Metropolitan News-Enterprise


Monday, December 29, 2008


Page 1


Court of Appeal Upholds Disqualification of Pasadena Attorney

Rules Counsel Cannot Represent Plaintiff’s Witness, Defendants in Same Action


By SHERRI M. OKAMOTO, Staff Writer


A Pasadena attorney who represented a witness for the plaintiffs in a tort action could not also represent the defendants in that same suit, the Fourth District Court of Appeal has ruled.

In an unpublished opinion Tuesday, Div. One upheld San Diego Superior Court Judge Robert P. Dahlquist’s order disqualifying Stephen Robert Schwartz Jr. of Wallace & Schwartz from representing two veterinarians in an action brought by actor Tom Selleck and his wife, Jillie Mack-Selleck.

The Sellecks hired Paul McClellan, a veterinarian, to conduct a pre-purchase examination of a horse named Zorro the couple was considering buying for use by their daughter in riding competitions.

They alleged that McClellan had failed to follow up on information provided by the seller about Zorro, including that the horse had received veterinary treatment in the previous 30 days.

If he had, the Sellecks contended, McClellan would have discovered that veterinarian Richard Brian Markell had given Zorro five injections of joint lubricant and steroids used in the aggressive treatment of a lame horse three days before McClellan’s examination.

Zorro was lame in his right front leg and unsuitable for use in competition, the Sellecks said. They filed suit against McClellan for negligence.

McClellan tendered his defense to his professional liability insurer, who retained Schwartz to represent McClellan.

After the parties commenced discovery, including the deposition of McClellan, Schwartz persuaded the Sellecks to dismiss his client from the litigation without prejudice and McClellan agreed to testify against the sellers and Markell.

The Sellecks amended their complaint to add the sellers and Markell as defendants, alleging that the defendants had knowingly and actively participated in deceiving them regarding Zorro’s lameness.

The new defendants tendered their defense to their insurer, which was the same carrier McClellan used. The insurer again retained Schwartz.

Motion to Disqualify

Shortly thereafter, the Sellecks moved to disqualify Schwartz. McClellan testified under penalty of perjury that he had shared confidential information regarding the case with Schwartz, who had represented him at his deposition and advised him regarding his settlement with the Sellecks.

McClellan said that he believes he was intentionally misled by the defendants regarding the drugs administered to Zorro prior to his examination of the horse and that a finding of fraud against one or more of the defendants would exonerate him.

The trial court rejected the defendants’ claims that the Sellecks lacked standing to assert the existence of a conflict of interest between McClellan and Markell because the Sellecks had no prior relationship with Schwartz and that the defendants’ interests were not adverse to those of McClellan.

Non-Client Standing

Writing for the appellate court, Justice Patricia D. Benke explained that a non-client may have standing to bring a disqualification motion arising from a third-party conflict of interest if the non-client can establish a manifest and glaring ethical breach that would trigger the trial court’s inherent obligation to manage the conduct of attorneys appearing before it and to ensure the fair administration of justice.

Because the conflict-of-interest issue was likely to resurface at trial, and McClellan could not ask Schwartz to file a motion to disqualify himself, Benke concluded that the trial court had properly exercised its inherent power to control judicial proceedings by treating McClellan’s request to disqualify Schwartz as a joinder in the Selleck’s motion.

Benke further concluded that Schwartz could not undertake the representation of the defendants without obtaining McClellan’s informed, written consent—which Schwartz indisputably had not—because substantial evidence in the record supported the trial court’s finding that McClellan’s interests were adverse to the defendants’ interests and the trial court’s finding was entitled to deference.

Schwartz was also subject to disqualification based on the duty of loyalty, Benke added, reasoning that Schwartz would violate his duty if he or a member of his law firm were to cross-examine McClellan at trial.

Justices Alex C. McDonald and Cynthia Aaron joined Benke in her opinion.

The case is Selleck v. Markell, D052361.


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