Tuesday, January 2, 2018
C.A. Reverses Disqualification of Lawyer, Saying He Caused No Harm
By a MetNews Staff Writer
The Court of Appeal for this district on Friday, in a 2-1 opinion, reversed the trial court’s disqualification of the defendant’s lawyer based on perceived misconduct, holding that even if the judge’s perception was accurate, denying a client its choice of a lawyer is improper absent a showing of harm.
Presiding Justice Frances Rothschild of Div. One wrote the majority in which Justice Elwood Lui, formerly an associate justice in that division (now presiding justice of Div. Two) concurred. Justice Victoria Chaney dissented.
Los Angeles Superior Court Judge Holly E. Kendig granted a motion disqualifying the Law Office of Shun C. Chen based on a response to a $45,000 settlement offer pursuant to Code of Civil Procedure §998. Chen sent it back with one zero crossed off and proclaimed that the client “accepts your client’s corrected offer in the sum of $4,500.00.”
The lawyer insisted, when an issue was made of it, that what he intended was a counter-offer.
But Kendig found that Chen was seeking to bring the action to a conclusion through “fraudulent” means. She also faulted Chen for statements to opposing counsel suggesting that the plaintiff might be deported.
In her opinion reversing Kendig, Rothschild said:
“Even if we assume that appellant’s counsel had, as the trial court found, engaged in misconduct when he altered the section 998 offer and attempted to end the action ‘via fraudulent means;’ and even assuming that appellant’s counsel made statements which respondent interpreted as threatening appellant’s immigration status, such conduct would not automatically warrant disqualification. Not every instance of an attorney’s misconduct or an ethical violation warrants disqualification….Rather, disqualification is appropriate when the lawyer engages in conduct which causes actual harm to the adverse party, counsel’s client or the judicial proceedings.”
The jurist declared that no such harm existed in the present case.
Chaney countered, in her dissent:
“[T]he trial court determined that counsel’s behavior and the risk of continued misbehavior have undermined and will continue to undermine the judicial process. The record contains no evidence—and the opinion cites none—that would contradict that conclusion.”
The case is Miralda v. Heng Sheng, Inc., B282158.
Chen represented his client on appeal and Pouya B. Chami argued for affirmance.
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