Page 1
Court of Appeal:
Lawyer May Be Barred From Representing Himself
Opinion Points to the Prospect That the Defendant in an Action Over Investment Advice Might Use to His Advantage Confidences Vested in Him by One of the Plaintiffs/Investors, a Former Law Client
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday affirmed an order barring a lawyer from representing himself and his co-defendants in a civil action based on the prospect that he would use confidences placed in him by the plaintiff, a former client.
Santa Ana attorney Sunil A. Brahmbhatt is being sued by ex-client Samir J. Patel and others who invested in his cannabis businesses. Orange Superior Court Judge John C. Gastelum granted an order disqualifying Brahmbhatt from representing himself and the other defendants “in all phases of litigation.”
The judge based his order on Castellum Rule 3.7 of the California Rules of Professional Conduct, which provides that, in general, “[a] lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness.”
Lawyer’s Contention
Brahmbhatt argued in his opening brief:
“Appellants do not dispute that if this case was to proceed to a jury trial, Mr. Brahmbhatt could not act as counsel at trial, in depositions, or in pretrial evidentiary matters that may confuse the jury in its role as factfinder. However, the Superior Court offered no explanation as to how Mr. Brahmbhatt’s representation of Appellants at the pleading stage—including in connection with a pending demurrer—could possibly mislead the jury or cause any prejudice to Respondents. The Superior Court abused its discretion by categorically disqualifying Mr. Brahmbhatt from serving as counsel “in all phases of the litigation, including in connection with behind-the-scenes or pleading stage matters that cannot possibly implicate the concerns that Rule 3.7 is designed to address.”
The appellant also argued:
“The Superior Court also abused its discretion by concluding that disqualification was warranted to prevent the potential ‘exploitation of any confidential information Brahmbhatt may have received during his former representation of’ Mr. Patel, one of the 15 plaintiffs/Respondents….In making that ruling, the Superior Court abused its discretion by failing to apply the correct legal standard that governs successive adverse representations.”
Rule 1.9
He pointed to Rule 1.9 which says, in part:
“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent.”
Brahmbhatt asserted:
“[T]he Superior Court merely cited an inflammatory accusation made by Mr. Brahmbhatt’s previous client, Mr. Patel, that Mr. Brahmbhatt had threatened to use confidential information obtained in the course of the prior representation….A reference to that bald allegation cannot replace the legal analysis that the Superior Court was required to undertake before disqualifying Mr. Brahmbhatt and depriving Appellants of their right to representation by counsel of their choosing.”
Allegation of Threat
When Patel demanded a return of the $200,000 he invested in Brahmbhatt’s businesses and threatened to report the lawyer to licensing agencies, Patel responded in writing and by telephone. The plaintiffs/respondents’ brief says that in that conversation, Brahmbhatt “stated that Patel was engaging in criminal activity and that if Patel did not cease asking for return of his funds, Brahmbhatt would use inside information that he obtained from Patel and other Plaintiffs who were friends of Patel and investors in Patel’s other business to harm such individuals, and further that he would arrange for criminal prosecution of Patel for extortion because Patel was demanding return of his funds.”
The brief goes on to say:
“…Respondents don’t know how Appellant unlawfully acting as counsel and witness in future proceedings will prejudice them. Their inability to predict the future does not mean that the Trial Court abused its discretion by applying the prophylactic measure of disqualification at this point. The burden is not on Respondents to demonstrate each and every way that Appellant’s unlawful conduct might hurt them.”
Motoike’s Opinion
Justice Joanne Motoike authored the unpublished opinion affirming Gastelum’s order. She wrote:
“The California Rules of Professional Conduct prohibit an attorney from revealing or using to his or her own advantage the confidences of a client, and require the attorney to maintain his or her duty of loyalty to the client. Brahmbhatt’s representation of clients/codefendants directly adverse to his former client, Patel, in a case involving Brahmbhatt’s solicitation of an investment by Patel in Brahmbhatt’s business would violate those duties.”
The jurist noted that Brahmbhatt had cited the 2022 opinion by this district’s Court of Appeal in Lopez v. Lopez. There, then-Presiding Justice Nora M. Manella (now retired) said that the “categorical disqualification” of a lawyer “from all pretrial activities was not supported by Rule 3.7’s text, or by reasoned findings concerning the rule’s purpose, we conclude it constituted an abuse of discretion.”
Motoike said:
“Even if the trial court erred by disqualifying Brahmbhatt from all pretrial activities, an independent ground supports the disqualification. As counsel formerly representing Patel, Brahmbhatt may be disqualified from any further representation to avoid the potential adverse use of confidential information.”
She explained:
“Brahmbhatt’s threat to use Patel’s personal, confidential information to harm Patel and Patel’s businesses is the type of breach of loyalty to the client that undermines public confidence in the legal system. As the trial court noted, ‘disqualifying Brahmbhatt in all phases of litigation as a prophylactic measure against prejudice to Plaintiffs and the integrity of the judicial process arising from Brahmbhatt’s dual role as an advocate-witness and his potential misuse of confidential information appears warranted.”
The case is Patel v. Brahmbhatt, G061401.
Copyright 2023, Metropolitan News Company