the successive representation of clients with adverse interests.

Where the potential conflict is one that arises from the successive representation of clients with potentially adverse interests, the courts have recognized that the chief fiduciary value jeopardized is that of client confidentiality. Thus, where a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a “substantial relationship” between the subjects of the antecedent and current representations.

(Flatt v. Superior Court (1994) 9 Cal.4th 275, 283; see Metro-Goldwyn Mayer, supra, at 1839.)

The “substantial relationship” test mediates between two interests that are in tension in such a context—the freedom of the subsequent client to counsel of choice, on the one hand, and the interest of the former client in ensuring the permanent confidentiality of matters disclosed to the attorney in the course of the prior representation, on the other. Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney’s representation of the second client is mandatory; indeed, the disqualification extends vicariously to the entire firm. (See, e.g. Rosenfeld Const. Co. v. Superior Court (1991) 235 Cal.App.3d 566, 575 [“ ‘If a substantial relationship is established, the discussion should ordinarily end. The rights and interest of the former client will prevail. Conflict would be presumed; disqualification will be ordered.’ ”]; Henriksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 117 [“[W]here an attorney is disqualified because he formerly represented and therefore possesses confidential information regarding the adverse party in the current litigation, vicarious disqualification of the entire firm is compelled as a matter of law.”]; Galbraith v. State Bar (1933) 218 Cal. 329, 332–333; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572; see generally T.C. Theatre Corp. v. Warner Bros. Pictures (S.D.N.Y.1953) 113 F.Supp. 265, 268 [origin, interpreting canon 6 of the ABA Canons of Professional Ethics, of the substantial relationship formulation and the presumption that confidences relevant to the successive representation were disclosed if the relationship between the two is substantial].)

(Flatt v. Superior Court, supra, 9 Cal.4th at pp. 283-284.)

Discussion

On February 25, 2016, Plaintiff’s counsel sent a letter to Defendant’s insurance carrier, Pacific Specialty Insurance Company (“PSIC”), stating that both parties had retained his law firm regarding their property and bodily injury damages arising from the February 7, 2016 motor vehicle accident that is the subject of this action. (Motion, Saracyan Decl., ¶3; Exh. A. Thereafter, on March 30, 2016, Plaintiff’s counsel sent a second letter to PSIC stating that his firm no longer represented Defendant. (Id. at ¶4 and Exh. B.) These facts demonstrate that there is more than a “substantial relationship” between the subjects of the antecedent and current representations.

In fact, Plaintiff’s counsel represented both parties with respect to the same litigation. Under these circumstances, it must be presumed that Plaintiff’s counsel had access to, and is in possession of, confidential information adverse to Defendant’s interests. (See Flatt v. Superior Court, supra, 9 Cal.4th at p. 283.) Therefore, disqualification of Plaintiff’s counsel is mandatory. (Ibid.) Additionally, it is appropriate to disqualify Plaintiff’s counsel’s entire firm from representing Plaintiff given Plaintiff’s counsel’s representation of a party directly adverse to Defendant’s interests. (See Henriksen v. Great American Savings & Loan, 11 Cal.App.4th 109, 114-115; Klein v Superior Court, 198 Cal.App.3d 894, 909.)

Based on the foregoing, Defendant’s motion to disqualify Plaintiff’s counsel and his law firm is granted.