Diller v. Safier CA1/3 ( 2020 )

Filed 9/17/20 Diller v. Safier CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
RONALD DILLER,
Plaintiff and A157698
Respondent,
(San Mateo County Super.
v. Ct. No. 18-PRO-01127)
JACLYN SAFIER et al.,
Defendants and
Appellants.
The law firm of Arnold & Porter Kay Scholer LLP (Arnold & Porter)
along with defendants Jaclyn Safier (Jackie), The Helen Diller Foundation,
and The Helen Diller Family Foundation appeal the trial court’s order
granting plaintiff Ronald Diller’s (Ron) motion to disqualify Arnold & Porter
from continuing to represent defendants in a civil action involving Jackie and
Ron’s parents’ trust.1 We affirm.
1 For ease of reference, and with no disrespect intended, we refer to the
parties and individuals who share the last name by their first names.
1
FACTUAL AND PROCEDURAL BACKGROUND
The facts relating to the trust action are detailed in our prior opinion,
Diller v. Safier (Jun. 23, 2020, A157498 [non pub. opn.]), of which we take
judicial notice. To summarize, Helen and Sanford Diller—parents of Ron and
Jackie (and a third child Bradley, who is not a party to the action)—built a
successful real estate development and property management company and
donated or committed over one billion dollars to philanthropic and charitable
causes. In 1981, they created the DNS Trust which provided in part that
upon the death of the first spouse: (1) the deceased spouse’s share of the
assets would be placed in irrevocable sub-trusts; and (2) the surviving
spouse’s share of the assets would be placed in a Survivor’s Trust, which
would set forth the surviving spouse’s testamentary wishes and remain
revocable during that spouse’s lifetime.
Helen died in 2015. Under the terms of the DNS Trust, Helen’s one-
half share of the marital assets was placed in irrevocable sub-trusts and
Sanford became trustee of a Survivor’s Trust that contained his one-half
share of the marital assets. According to Ron, Helen said on many occasions
that she was leaving a “legacy” for her family, i.e., leaving some or all of her
share of the estate to her children and grandchildren. Ron did not seek
copies of any trust documents at the time of Helen’s death as he did not
expect any immediate inheritance. Rather, he believed Helen’s assets would
be placed in irrevocable sub-trusts that would be distributed upon Sanford’s
death.
Sanford died in 2018. Shortly thereafter, Helen and Sanford’s long-
time estate planning attorney, Thomas Richardson of Arnold & Porter,
informed Ron that Ron was the beneficiary of a $3 million trust of which
Richardson was trustee, and that funds would be distributed to Ron for
2
“medical emergencies and financial exigencies only.” Richardson also
informed Ron that Jackie was successor trustee of the Survivor’s Trust and
had retained Richardson to represent her in that capacity. Ron asked
Richardson for copies of his parents’ trusts, including the DNS Trust, which
he believed set forth his mother’s intent to leave a family legacy. Richardson
denied the request, noted the Survivor’s Trust contained a no-contest clause,
and cautioned Ron “against taking any actions that might jeopardize your
and your children’s inheritance under the trust.”
On July 31, 2018, Ron filed a civil action in San Francisco Superior
Court against Jackie, The Helen Diller Foundation, and The Helen Diller
Family Foundation (against the foundations only to the extent they received
assets owing to Ron). He alleged Jackie interfered with Helen’s intent to
leave a family legacy by, among other things: concealing crucial information
regarding the trusts; signing, without authority, an amendment to the
Survivor’s Trust on behalf of Sanford the day he died; “silenc[ing]” Helen’s
caretaker who was privy to the wrongdoing by giving her a “pay[] off” of
$2.5 million and a Porsche; and threatening Ron and sibling Bradley with
disinheritance as to them and their children if they “collaborat[ed] with or
even discuss[ed] any possible claims” with each other. In his amended
(operative) complaint, Ron alleged that because Sanford and Jackie did not
like that Helen had left a family legacy, Arnold & Porter/Richardson drafted
trust documents allowing Sanford to improperly funnel the funds from
Helen’s sub-trust—which was supposed to have become irrevocable upon her
death—to Sanford’s Survivor’s Trust so that Sanford could control the funds
and he and Jackie could thwart Helen’s testamentary wishes.
Defendants retained a number of attorneys from several law firms
including Arnold & Porter to defend against Ron’s action. They filed a
3
successful motion to transfer the action to San Mateo Superior Court in
addition to a petition for the sale of real estate and petition for instructions
on how Jackie should proceed in her capacity as successor trustee of the
Survivor’s Trust.
Ron filed an anti-SLAPP motion (Code Civ. Proc., § 425.16).2 A few
months later, after learning through discovery that Arnold & Porter had
served as Helen’s estate planning attorney for many years, Ron filed the
motion at issue in this case—a motion to disqualify Arnold & Porter from
continuing to represent defendants. He asserted Arnold & Porter had nine
conflicting roles as: (1) Helen and Sanford’s long-time estate planning
attorney; (2) Sanford’s estate planning attorney upon Helen’s death;
(3) counsel to Sanford’s estate upon Sanford’s death; (4) Jackie’s attorney in
her capacity as successor trustee; (5) debt advisor to Jackie in connection
with her role in the family company; (6) trustee of Ron’s $3 million trust;
(7) legal counsel to The Helen Diller Family Foundation, which Helen
controlled; (8) legal counsel to The Helen Diller Foundation, which, according
to Ron, Richardson formed for Sanford after Helen’s death as part of
Richardson’s/Jackie’s/Sanford’s scheme to place Helen’s assets under
Sanford’s control; and (9) litigation attorneys to defendants in Ron’s action.
He argued that these “overlapping roles” created “competing fiduciary
duties” that were “impossible to fulfill” and required the firm to compromise
at his expense. For example, Arnold & Porter had a duty not to use former
client Helen’s confidential information and a duty to uphold her testamentary
wishes (as Ron was attempting to do through his civil action); at the same
2 The trial court granted Jackie’s petition for instructions and denied
Ron’s anti-SLAPP motion. Ron appealed the denial of his anti-SLAPP
motion, and we affirmed.
4
time, the firm had a conflicting duty of loyalty to current client Jackie who
was attempting to thwart Helen’s wishes. It was problematic that
Richardson, who drafted all relevant trust documents and represented almost
everyone involved, was a key witness in the action. Richardson’s fiduciary
duties to Ron as trustee to Ron’s $3 million trust also conflicted with the
firm’s loyalties to Sanford and Jackie. Ron explained that after Jackie
retained Arnold & Porter to defend her in this action, he asked Richardson to
step down as trustee of his $3 million trust. Richardson refused to do so, and
another Arnold & Porter attorney sent a letter to Ron stating there was no
conflict of interest and that the firm would seek attorney fees from Ron if he
tried to have Richardson removed as trustee.
In opposing the motion, defendants acknowledged Richardson and
Arnold & Porter’s various roles but argued Ron lacked standing to seek
disqualification because he was not a current or former client of the firm.
Defendants argued Richardson’s status as trustee of Ron’s $3 million trust,
“standing alone,” was not disqualifying, and that Ron’s “generalized
complaints about ‘multiple roles’ ” were not valid bases for disqualification.
Defendants also argued that the likelihood Richardson would be a witness
did not preclude the firm’s litigation attorneys from representing Jackie.
At a May 13, 2019 hearing on Ron’s motion to disqualify, the trial court
noted Ron could have named Arnold & Porter and Richardson as defendants
in the action. “And perhaps for some tactical reason [Ron] decided not to
allege them as co-defendants. . . [But if he did], there would be a clear conflict
between their interests and those of Jackie and the trust.” “Basically, [this
case is] about whether . . . Helen’s[] estate planning was fairly implemented,
or whether it was frustrated and defeated by Sanford and Jackie and others
working with them.” “The allegations are . . . that Sanford, after . . . Helen
5
predeceased him, . . . looted her estate, with the assistance of Jackie . . . and
the involvement of counsel, [and] that Helen’s estate planning was defeated
by their actions.” “Arnold & Porter was involved in . . . not only drafting a lot
of the documents but, also, . . . work[ed] together with Jackie after Sanford’s
death.” Ron’s attorney added it was also problematic that “Arnold & Porter is
[Ron’s] trustee under one of the looted sub[-]trusts and did not fight to fund
that sub[-]trust. . . .”
The trial court noted that Sullivan & Cromwell LLP (Sullivan &
Cromwell)—one of the other law firms representing Jackie—has “thousands”
of attorneys “globally,” and “if need be, . . . could assign several hundred
attorneys to assist in this said defense . . . involving more than a billion
dollars.” The court queried, “They don’t have either the resources or the
expertise to adequately defend the trust?” An Arnold & Porter attorney
responded that Jackie was entitled to her attorney of choice. A Sullivan &
Cromwell attorney added, “the question isn’t whether or not one firm can do
all this work. The question is whether the trustee is entitled to the counsel of
her choice; counsel that is steeped in some of this stuff. . . .” The court agreed
that a party’s right to choice in counsel is “an important interest.”
Ron’s attorney addressed the issue of standing and argued Ron did not
have to be an Arnold & Porter client to bring this motion. He stated, “[T]his
is a trust case. I think counsel just misunderstands what standing is here.
Our client is both a beneficiary and, of course, an heir.” The trial court
stated, “Of course, the court has an independent duty to ensure the integrity
of the proceedings, irrespective of the standing issue.” Ron’s attorney
responded, “Absolutely. And I would point out . . . that the confidential or
fiduciary relationship that needs to exist to require disqualification is not
absolute. It’s simply the prospect.” The court concluded, “I have no doubt
6
that the motion to disqualify is meritorious, and the court will exercise its
independent authority and grant the motion to disqualify [Arnold & Porter]
in this proceeding.” The court issued a written order stating Richardson and
Arnold & Porter are, effective immediately, “disqualified from serving as
legal counsel to any party, personal representative, estate, executrix, trust,
sub-trust, or trustee in the civil action . . . or the corresponding trust
proceeding . . . and are precluded from representing any party related to such
matters, including but not limited to, representing Defendants [Jackie and
the foundations], whether in relation to this civil litigation or in the
corresponding trust proceeding. Defendants and Arnold & Porter appeal.
DISCUSSION
Trial courts have great latitude in deciding whether to disqualify
counsel, and a decision on disqualification must be affirmed absent an abuse
of discretion. (Clark v. Superior Court (2011) 196 Cal. App. 4th 37, 46–47;
Federal Home Loan Mortgage Corp. v. La Conchita Ranch Co. (1998)
68 Cal. App. 4th 856, 860 (Federal Home Loan).) The trial court’s ruling is
presumed correct (H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991)
229 Cal. App. 3d 1445, 1451) and reversal is proper “only when there is no
reasonable basis for the trial court’s decision” (Federal Home Loan, at p. 860).
“A trial court’s authority to disqualify an attorney derives from the
power inherent in every court ‘[t]o control in furtherance of justice, the
conduct of its ministerial officers, and of all other persons in any manner
connected with a judicial proceeding before it, in every matter pertaining
thereto.’ (Code Civ. Proc., § 128, subd. (a)(5).)” (People ex rel. Dept. of Corps.
v. SpeeDee Oil Change Sysm., Inc. (1999) 20 Cal. 4th 1135, 1145 (SpeeDee
Oil).) Depending on the circumstances, a disqualification motion may involve
such considerations as a client’s right to chosen counsel, an attorney’s
7
interest in representing a client, the financial burden on a client to replace
disqualified counsel, and the possibility that tactical abuse underlies the
disqualification motion. (Id. at p. 1144.) Determining whether a conflict of
interest requires disqualification, however, “involves more than just the
interests of the parties.” (Id. at p. 1145.) “The paramount concern must be to
preserve public trust in the scrupulous administration of justice and the
integrity of the bar. The important right to counsel of one’s choice must yield
to ethical considerations that affect the fundamental principles of our judicial
process.” (Id. at pp. 1145–1146.)
A disqualifying conflict of interest can arise in a number of situations.
In cases of successive representation, where an attorney seeks to represent a
client with interests that are potentially adverse to a former client, “access to
confidential information by the attorney in the course of the first
representation . . . is presumed and disqualification of the attorney’s
representation of the second client is mandatory,” so long as there is a
“substantial relationship” between the subject matter of the representations.
(Flatt v. Superior Court (1994) 9 Cal. 4th 275, 283 [also holding that
disqualification of an attorney normally extends vicariously to the attorney’s
entire law firm].) This is because “[p]rotecting the confidentiality of
communications between attorney and client is fundamental to our legal
system.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1146; Mitchell v. Superior
Court (1984) 37 Cal. 3d 591, 599 [attorney-client privilege is “hallmark of
[our] jurisprudence”].) Thus, even after termination of a representation, “[it
is] a basic obligation of every attorney . . . ‘[t]o maintain inviolate the
confidence, and at every peril to himself or herself to preserve the secrets, of
his or her client.’ (Bus. & Prof. Code, § 6068, subd. (e).)” (SpeeDee Oil, supra,
20 Cal.4th at p. 1146.)
8
A related but distinct fundamental value of our legal system is the
attorney’s obligation of loyalty. Attorneys have a duty to maintain undivided
loyalty to their clients to avoid undermining public confidence in the legal
profession and the judicial process. (Santa Clara County Counsel Attys. Assn.
v. Woodside (1994) 7 Cal. 4th 525, 547–548, fn. 6, superseded by statute on
another ground as stated in Coachella Valley Mosquito and Vector Control
Dist. v. California Public Employment Relations Bd. (2005) 35 Cal. 4th 1072,
1084.) The effective functioning of the fiduciary relationship between
attorney and client depends on the client’s trust and confidence in counsel.
(Flatt v. Superior Court, supra, 9 Cal.4th at pp. 282, 285.) “An attorney’s
duty of loyalty to a client is not one that is capable of being divided. . . .” (Id.
at p. 282.)
In Fiduciary Tr. Int’l of Cal. v. Super. Ct. (2013) 218 Cal. App. 4th 465,
470, an attorney from the law firm of Sandler & Rosen drafted an estate plan
for a married couple. The husband Willet’s will established a marital trust—
which was expected to generate several million dollars in annual income—
and named his wife Betty as income beneficiary. (Id. at p. 471.) Upon Betty’s
death, the principal of the marital trust was to be transferred to a second
trust for the benefit of Willet’s four children—three children from his former
relationship and one daughter he had with Betty. (Ibid.) Betty’s will also left
the majority of her estate to the second trust (for the four children). (Ibid.)
After Willet died, however, Betty revoked her will and had a new instrument
drafted (apparently by a different law firm) transferring the majority of her
assets to a different trust for the sole benefit of her daughter. (Id. at p. 472.)
Following Betty’s death, a dispute arose regarding whether Willet’s three
other children should be required to pay estate and inheritance taxes that
were due on Betty’s assets, all of which Betty’s daughter was going to inherit.
9
(Ibid.) The three children, represented by Sandler & Rosen, argued this was
not Willet’s intent. (Ibid.) Fiduciary Trust International of California, as
administrator of Betty’s estate, moved to disqualify Sandler & Rosen because
of the firm’s prior representation of Betty. (Ibid.)
The Court of Appeal granted the motion, stating, “While Sandler &
Rosen initially represented both Betty and Willet, they have now chosen to
continue to represent only Willet, through [his three children], taking a
position adverse to Betty.” (Id. at p. 480.) Because Sandler & Rosen’s
representation of Betty was substantially related to the current tax dispute,
it was presumed the firm obtained confidential information in the course of
the first representation; thus, disqualification was mandatory. (Ibid.) The
court also stated it was problematic that the firm had failed to obtain written
consent for joint representation from Betty (or Willet) at the time it prepared
the couple’s estate planning papers. (Id. at p. 489.)
The risks involved with successive representation, including the
potential for breach of the attorney-client privilege and of an attorney’s
undivided duty of loyalty to a client, are similarly present in this case.3 It is
3 Defendants argue Fiduciary Tr. Int’l of Cal. v. Super. Ct., supra,
218 Cal. App. 4th 465 is distinguishable because Arnold & Porter is defending
(as opposed to attacking) former client Helen’s testamentary wishes.
Defendants argue their situation is more similar to Baker Manock & Jensen
v. Superior Court (2009) 175 Cal. App. 4th 1414, 1423, 1424 (Baker), in which
the Court of Appeal held that disqualification of a law firm—which previously
represented the decedent and was now representing the executor and
beneficiary—was improper where the interests of the executor and
beneficiary, and likely those of the decedent, were aligned and the law firm
was therefore attempting to uphold the decedent’s testamentary
wishes. Here, however, the core dispute in this action is whether Arnold &
Porter is in fact upholding former client Helen’s testamentary wishes or,
instead, is defending the wishes of subsequent and current clients Sanford
and Jackie, which differ from what Helen intended. The very nature of the
10
undisputed that Arnold & Porter, throughout the years, has represented or
currently represents most of the key players involved in the issues relating to
Ron’s action. As noted, the firm represented Helen (and Sanford) for many
years, represented Sanford after Helen’s death, was legal counsel to Sanford’s
estate after his death, is trustee to Ron’s $3 million trust, is legal counsel to
the foundation defendants, and represents Jackie in multiple capacities.
Most, if not all, of these representations involve the same or substantially
similar subject matter that is at issue in Ron’s action.
In its role as Helen’s estate planning attorney, Arnold & Porter drafted
many trust documents and presumably had extensive communications with
her regarding those documents. We also presume Arnold & Porter obtained
confidential information from Helen regarding her testamentary wishes—the
issue that is at the heart of the current dispute. After Helen’s death, Arnold
& Porter engaged in successive representation of Sanford individually, then
Jackie, in various capacities, despite the fact that Sanford and Jackie, at
least potentially, had interests that conflicted with those of Helen. For
example, Ron alleges—and defendants do not dispute—that Helen and
Sanford had a troubled marriage, that Sanford cut of all contact with Ron
and insisted that Helen do the same, and that Helen, despite this, continued
to share a close and loving relationship with Ron. Jackie, on the other hand,
was close to Sanford, and their interests were aligned. It is rational to
dispute in this case involves the problems that arise with successive
representation and calls into question Arnold & Porter’s duties of loyalty and
confidentiality owed to its various clients. Further, as noted by the Court of
Appeal in Baker, it is not uncommon for law firms to represent different
family members at various times in estate planning matters, but
disqualification is still proper where there is an actual or potential conflict of
interest, which there is in this case. (Ibid.)
11
conclude based on these family dynamics that some differences would arise in
connection with the various parties’ testamentary wishes and goals. (See
Flatt v. Superior Court, supra, 9 Cal.4th at p. 283 [the potential for conflict is
sufficient to support disqualification].)4 There is nothing in the record
indicating Arnold & Porter obtained Helen’s written consent for joint
representation of her and Sanford, or successive representation of Sanford,
and later Jackie. (See City Nat’l Bank v. Adams (2002) 96 Cal. App. 4th 315,
318 [absent the former client’s informed written consent, a lawyer may not
represent a party whose interests may be adverse to the former client
because doing so poses distinct risks].)
Further, as current counsel for Jackie in various capacities, including
defending her in this action, Arnold & Porter owes Jackie a duty of undivided
loyalty, but at the same time has a continuing duty of loyalty and
confidentiality to Helen, whose testamentary intent and wishes may have
differed from those of Sanford and Jackie. Arnold & Porter is therefore in the
untenable position of potentially defending Jackie against Helen’s wishes
(and Ron’s position) and having to choose between its duties of loyalties and
confidentiality owed to each, perhaps to the benefit of its current client,
Jackie, and to the detriment of Helen and Ron. For example, if Arnold &
Porter had information that Helen actually intended to leave a more
4 Ron requests that we take judicial notice of evidence that supports his
allegations of a potential or actual conflict. He acknowledges these
documents were not yet available at the time the trial court issued its order
on his motion to disqualify. Because these documents were not presented
below and are unnecessary to resolution of the issues presented in this
appeal, we deny his request for judicial notice. (Arce v. Kaiser Foundation
Health Plan (2010) 181 Cal. App. 4th 471, 483, fn. 5 [documents that were not
before the trial court are not proper subjects of judicial notice]; Gbur v. Cohen
(1979) 93 Cal. App. 3d 296, 301 [courts will take judicial notice of only relevant
information].)
12
significant estate to Ron, or that she did not intend for Sanford to transfer
funds from her sub-trusts to the Survivor’s Trust after her death, the firm
would be in the difficult position of having to choose between its duties of
loyalty to uphold Helen’s testamentary wishes or to defend Jackie against
Ron’s action.5
Finally, Arnold & Porter, through Richardson, has also taken on the
role of trustee for Ron’s $3 million trust, even though this creates a fiduciary
relationship between the firm and Ron, and despite the fact that Ron is
required to divulge personal/confidential information about himself in order
to receive any of the funds, which are to be distributed only for medical and
financial exigencies. (See, e.g., Uzyel v. Kadisha (2010) 188 Cal. App. 4th 866,
905 [there is a fiduciary relationship, the duty of loyalty of which is the most
important, between a trustee and a beneficiary]; Morales v. Field, De Goff,
Huppert & MacGowan (1979) 99 Cal. App. 3d 307, 316 [same]). As noted,
Richardson refused to step down from this role when requested and Arnold &
Porter informed Ron of its intent to seek attorney fees from Ron if he
continued in his efforts to have Richardson removed. Under the
circumstances of this case, and in light of the additional fact that Richardson
is a crucial witness in this action,6 the trial court was well within its
discretion in granting Ron’s motion to disqualify.
5 We note the firm has an additional interest in this case—to defend
Ron’s attack against the firm, i.e., that Richardson assisted Sanford and
Jackie in thwarting Helen’s wishes after her death. Although Richardson
and Arnold & Porter have not been named as defendants, the fact that they
could be, and that they were heavily involved in drafting all of the trust
documents that are being challenged in this case would undoubtedly cause
them to try to defend their own actions.
6 While perhaps not dispositive on its own, we note the trial court could
have properly considered the fact that Arnold & Porter, through Richardson,
is both a key witness and advocate in the action. (See Kennedy v. Eldridge
13
Defendants argue the trial court erred in disqualifying Arnold & Porter
because Ron lacked standing, as he is not a current or former client on the
firm. We reject this argument. “Generally, before the disqualification of an
attorney is proper, the complaining party must have or must have had an
attorney-client relationship with that attorney. [Citation.]” (Great Lakes
Construction, Inc. v. Burman (2010) 186 Cal. App. 4th 1347, 1356.) However,
“no California case has held that only a client or former client may bring a
disqualification motion. The reason is simple: ‘ “ ‘A trial court’s authority to
disqualify an attorney derives from the power inherent in every court “[t]o
control in furtherance of justice, the conduct of its ministerial officers, and of
all other persons in any manner connected with a judicial proceeding before
it, in every matter pertaining thereto.” ’ ” ’ ” (Kennedy v. Eldridge, supra,
201 Cal.App.4th at p. 1204.) Thus, “ ‘where the ethical breach is “ ‘ “manifest
and glaring” ’ ” and so “ ‘infects the litigation in which disqualification is
sought that it impacts the moving party’s interest in a just and lawful
determination of [his or] her claims’ [citation], a nonclient might meet the
standing requirements to bring a motion to disqualify based upon a third
party conflict of interest or other ethical violation.” [Citation.]’ ” (Ibid.)
“Case law abounds with examples of orders disqualifying counsel that have
not been the product of motions by present or former clients.” (Ibid., citing,
e.g., Meza v. H. Muehlstein & Co., Inc. (2009) 176 Cal. App. 4th 969, 980–981
[law firm disqualified after it employed an attorney who was privy to an
(2011) 201 Cal. App. 4th 1197, 1200, 1202 [disqualification proper where it
was likely the attorney would provide important testimony in addition to
serving as counsel]; People v. Donaldson (2001) 93 Cal. App. 4th 916, 927–928
[“opposing counsel may be handicapped in challenging the credibility of the
lawyer [as a witness] when the lawyer also appears as an advocate in the
case].)
14
adversary’s privileged work product information]; Woods v. Superior Court
(1983) 149 Cal. App. 3d 931, 937 [disqualification of husband’s attorney was
proper in a divorce action where the attorney formerly represented the family
business].) “It makes no sense for a court to stand idly by and permit
conflicted counsel to participate in a case merely because neither a client nor
former client has brought a motion. As one court put it, ‘Protection of the
attorney-client privilege is not the only ground for a motion to disqualify an
attorney.’ [Citation.] ‘[T]he court has an independent interest in ensuring
trials are conducted within ethical standards of the profession and that legal
proceedings appear fair to all that observe them.’ [Citation.] Accordingly, . . .
where an attorney’s continued representation threatens an opposing litigant
with cognizable injury or would undermine the integrity of the judicial
process, the trial court may grant a motion for disqualification, regardless of
whether a motion is brought by a present or former client of recused counsel.”
(Kennedy v. Eldridge, supra, 201 Cal.App.4th at pp. 1204–1205.)
Here, Arnold & Porter’s disqualification was proper due to its heavy
involvement in the dispute as former or current counsel for most of the key
players, as trustee to Ron’s $3 million trust, and as potential defendants,
among other roles. It is a case in which the “manifest and glaring” nature of
the potential for conflict and breach of fiduciary duties and duties of loyalty is
likely to impact Ron’s right to a fair determination of his claims. He
therefore has an interest in having the law firm removed, and standing to
bring the motion. At the same time, the trial court has an interest in
preserving the public’s trust in the administration of justice and upholding
the integrity of the bar by not allowing a law firm, which has so many
potential or actual conflicts as a result of the multiple roles it has played over
15
the years, to continue to represent any parties in this action. It therefore had
an independent interest in having Arnold & Porter removed as counsel.
Defendants further argue the order must be reversed because the trial
court failed to state its findings on the record, and because some of the
statements it made—e.g., that Sullivan & Cromwell can adequately defend
Jackie—show it considered improper factors in reaching its decision. We
disagree. When ruling on a disqualification motion, the court must indicate
on the record that it has considered all appropriate factors and must give its
factual findings in support of the required balancing process. (Smith, Smith
& Kring v. Superior Court (1997) 60 Cal. App. 4th 573, 578; Lyle v. Superior
Court (1981) 122 Cal. App. 3d 470, 482-483.) Even where the record
demonstrates the court’s reasoning was unsound, however, the ruling will be
affirmed so long as it can be supported by any legal theory. (Day v. Alta
Bates Med. Ctr. (2002) 98 Cal. App. 4th 243, 252, fn.1.)
Here, the record shows the trial court considered the appropriate
factors and balanced defendants’ interests against public policy concerns such
as upholding the integrity of the judicial process. For example, the court
noted that a party’s right to choice in counsel is “an important interest.” The
court’s statements regarding Sullivan & Cromwell’s ability to adequately
represent defendants show the court considered another relevant factor—the
potential for prejudice to defendants in the event Arnold & Porter is removed
as counsel. (SpeeDee Oil, supra, 20 Cal.4th at p. 1144 [burden on client to
replace disqualified counsel is proper consideration].) The record shows the
court then balanced those interests against its “duty to ensure the integrity of
the proceedings,” highlighting Arnold & Porter’s extensive involvement in the
case of “not only drafting a lot of the documents,” but also working closely
with Sanford and Jackie after Helen’s death.
16
In any event, defendants do not claim the trial court’s decision would
have been different had it made more specific findings, nor do they point to
any evidence to show the result would have been more favorable to them.
(Cal. Const., Art. VI, section 13; Code Civ. Proc., § 475 [reversal only if “a
different result would have been probable”].) On appeal, the appellants have
the burden of showing not only that the trial court erred, but also that in the
absence of the error, “ ‘it is reasonably probable that a result more favorable
to the appealing party would have been reached.’ ” (Cassim v. Allstate Ins.
Co. (2004) 33 Cal. 4th 780, 800.) Defendants have made no such showing.
DISPOSITION
The trial court’s June 11, 2019 order granting Ron’s motion to
disqualify Arnold & Porter is affirmed. Ron’s request for judicial notice is
denied. Ron shall recover his costs on appeal.
17
_________________________
Petrou, J.
WE CONCUR:
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Fujisaki, Acting P.J.
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Jackson, J.
Diller v. Safier et al./A157698
18