Wednesday, June 5, 2019
Court of Appeal:
Opinion Cites Its Representation in Litigation That Ended in 2016 of the Law Firm for the Other Side;
Name Partner in That Firm Is Accused in Present Action of Unethical Conduct
By a MetNews Staff Writer
The Court of Appeal has affirmed an order disqualifying the law firm of Lewis Brisbois Bisgaard & Smith from representation in three consolidated cases involving a family trust because it once represented the law firm for the other side and the conduct of one of its lawyers is in issue in the present litigation.
Justice Thomas M. Goethals of the Fourth District’s Div. Three wrote the opinion, which was filed Monday and not certified for publication. It affirms an order by Orange Superior Court research attorney Aaron W. Heisler, acting as a judge pro tem.
Heisler barred Lewis Brisbois and a partner in the firm, Joseph K. Hegedus of its Los Angeles office, from acting in a case in which the Costa Mesa firm of Bohm Wildish & Matsen, LLP is representing the other side. One of the Bohm Wildish’s clients is Fred Sacher, a plaintiff in two of the consolidated cases and a defendant in the third.
The faction represented by Lewis Brisbois contends that attorney James G. Bohm, a partner in Bohm Wildish, exercised undue influence over Sacher and is guilty of other unethical conduct.
Lewis Brisbois had represented Bohm Wildish (then Bohm, Matsen, Kegel & Aguilera LLP)—but not Bohm, individually—in a professional negligence action against it, Olson v. Grad. Although Bohm Wildish was dismissed without prejudice in 2016, as Heisler saw it, that was of no consequence.
“[A] voluntary dismissal of a defendant does not per se terminate the attorney-client relationship between that defendant and its attorney,” he said in his ruling, adding:
“Mr. Bohm offers evidence sufficient to establish he remains in continued contact with Lewis Brisbois attorneys about the status of the Olson Action, and that Lewis Brisbois attorneys continued to represent Bohm Wildish’s interests in ancillary legal proceedings related to the Olson Action.”
Heisler found that “the Brisbois Attorneys are in the impossible position of vigorously advocating” for its clients in the family trust matter “by skewering their own client, Bohm Wildish.”
Responding to Lewis Brisbois protest that James Bohm was never its client, he wrote:
“The assertion that Lewis Brisbois breaches no duty to Bohm Wildish—the law firm—by making allegations against Bohm as an individual ignores the fact that Bohm Wildish acts through the attorneys it employs. Consequently, an allegation of professional misconduct against Bohm is also an allegation against Bohm Wildish.”
Heisler relied on the Court of Appeal’s 2003 decision in Hernandez v. Paicius, which emanated from a differently constituted panel of the Fourth District’s Div. Three. There it was held that a judge should have granted a mistrial after the defendant’s lawyer vigorously cross-examined the plaintiff’s expert witness, a medical doctor, as to allegations against him of malpractice and unethical conduct.
The doctor was a client of the defendant’s attorney.
Lewis Brisbois contended that Hernandez is inapposite because that case involved a lay client. It quoted the California Supreme Court’s 1994 opinion in Flatt v. Superior Court (also quoted by Justice Raymond J. Ikola in Hernandez) as observing:
“A lay client is likely to doubt the loyalty of a lawyer who undertakes to oppose him in an unrelated matter….”
Bohm and his firm, Lewis Brisbois argued, are, unlike a layperson, “well-versed in the adversarial nature of litigation.”
“We cannot agree because Flatt itself involved an attorney’s duty of loyalty to an existing client who was also an attorney.”
He went on to say:
“Flatt is essentially on all-fours with this issue here, as it involves a law firm that already represented another attorney as a client, when it was presented with an opportunity to represent a new client who intended to allege unrelated acts of misconduct against that same attorney/client in a different case. The only significant distinction we see is that in Flatt, the law firm immediately concluded that it would be unethical to represent the new client against its existing client—a conclusion resoundingly endorsed by the Supreme Court—while in these cases, Lewis Brisbois did not. We are bound by Flatt. So is Lewis Brisbois.”
Matter of Standing
Heisler found that Sacher had standing to seek Lewis Brisbois’s disqualification but Bohm Wildish did not. Goethals agreed that Sacher had standing but said that, in the end, standing did not matter because the court has the inherent authority to bar a disqualified form from acting in a case, explaining:
“[W]e question the very notion that the court’s authority to order an attorney’s disqualification in a case such as this would depend upon the ‘standing’ of the party which brings the matter to its attention….
“Given that the ‘paramount’ interest at stake is the preservation of the public’s trust in the integrity of its judicial system, the court’s authority to remedy an attorney’s ethical breach in the case before it does not depend upon the individual concerns of the party who brings the matter to its attention—in fact, it does not require that any party even request the disqualification.”
The jurist added:
“Here, it is Lewis Brisbois that should have brought the conflict issue to the court’s attention, and then explained to the best of its ability why it should not be disqualified from representing its clients in these cases. Its failure to have done so does not require the court to ignore the issue.”
The case is Sacher v. Sacher, G055822.
Copyright 2019, Metropolitan News Company