17-CIV-02075 HERBERT D. TODD vs. AMALGAMATED TRANSIT UNION LOCAL

1574, et al.

HERBERT D. TODD MICHELLE D. STRICKLAND

AMALGAMATED TRANSIT UNION lOCAL 1574 JEFFREY DEMAIN

PLAINTIFF’S MOTION TO DISQUALIFY OPPOSING COUNSEL

TENTATIVE RULING:

The Motion of Plaintiff Herbert D. Todd (“Plaintiff”) for Order Disqualifying Opposing Counsel (“Counsel”) is DENIED.

“To determine whether there is a substantial relationship between successive representations, a court must first determine whether the attorney had a direct professional relationship with the former client in which the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847.) Here, Plaintiff fails to establish that an attorney-client relationship existed between Plaintiff and Counsel in connection with the prior arbitration proceeding.

The problem with Plaintiff’s motion is that there was no prior attorney-client relationship between Plaintiff and the law firm. Plaintiff admits that the law firm previously represented the Union, not Plaintiff. Plaintiff claims he still had a vested interest in the outcome of the arbitration proceedings, but Plaintiff has not presented any authority to support that somehow that created an attorney-client relationship. In fact, Plaintiff’s First Amended Complaint only names the Union as a defendant, not the law firm, even though the allegations are that attorney Purtell failed to provide competent legal representation. Thus, the allegations are similar to a legal malpractice claim, even though there is no cause of action for legal malpractice. In researching this issue, it appears that Plaintiff cannot sue the law firm because the Collective Bargaining Agreement provides only for the Union to submit a request in writing for arbitration of a grievance. (See First Amended Complaint, Exh. A, Collective Bargaining Agreement (“CBA”), p.117.) Without an express provision in the CBA, an employee is not entitled to intervene or actively participate in arbitration proceedings under a CBA between an employer and a union. (20 Williston on Contracts § 56:81 (4th ed.).) As a consequence of the employee’s lack of standing to initiate arbitration, the employee must rely on the union’s exercise of its duty of fair representation. Thus, this appears to be the reason why Plaintiff is bringing this action against the Union for breach of fair duty of representation, and not an action for legal malpractice against the law firm. Without an attorney-client relationship between Plaintiff and the law firm, there is no potential conflict with the law firm representing the Union in this action.

Further, even if the court were to find that an attorney-client relationship existed between Plaintiff and the law firm because Plaintiff had a vested interest in the arbitration proceedings, it appears that any information disclosed to the law firm was not intended to be confidential from the Union. Plaintiff admits the law firm represented the Union in the arbitration proceedings. By disclosing Plaintiff’s criminal file to the law firm, Plaintiff could not have intended to keep it confidential from the Union.

The Union’s Objection nos. 1, 2 and 3, are SUSTAINED as to the objections based on lack of foundation and speculation.