Tuesday, September 17, 2002
C.A. Allows Lawyer to Represent MacLaren Residents in Tort Action
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Los Angeles attorney who heard juvenile dependency matters while serving as a Superior Court referee is not barred from representing residents of the MacLaren Children’s Center in suits against Los Angeles County, this district’s Court of Appeal has ruled.
Div. Three Friday overturned Los Angeles Superior Court Judge Morris B. Jones’ order barring Sanford Jossen from representing the plaintiffs in a class action charging that MacLaren employees routinely used force on children, injured them, and caused them to be falsely arrested by claiming they instigated the violence.
Jones’ order, overturned in an unpublished opinion by Justice Patti S. Kitching, stemmed from a series of tort cases that began before Jossen was appointed a part-time referee hearing juvenile dependency and delinquency cases.
Presiding Juvenile Court Judge Michael Nash appointed Jossen in December 1999 to represent a MacLaren resident identified only as Jazzmon R. The attorney presented a claim to the county on Jazzmon’s behalf the following month.
In March 2000, Judge Terry Friedmanówho had replaced Nash as presiding judgeónamed Jossen as an as-needed referee. In July of that year, while undergoing training as a referee, Jossen was relieved as Jazzmon’s counsel.
In September, after Jossen had begun hearing dependency cases, Jazzmon’s new counsel notified Jossen he was not going to file suit. Jossen, although no longer counsel of record, filed suit prior to the expiration of the limitations period.
In December, Friedman vacated the order replacing Jossen as Jazzmon’s counsel and appointed him again. The county responded by advising Jossen that it would no longer stipulate to him sitting as a referee in dependency cases, but he continued to sit in delinquency cases.
Friedman later appointed Jossen to represent five other MacLaren residents with potential claims against the county. In July 2001, he filed an amended complaint on behalf of all six children, seeking class action certification.
A month later Friedman relieved him of all referee assignments, declaring that he was doing so in order to avoid the appearance that the action was necessary to avoid the appearance that the court had a “role or position regarding high profile litigation involving agencies that commonly appear in Court.”
The county then moved to disqualify Jossen as counsel for the six children. Jones granted the motion, reasoning that Jossen’s dual role as referee and advocate created an appearance of impropriety and would prejudice the plaintiffs, and that having attended meetings of judicial officers, Jossen likely received nonpublic information.
But Kitching said the trial judge failed to properly balance the plaintiffs’ right to counsel against the factors alleged to warrant disqualification.
“The appearance of impropriety alone ordinarily cannot justify the disqualification of counsel,” the justice wrote. Unless the attorney has actually represented adverse parties simultaneously, she explained, “there must be evidence sufficient to support the conclusion that the attorney gained confidential or nonpublic information material to the current dispute in circumstances such that, as a matter of public policy, the attorney should not be permitted to benefit from use of the information in the current dispute.”
The county, she said, failed to prove that Jossen acquired nonpublic information material to the children’s lawsuit while serving as a referee.
“There is no evidence that Jossen served as a referee in any proceeding in which the alleged practices at MacLaren Children’s Center were at issue or that he received confidential communications from any party concerning that subject while serving as referee,” the justice wrote.
While Jossen was present at meetings where conditions at MacLaren were discussed, the justice explained, those discussions were general, rather than specific to the issues involved in the lawsuit.
Jossen argued his own appeal; Deputy County Counsel Jerry M. Custis argued for the county.
The case is Jazzmon R. v. County of Los Angeles, B153854.
Copyright 2002, Metropolitan News Company