Court of Appeal:
Opinion Says Due Process Was Not Denied by Decision That Respondent in Divorce Case Could Not Both Take Over Representation at Trial and Have Ousted Lawyer at His Side
By a MetNews Staff Writer
The due process right of a husband in a divorce trial was not abridged when the court declined to allow him to both fire his lawyer and have that lawyer continue to sit next to him at the counsel table, Div. Three of the Fourth District Court of Appeal has held.
Its decision came on Tuesday in an unpublished opinion by Justice Richard M. Aronson. The opinion affirms a judgment by retired Orange Superior Court Judge W. Michael Hayes, sitting on assignment to his former court.
Hayes’s judgment includes a determination that the husband, Shashi Kumar Tejpaul—also known as S.K. Paul—is solely responsible for satisfying a civil judgment based on a jury’s $806,644 award against him stemming from his intentional torts, including fraud. It was determined in that underlying action that Tejpaul’s wife, Gail Duncan, had no complicity in the scheme.
Aronson concluded that substantial evidence supports Hayes’s finding that Tejpaul’s wrongdoing did not benefit the community and therefore, under Family Code §1000, he alone, not the community, should be liable on the debt. As to the alleged constitutional violation, Aronson declared that Tejpaul “has not shown a legally cognizable due process right to have former counsel sit at counsel’s table.”
After trial had commenced on issues in the divorce case, Tejpaul announced that he wanted to take over the defense. Hayes admonished:
“I will tell you, 24 years on the bench, working multiple assignments, including 13 years doing heavy felony cases where people’s lives are in question for life, I have never seen—I can’t think of a time that getting rid of your lawyer is a good thing. But I can’t tell you what to do. I just give you that warning.”
The litigant conferred with his counsel, but nonetheless submitted an executed substitution-of-attorney form. Before Hayes accepted it, Tejpaul expressed his wish that the lawyer remain seated by him.
“He is either in or out….
“The surest way to muck this thing up is to have him sitting there as non-counsel….
“So it’s your call….
“But he is either in or out. But he is not going to kind of be in and jumping in and out. That just won’t work.”
When the lawyer suggested that he could simply sit there, mum, Hayes said:
“You are going to be sitting in the back row, or in the front row, but you won’t be sitting at counsel table, you’re not counsel. And you can talk to him on the breaks if you want, but you are not going to run back and forth.”
“It is the only way to be fair.”
Aronson agreed. He wrote that none of the cases cited by Tejpaul holds “that a pro per litigant has a right to have a former attorney sit at counsel’s table during trial” and that the appellant’s constitutional argument thus has no weight behind it.
The justice brushed aside Tejpaul’s contention that Hayes abused his discretion in barring the lawyer from being seated next to him, saying that although the record shows that the husband “wanted former counsel present, he agreed to the court’s conditions before deciding to represent himself,” and thus forfeited any protest on appeal.
In light of Tejpaul’s lack of an objection at trial, Aronson continued, Duncan “did not have an opportunity to explain whether or how she would have been prejudiced.” He observed:
“For example, [she] also might want a nonparty person to sit at counsel’s table to assist her at various stages in the proceedings.”
The case is Marriage of Duncan and Tejpaul, G056998.
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