Wednesday, March 3, 2004
C.A. Overturns Order Disqualifying Lawyer Whose Brother Was Physician to Adverse Party in Custody Dispute
By a MetNews Staff Writer
A sibling relationship between one party’s lawyer and the opposing party’s doctor does not, by itself, justify disqualification of the lawyer, the Fourth District Court of Appeal has ruled.
Div. Three granted a writ of mandate reinstating Therese Ann Accetta of Seal Beach as counsel for Yasser Addam in a custody and visitation dispute with his ex-wife. The Feb. 3 opinion by Justice William Rylaarsdam was certified yesterday for publication.
Addam sought custody of the couple’s three children in January of last year, two years after the couple ended their seven-year marriage. Melanie Addam obtained a continuance of the custody hearing in order to move to recuse Accetta.
In support of her motion, she declared that she had been a patient of the lawyer’s brother, Dr. August Accetta, an obstetrician. She said she began seeing him about 1991, stopped seeing him in 1996, and then saw him again in 2000.
Before her divorce became final, she said, her husband spoke to the doctor—who was a friend of his—and she and the doctor discussed the possibility of keeping the marriage intact. Those efforts failed, however, and she continued to speak with the doctor by phone about her medical needs until sometime after her husband applied for change of custody.
She then, she explained in her declaration, received a letter from the doctor suggesting it would be improper for him to continue as her physician while his sister was representing her ex-husband. She declared that she believed that her husband or his lawyer had later spoken to the doctor about the custody dispute.
In response, Yasser Addam declared that he and the doctor had been friends for over 10 years. Both he and the doctor declared that his wife had ceased being the doctor’s patient in 1996.
August Accetta declared that his only contact with Melanie Addam after 1996 was a surprise phone call in February of last year seeking advice about “an acute problem.” He said he advised her to go to an emergency room, had no further contact with her, and sent the letter in order to make clear that they did not have a doctor-patient relationship.
He added that he had not disclosed privileged information to his sister or her client.
Therese Accetta declared that she was aware that Melanie Addam had been her brother’s patient when Yasser Addam asked her to represent him, but that her brother assured her that she was no longer a patient prior to her accepting representation. She added that she and her brother had not shared privileged information.
Orange Superior Court Judge Nancy Pollard, in granting the motion, said there was “an apparent conflict” and that the relationship between the ex-wife and her gynecologist was so “intimate and personal” as to require disqualification.
But Rylaarsdam said that an appearance of impropriety is not enough to disqualify a lawyer, and that there was no evidence in the record to establish the existence of an actual conflict.
The case is Addam v. Superior Court (Addam), G032386.
Copyright 2004, Metropolitan News Company