Tuesday, August 5, 2008
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Defense Counsel’s Call to Plaintiff Not Ethical Violation—C.A.
Court Draws Distinction That Party Was ‘Assisted’ by Attorney, Not ‘Represented’
By SHERRI M. OKAMOTO, Staff Writer
A defense attorney did not act unethically when he attempted to speak about a case with the plaintiff who was her own counsel of record in pro per, but who had retained an attorney to assist her, this district’s Court of Appeal held yesterday.
Upholding Ventura Superior Court Judge William Q. Liebmann’s denial of Denise McMillan’s motion to disqualify Long Beach attorney Nicholas Paulos, Div. Six ruled that Paulos was duty-bound to recognize McMillan as the relevant attorney of record and was not obliged to communicate through assisting counsel, and that Paulos’ attempt to meet and confer with McMillan did not violate Rule of Professional Conduct 2-100.
McMillan, a condominium owner, filed a complaint against the Shadow Ridge at Oak Park Homeowners’ Association in 2005 through the law offices of Loewenthal, Hillshafer & Rosen in Sherman Oaks, alleging the association had failed to comply with its covenants and restrictions, and had breached its fiduciary duty to her.
The association, represented by Paulos of Prindle, Decker & Amaro in Long Beach, successfully negotiated a settlement agreement, and McMillan’s attorneys filed a dismissal.
Settlement Disavowed
McMillan later disavowed the settlement and retained a new attorney, C.B. Henrichsen of Thousand Oaks, who formally substituted in as counsel of record and filed a motion to set aside the dismissal.
The motion was granted without opposition, but shortly thereafter, McMillan filed another substitution of attorney removing Henrichsen and substituting herself as attorney of record in propria persona.
Paulos then received a letter from Los Angeles attorney John A. Schlaff, stating that he would be assisting McMillan in a limited fashion by defending any currently scheduled depositions, “among other tasks,” but would not be substituting in as attorney of record and would not be acting as trial counsel.
The letter indicated that Schlaff intended to file a motion to continue trial, and Paulos agreed to continue the scheduled depositions to allow Schlaff to file the motion, and for Schlaff to provide new deposition schedule.
However, in the ensuing two months, Schlaff neither filed the motion nor provided Paulos with new deposition dates.
Paulos then called McMillan to advise her of a pending ex parte motion to compel the depositions of her designated experts.
Status Confirmed
Confirming with McMillan that she was still the attorney of record and that Schlaff was not planning to substitute into the case, and instructing McMillan not to disclose anything she had discussed with her attorneys, Paulos engaged McMillan in a discussion regarding upcoming court dates, a scheduled mandatory settlement conference and the possibility of a settlement.
Five days later, Schlaff—who had not been formally substituted into the case—filed a motion seeking to disqualify Paulos for violating Rule of Professional Conduct 2-100, which prohibits an attorney from communicating with a party whom the attorney knows to be represented by another lawyer about the subject of the representation without the other lawyer’s consent.
Liebmann found that the conversation between Paulos and McMillan was appropriate because McMillan was the attorney of record at the time, no privileged information was disclosed, and there was no prejudicial effect on the litigation.
On appeal, Schlaff represented McMillan and contended the motion should have been granted because he had informed Paulos of his limited association prior to Paulos’s conversation with McMillan. He also argued that McMillan was prejudiced by her disclosure of privileged information in the conversation with Paulos.
However, Justice Steven Z. Perren opined that no violation of Rule 2-100 had occurred.
“A party in a case being litigated is either represented by counsel or she is not,” he explained, and opposing counsel has “every right to rely on court records as binding on both litigants and the attorneys appearing of record on their behalf.”
Noting that McMillan was the attorney of record at the time she spoke with Paulos, Perren reasoned Schlaff’s oral statement that he was representing McMillan in a limited capacity was insufficient to implicate Rule 2-100.
“While a pro se litigant may divide the duties or representation as would any other lawyer, she may not insulate herself from contact by the court or adversary counsel,” Perren wrote. “The preservation of the attorney-client relationship in such a circumstance is achieved by the pro se declining to speak with the adversary or referring him to associated counsel should she wish to do so.”
Justices Kenneth R. Yegan and Paul H. Coffee joined Perren in his opinion.
The case is McMillan v. Shadow Ridge at Oak Park Homeowners’ Association, 08 S.O.S. 4765.
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