Wednesday, December 14, 2011
C.A. Upholds Order Barring Lawyer From Representing Son
Panel Cites Contentious Nature of Family Litigation, Possibility of Betrayed Confidences
By KENNETH OFGANG, Staff Writer
A Sacramento Superior Court judge did not abuse his discretion in barring an attorney from representing his son in contentious custody and support litigation, the Third District Court of Appeal ruled yesterday.
The justices affirmed Judge James Mize’s order barring Richard A. Eldridge, a certified family law specialist in Sacramento, from representing Tyler Scott Eldridge against ex-girlfriend Kayla Jean Kennedy.
The younger Eldridge, a college student, and Kennedy, a recent graduate, were dating when Kennedy learned she was pregnant in November 2009. Their son Calvin was born the following June.
Kennedy filed a parentage action, to which Tyler Eldridge, represented by his father, responded by admitting that he was the father and requesting visitation.
The litigation became bitter. Both parties were living with their parents initially, and each claimed that marijuana was regularly smoked at the other’s residence when the child was present. Kennedy asked that her ex-boyfriend’s visitation be monitored, saying he had a volatile personality and “drug” and “party” lifestyle, and each accused the other of being mentally unstable.
In support of her motion to disqualify Richard Eldridge, Kennedy cited a number of possible conflicts of interest. Richard Eldridge and his wife Deborah had represented Kennedy’s father in a child custody dispute, and Kennedy had worked for the Eldridges as a process server and had discussed her father’s case with them, in fact preparing a declaration regarding the case, which she gave to her stepmother, who was Deborah Eldridge’s secretary.
Richard Eldridge had acquired confidential information about Kennedy in the course of those activities, she claimed, and had and his wife had both been “emotionally involved” with the child ever since she told them she was pregnant, Kennedy declared.
Eldridge responded that Kennedy, not having been a client of his, lacked standing to seek his disqualification, and that his representation of his son did not breach any duty he owed to Kennedy. He said that Kennedy had never been a client or employee of his firm, and denied acquiring confidential information about her in the course of representing her father.
Mize ruled that Kennedy had standing to bring the motion, that Richard Eldridge was a potential witness in the case whose continued involvement as counsel would compromise the integrity of the process, and that it would be unseemly for an attorney to advocate for his son against the child’s mother in a case involving custody and support.
Justice Kathleen Butz, writing for the court, explained that in California, unlike in federal court, there is no authority that limits the right to bring a disqualification motion to clients or former clients of the subject. “It makes no sense for a court to stand idly by and permit conflicted counsel to participate in a case merely because neither a client nor former client has brought a motion,” Butz wrote.
It was reasonable, the justice went on to say, for Mize to find that the Eldridge firm, in the course of representing Kennedy’s father, acquired information about Kennedy that was not public and that could be used to her detriment in her litigation with Tyler Eldridge.
“It is virtually inconceivable that family matters pertaining to Kayla were not discussed” when her father and stepmother were discussing the father’s case with the Eldridges, Butz said, particularly because Kennedy was living with her father and stepmother at the time. Any conflict in the evidence as to whether confidential information was disclosed, the justice noted, must be resolved in favor of the trial judge’s ruling.
The trial judge was also correct, Butz said, in ruling that the “advocate-witness rule” requires disqualification. The rule prohibits an attorney from accepting representation if he or she is likely to be a witness at trial, unless the subject of the testimony is an uncontested issue or the nature and value of legal services, or the client would suffer “substantial hardship” if deprived of the lawyer’s counsel.
In a footnote, Butz pointed out that there was no evidence of any hardship that Tyler Eldridge would suffer if represented by someone other than his father. She also noted that the hardship exception is rarely applied.
The justice noted that even before the motion was brought, Richard Eldridge had become a de facto witness, disputing the notion that he himself smoked marijuana. Mize, she noted, had expressed confusion as to whether the lawyer was “arguing as an attorney, testifying as a witness,” or making an offer of proof, either on his client’s behalf or his own.
The jurist went on to say that special concerns about family litigation supported the order as well.
“And what about little Calvin? Can the court countenance allowing the infant’s grandfather to assume an adversarial role against the infant’s mother in a dispute over the child’s safety and welfare? Richard’s continued representation of Tyler places Richard in a position where his family loyalties are in conflict, his responsibilities to his grandson are compromised, and the court would face the prospect of playing host to an awkward spectacle, where the lines between attorneys, relatives and litigants become blurred and confused.”
The case is Kennedy v. Eldridge, 11 S.O.S. 6723.
Copyright 2011, Metropolitan News Company