Rothstein v. Samsung Electronics America CA2/3 ( 2023 )

Filed 12/20/23 Rothstein v. Samsung Electronics America CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PAUL S. ROTHSTEIN, B324148
Appellant, Los Angeles County
Super. Ct. No.
v. 20STCV20962
SAMSUNG ELECTRONICS
AMERICA, INC., et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Maren E. Nelson, Judge. Reversed.
Paul S. Rothstein, in pro. per.; Spitz Law Group, Jeffrey
Spitz; Center for Constitutional Litigation and Robert S. Peck for
Appellant.
Hunton Andrews Kurth, Brandon M. Marvisi, Michael J.
Mueller, and Trevor S. Cox for Defendants and Respondents.
_______________________________________
INTRODUCTION
Appellant Paul S. Rothstein appeals the order granting the
motion to revoke his pro hac vice admission, filed by defendants
Samsung Electronics America, Inc. (SEA) and Samsung
Electronics Co., Ltd. (together, defendants). The court concluded
that Rothstein violated rule 4.2 of the State Bar Rules of
Professional Conduct (Rule 4.2) by contacting non-party A-Plus
Electronics and Engineering (A-Plus), an authorized service
center (ASC) of defendants, because Rothstein argued that ASCs
are defendants’ agents and Rothstein knew that defendants were
represented. On appeal, Rothstein contends, among other things,
that the court failed to decide whether A-Plus was defendants’
agent, erred in concluding that the topic of the communications
was any act or omission by A-Plus that could be imputed to
defendants, erred in applying a rebuttable presumption of
disqualification, and failed to find that the violation would have
an ongoing effect on litigation. Although Rothstein’s conduct
gives us pause, we agree with him in part and reverse.
FACTS AND PROCEDURAL BACKGROUND
This appeal arises from a putative class action alleging that
defendants violated Civil Code1 section 1793.03, subdivision (b),
of the Song-Beverly Consumer Warranty Act (§ 1790 et seq.) by
failing to make replacement parts for plasma televisions
available for the required seven years post-manufacture.2
1 All undesignated statutory references are to the Civil Code.
2 Section 1793.03, subdivision (b), provides: “Every manufacturer
making an express warranty with respect to an electronic or appliance
product described in subdivision (h), (i), (j), or (k) of Section 9801 of the
2
Rothstein, who is a member of the State Bar of Florida, filed the
instant action against defendants and their ASC, Service Quick,
Inc. (Service Quick),3 on May 29, 2020 on behalf of plaintiff
Manuel Rivera-Melo. In July 2020, the court granted Rothstein’s
application for pro hac vice admission. The operative second
amended complaint (SAC), filed on November 17, 2021, added Eli
Cesaletti as a plaintiff.
The merits of the underlying litigation are not at issue.
Rather, this appeal concerns the court’s order revoking
Rothstein’s pro hac vice status based on its finding that Rothstein
violated Rule 4.2 when he directly contacted A-Plus, one of
defendants’ ASCs, during the pendency of the litigation.
Prior to filing the instant action, Rothstein filed a
complaint in federal court in the Northern District of California
in April 2018 on behalf of Alexis Bronson against defendants,
captioned Bronson v. Samsung Electronics America, Inc. (N.D.
Cal., No. 3:18-cv-02300-WHA) (Bronson).4 In June 2019,
Business and Professions Code, with a wholesale price to the retailer of
one hundred dollars ($100) or more, shall make available to service
and repair facilities sufficient service literature and functional parts to
effect the repair of a product for at least seven years after the date a
product model or type was manufactured, regardless of whether the
seven-year period exceeds the warranty period for the product.”
3 Service Quick has since been dismissed from the action.
4 In May 2023, Rothstein filed a motion for judicial notice in this
appeal. By order filed June 12, 2023, we deferred ruling on the motion
to our decision of this appeal on the merits. Rothstein seeks judicial
notice of briefs (Exs. A, F), complaints (Exs. B, H), discovery responses
(Exs. C, D), an order (Ex. E), dismissals (Ex. I, J), and dockets (Exs. G,
K) from Bronson and another federal action brought by Cesaletti. “This
court may take judicial notice of court records outside the record on
appeal, including unpublished orders and decisions in a related federal
3
Rothstein persuaded the judge in the Bronson action that an
ASC’s alleged statement to a consumer that replacement parts
were not available fell within an exception to the federal hearsay
rules because “[t]he statements made by the authorized repair-
center employee . . . were made by Samsung’s agent.” The
Bronson action settled in May 2021 and was dismissed.
Cesaletti, represented by Rothstein, previously sued
defendants in federal court on December 1, 2020. He voluntarily
dismissed his claims on March 16, 2021.
Rothstein’s litigation strategy in this case involved
establishing that A-Plus and other ASCs, including Service
Quick, were Samsung’s agents. The operative second amended
complaint alleges that the defendants failed to maintain an
adequate inventory of parts or otherwise make functional parts
available to its ASCs for the required seven years, in violation of
proceeding. [Citations.] However, a litigant must demonstrate that the
matter as to which judicial notice is sought is both relevant to and
helpful toward resolving the matters before this court.” (Deveny v.
Entropin, Inc. (2006) 139 Cal.App.4th 408, 418.) The federal actions
involved the same defendants and the same counsel for plaintiffs and
defendants. Both parties discussed the existence and timing of the
federal actions below, and most of the materials of which Rothstein
seeks judicial notice merely substantiate those discussions. Defendants
cited Exhibit E in their briefing before the trial court and Exhibit D is
already part of the record. We deny the request with respect to
Exhibits A, C, and F, which we do not find helpful or necessary to our
decision, but otherwise grant the motion. (Evid. Code, § 452, subd. (d).)
We do not take judicial notice of the truth of the factual matters
asserted in the documents. (Glaski v. Bank of America (2013) 218
Cal.App.4th 1079, 1090.)
4
section 1793.03, subdivision (b).5 Plaintiffs allege that defendants’
ASCs told them that parts were not available to repair their
Samsung plasma televisions. Plaintiffs further allege that ASCs
act as defendants’ apparent and/or actual agents in any
representations about the availability of parts to consumers. The
defendants and the ASCs, as their agents, make up the
communication chain necessary to make repair parts available to
consumers to effect repairs through ASCs. Defendants
communicate the availability of parts through a national
database, to which ASCs have access. As the final link to
consumers, ASCs, with actual or apparent agency on behalf of
Samsung, communicate the availability of repair parts. Plaintiffs
allege that defendants are liable for any failure in the
communication chain.
During a hearing on March 22, 2021, Rothstein argued:
“[W]e’re prepared to show the court that the part was not
available for Mr. Melo when he went to the authorized service
provider, that the authorized service provider, an agent of
Samsung, did not know that — if the part was available, they
were not provided information that that part was available.
They’re an agent of Samsung.” Similarly, at a status conference
on August 24, 2021, Rothstein argued: “[T]he guts of this case at
this point are that, one, Samsung is responsible for the
communications of its agents. And if it’s an authorized service
provider, they provided incorrect information to the consumer.
Does the consumer have a right to rely on that information? We
5 The original complaint and first amended complaint similarly alleged
that Service Quick “acted with apparent or actual agency on behalf of
[defendants].”
5
submit that it does.” In March 2022, Rothstein, on behalf of
plaintiffs, served requests for admission on SEA, including:
“Admit that in October 2020, [A-Plus] was SEA’s agent.”
On June 14, 2022, defendants filed a motion to revoke the
pro hac vice status of Rothstein, and effectively disqualify him
from representing plaintiffs, contending that Rothstein violated
Rule 4.2 (b)(2) based on communications Rothstein had with A-
Plus. The motion was accompanied by the declarations of two A-
Plus employees. Michael Braude, a project manager for A-Plus,
stated in his declaration that he spoke with Rothstein “in the
summer of 2019 or 2020” and that Rothstein “asked questions
about replacement PDP assemblies for a Samsung plasma
television,” and Braude referred him to one of Braude’s
colleagues, Carmen Huma. In December of 2020, Braude received
a call from Rothstein and a woman. He believed that Rothstein
asked about the availability of parts for a Samsung plasma
television and asked Braude to provide a written statement that
a part was not available. Braude again referred Rothstein to
Huma.
In her declaration, Huma stated that, to the best of her
recollection, she received at least two calls from Rothstein and a
woman in his office. She believed the first was in the summer of
2019, but was not certain. Huma believed that, during the first
call, Rothstein asked about the availability of replacement parts
for the PN51F8500 Samsung plasma television and for a list of
customers who had tried to get their televisions repaired but
could not due to a lack of replacement parts. Huma did not
remember what specific information she provided. Huma later
received another call from Rothstein and the woman in his office
and believed that they asked about the availability of
6
replacement parts for Samsung plasma televisions generally,
rather than a specific model. Rothstein asked for an affidavit
regarding the availability of parts, which Huma did not provide.
Using a program on her phone that permanently logs the phone
numbers of all callers, Huma verified that she had received at
least one call from Rothstein’s office phone number. Huma
recalled that she received enough calls from Rothstein that she
blocked his number, although she did not have record of this
because she had switched phones since the time she received his
calls.
In further support of their motion, defendants cited
Cesaletti’s response to defendants’ request for “all the facts
supporting the contention in Paragraph 50 of the Second
Amended/Supplemental Class Action Complaint that ‘[u]pon
information and belief, Samsung Authorized Service Centers, tell
consumers that parts are not available to repair their Samsung
plasma televisions.’ ” In a supplemental response, Cesaletti
stated: “I have become aware through this litigation that Mike at
A-plus, through his associate name Carmen (phonetic), could
check the Samsung GSPN database for parts. In or around
October 7–10, 2020 and again in December 2020, Mike indicated
that after checking with Carmen who consulted GSPN, that he
knows the parts were not available and they were not available
for a long time. When he checked the model number of my
television, he indicated that the parts were not available.”
Defendants’ attorney further declared: “On April 29, 2022,
counsel for the parties, including Mr. Rothstein and I, conferred
by telephone. Mr. Rothstein refused to substantively discuss his
communications with A-Plus, including whether those
7
communications violated California Rule of Professional Conduct
4.2.”
In response to the motion, plaintiffs argued that Samsung
did “not identify any information [Braude and Huma] actually
revealed that would bias the litigation” and thus failed to
demonstrate that any new, material information revealed in
communications with A-Plus would have any continuing effect on
the litigation. They further contended that Rothstein’s limited
communications with A-Plus did not violate Rule 4.2 because
“Samsung does not contend that ASCs are officers, directors, or
managing agents of the corporation to fall within the ‘control
group’ specified in Rule 4.2(B)(2)” and because its
communications with A-Plus involved only its percipient
knowledge, not its own actions or omissions concerning the
dispute. They also argued that actual knowledge of
representation is a bright line test for violation of Rule 4.2, that
“Samsung has not provided any evidence that A-Plus was
represented,” and that, “[w]ithout actual representation, there
would be no way to have actual knowledge of representation.”
Plaintiffs further argued that defendants had consented to
the communication by refusing to answer discovery on behalf of
its purported agents and by advising plaintiffs to seek discovery
directly from ASCs in the Bronson litigation, and that consent
provides a complete defense to a would-be violation. Finally, they
argued that defendants had been on notice since 2019 that the
information that ASCs relayed to customers based on their
review of defendants’ database was at issue, yet defendants “did
nothing to eliminate the possibility of ex parte contact with
ASCs.”
8
In a declaration filed with the response, Rothstein stated
that he had limited communications with A-Plus in October and
December of 2020. No person with whom he spoke at A-Plus
indicated that either an attorney represented A-Plus or he should
speak to an attorney. Rothstein represented that, before he
communicated with A-Plus, he “had a great body of information
from Samsung through previous litigation and independent fact
investigation,” that he had “no notes and no memory that I
obtained any new material information from my communications
with A-Plus,” and that his “communications with A-Plus did not
provide any information other than general information about
the availability of parts as reported on Samsung’s database.” He
further noted that the communications with A-Plus took place
before Cesaletti was added as a plaintiff and before he alleged
that A-Plus was an agent of defendants. Rothstein also stated
that, in the Bronson action, Rothstein prepared subpoenas for
repair facilities and recalled “Samsung’s counsel directing the
plaintiffs to obtain information from ASCs because that was not
information Samsung had or was willing to obtain.” His
“communications with A-Plus took place after Samsung refused
to respond to discovery in Bronson/Hardin on behalf of its
agents.”
Plaintiffs also submitted the declaration of Robert L. Kehr,
an expert in attorney professional responsibility, in support of the
response. Kehr opined that Rothstein did not violate Rule 4.2,
and that there is no proper basis for disqualification even if there
were a Rule 4.2 violation. Kehr opined that the purpose of Rule
4.2 (b)(2) is to prevent ex parte contact with employees who
engaged in acts or conduct for which the employer might be
liable. Because section 1793.03 imposes liability only on a
9
manufacturer, he opined that there is no conduct on the part of
A-Plus for which defendants might be liable because any liability
would rest solely on defendants’ own conduct and thus Rule
4.2(b)(2) does not apply. Kehr further opined that disqualification
was justified only if there might be a continuing litigation effect,
i.e., if the lawyer had obtained material information he could use
to his advantage from an individual who was off limits under
Rule 4.2. However, defendants had not demonstrated a
continuing litigation effect or that Rothstein had obtained
material information.
On reply, defendants argued that Rule 4.2(b) applies to
Rothstein’s communications, that they did not consent to
Rothstein’s communications with A-Plus, and that the Kehr
declaration should be given no weight. For the first time, they
also argued that revocation of his pro hac vice admission was
appropriate because “[c]ourts employ a rebuttable presumption of
disqualification when the challenged party alone holds the
information wrongfully obtained.” Defendants cited In re
Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596
(Complex Asbestos) for this proposition. Defendants further
asserted that Rothstein “continues to hide the specific
information that A-Plus provided to him during the course of his
improper communications” and “never discloses to the Court how
many conversations he had with A-Plus employees, which
employees he spoke with, when he spoke with them, or what the
employees told him.”
Following oral argument, the court issued an order
granting the motion to revoke Rothstein’s pro hac vice status. The
court declined to consider the Kehr declaration on the grounds
that “[l]egal conclusions, even if contained in an expert opinion,
10
are improper and inadmissible.” The court concluded that
Rothstein violated Rule 4.2 because “[w]hen Rothstein called A-
Plus, Plaintiffs were pursuing a theory of the case based on the
agency status of the ASCs.” The court rejected the argument that
its ruling on demurrer that section 1793.03, subdivision (b), “does
not make manufacturers liable for inaccuracies if an ASC advises
a customer that a needed part is not available when such parts
are available” did not “foreclose all possibilities that Samsung
could be liable for its ASCs conduct.” The court also observed that
Rothstein contacted A-Plus long before its ruling on defendants’
demurrer. The court further rejected the arguments that no
violation had occurred because, at the time of the challenged
communications, Cesaletti (who had sought repairs from A-Plus)
was not yet a party, it was not yet pleaded that A-Plus was
defendants’ agent, and defendants had consented to Rothstein’s
contact by telling Rothstein to contact ASCs directly in the
Bronson action.
The court concluded that revocation of Rothstein’s pro hac
vice status was warranted. Three factors were relevant to the
court’s determination: (1) “the extent of information gained by
Rothstein as a result of the communications is unclear,” which
led it to apply the Complex Asbestos rebuttable presumption; (2)
“Plaintiffs have indicated that they do not wish to continue with
this action and will seek to be dismissed from it” and any
prejudice to the unnamed clients who will seek to be substituted
in is “thin”; and (3) that the motion to disqualify was not the
result of tactical abuse but defendants’ “legitimate concern that
its reading of the statute may be incorrect, that Rothstein will
improperly use the statements, and that such statements are
likely to have a ‘ “continuing effect on future judicial
11
proceedings.” ’ [Citation.]” In holding that the Complex Asbestos
rebuttable presumption applied, the court adopted defendants’
formulation of the presumption as applying “when the challenged
party alone holds the information wrongfully obtained.” The court
concluded that “maintenance of the integrity of the proceedings is
paramount,” “Plaintiffs will suffer little or no prejudice,” and
“[t]he prejudice alleged to be suffered by other clients of
Rothstein is not persuasive.”
Rothstein filed a petition for writ of mandate, which this
court denied.6 He also timely appealed.
DISCUSSION
Rothstein contends that the trial court erred both in finding
a violation of Rule 4.2 and, if a violation did occur, in revoking his
pro hac vice admission. He contends that the court could not find
a violation of Rule 4.2 without making a dispositive finding that
A-Plus is an agent of defendants, that the court’s prior ruling
establishes that defendants could not face liability for the acts or
omissions of ASCs, and that the communications did not concern
the acts or omissions of the ASCs. Rothstein asserts that
defendants repeatedly denied agency and refused to answer
6 “A summary denial of a writ petition does not establish law of the
case whether or not that denial is intended to be on the merits or is
based on some other reason.” (Kowis v. Howard (1992) 3 Cal.4th 888,
899.) “When the court denies a writ petition without issuing an
alternative writ, it does not take jurisdiction over the case; it does not
give the legal issue full plenary review. A summary denial does not
decide a ‘cause’ [citation], and should therefore not be given law of the
case effect.” (Id. at p. 897.)
12
discovery on behalf of ASCs in the Bronson action, and therefore
consented to Rothstein’s communications with them.
Rothstein further argues that revocation was not an
appropriate remedy because defendants failed to show that the
communications with A-Plus would have a continuing effect on
the litigation. He contends that there should have been no
burden shifting under Complex Asbestos because: (1) defendants
failed to identify “the nature of the information and its material
relationship to the proceeding”; (2) he was not the only person
with access to the information exchanged in communications
with Samsung’s witnesses; and (3) “employees of A-Plus, did not
breach any obligation of confidentiality and were not employed by
or even very cooperative with Rothstein.” Finally, he argues that
the court abused its discretion in excluding the Kehr declaration.7
Defendants argue that the court properly found a violation
of Rule 4.2 because Rothstein’s communications with A-Plus
involved matters that “may be” binding on defendants.
Defendants refute that they invited the communications by
7 Defendants have moved to strike portions of Rothstein’s reply brief
because they claim the argument that A-Plus was not a represented
party was not made below or in Rothstein’s opening brief. However,
Rothstein argued below in connection with the actual knowledge
requirement of Rule 4.2 that “Samsung has not shown any evidence
that A-Plus was represented (either by Samsung’s counsel or
otherwise)” and “Samsung has not provided any evidence that A-Plus
was represented.” Further, Rothstein argued in his opening brief:
“There is nothing to suggest that A-Plus was actually represented or
told Rothstein it was represented by Samsung’s attorneys related to
the subject matter of the conversations.” Although we do not disagree
with defendants that the argument was made in greater depth in the
reply than any point prior, we deny the motion. We note, however, that
this argument does not form the basis of our opinion.
13
declining to respond to discovery requests on behalf of ASCs in
Bronson. Defendants also contend that revocation of Rothstein’s
pro hac vice status was appropriate because the court did find an
ongoing litigation effect and because the application of the
Complex Asbestos rebuttable presumption of disqualification was
appropriate. Finally, they contend that the court properly
declined to consider the Kehr declaration.
We conclude that the court did not abuse its discretion in
excluding the Kehr declaration. Without reaching all of the many
arguments advanced by the parties on the merits, we also
conclude that the order revoking Rothstein’s pro hac vice status
must be reversed.
1. The Exclusion of Rothstein’s Expert Evidence
1.1. Standard of Review
“ ‘We apply the abuse of discretion standard when
reviewing the trial court’s rulings on evidentiary objections.’
[Citation.] An ‘erroneous evidentiary ruling requires reversal only
if “there is a reasonable probability that a result more favorable
to the appealing party would have been reached in the absence of
the error.” [Citation.]’ [Citation.]” (Daimler Trucks North America
LLC v. Superior Court (2022) 80 Cal.App.5th 946, 960.) This
includes a trial court’s exclusion of an expert opinion. (Avivi v.
Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th
463, 467.)
1.2. The court did not abuse its discretion in
disregarding the Kehr declaration.
The court excluded the Kehr declaration on the ground that
“[l]egal conclusions, even if contained in an expert opinion, are
improper and inadmissible.” The court cited several authorities
14
for this proposition, including WRI Opportunity Loans II, LLC v.
Cooper (2007) 154 Cal.App.4th 525. Rothstein argues that the
court erred because expert declarations are routinely admitted in
cases concerning the revocation of pro hac vice status (see Sheller
v. Superior Court (2008) 158 Cal.App.4th 1697, 1703 (Sheller);
Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1196
(Snider)), as well as in legal malpractice cases.
In neither Sheller nor Snider was the admissibility of an
expert opinion challenged or discussed in any depth. Moreover, it
is unclear why the admission of expert testimony in legal
malpractice cases is relevant here. “The general rule is that
expert evidence is required to establish legal malpractice,” unless
“the alleged malpractice is so utterly egregious and obvious that
no expert testimony is needed.” (O’Shea v. Lindenberg (2021) 64
Cal.App.5th 228, 236–237.) This is because “the legal malpractice
suit is but one variety of negligence action and is governed by the
general doctrines of pleading and proof prevailing in negligence
actions” and “questions of fact in a case such as the one at bench
require expert evidence.” (Lipscomb v. Krause (1978) 87
Cal.App.3d 970, 975.) Rothstein has not identified, nor are we
aware of, a general rule requiring expert testimony for a motion
to disqualify or revoke pro hac vice admission based on a
violation of the State Bar Rules of Professional Conduct.
Although “[a]dmissible expert opinion testimony is not
objectionable just because it embraces the ultimate issue to be
decided by the trier of fact,” the court correctly observed that “an
expert may not testify about issues of law or draw legal
conclusions.” (Nevarrez v. San Marino Skilled Nursing &
Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 122.) Kehr
drew a legal conclusion as to whether Rothstein violated Rule 4.2
15
based on facts he assumed to be true. While we do not dispute
that the testimony of ethics experts could be useful in cases such
as this, the court’s decision not to consider the Kehr declaration
was reasonable under the law and was not an abuse of discretion.
2. The Revocation of Rothstein’s Pro Hac Vice Admission
2.1. Standard of Review
“Code of Civil Procedure section 128, subdivision (a)(5)
gives courts the power to order a lawyer’s disqualification.” (DCH
Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 831.)
“An attorney appearing pro hac vice ‘is subject to the jurisdiction
of the courts of this state with respect to the law of this state
governing the conduct of attorneys to the same extent as a
member of the State Bar of California.’ ” (Sheller, supra, 158
Cal.App.4th at p. 1716, quoting Cal. Rules of Court, rule 9.40(f).)
“Given that a California trial court’s inherent power includes the
authority to disqualify a California attorney, and that revocation
of an out-of-state attorney’s pro hac vice status is, in effect, a
disqualification of the out-of-state attorney,” this Division has
concluded “that a California trial court’s inherent powers include
the authority to revoke an attorney’s pro hac vice status when
that attorney has engaged in conduct that would be sufficient to
disqualify a California attorney.” (Sheller, at p. 1716.)
“ ‘The authority to disqualify an attorney stems from the
trial court’s inherent power “[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.” [Citations.]’ ” (Cal Pak Delivery,
Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 8.) Our
Supreme Court set forth the standard of review for a
16
disqualification motion as follows: “Generally, a trial court’s
decision on a disqualification motion is reviewed for abuse of
discretion. [Citations.] If the trial court resolved disputed factual
issues, the reviewing court should not substitute its judgment for
the trial court’s express or implied findings supported by
substantial evidence. [Citations.] When substantial evidence
supports the trial court’s factual findings, the appellate court
reviews the conclusions based on those findings for abuse of
discretion. [Citation.] However, the trial court’s discretion is
limited by the applicable legal principles. [Citation.] Thus, where
there are no material disputed factual issues, the appellate court
reviews the trial court’s determination as a question of law.
[Citation.] In any event, a disqualification motion involves
concerns that justify careful review of the trial court’s exercise of
discretion.” (People ex rel. Dept. of Corporations v. SpeeDee Oil
Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143–1144.) The
failure of the trial court to follow the law constitutes an abuse of
discretion as a legal matter. (Katiuzhinsky v. Perry (2007) 152
Cal.App.4th 1288, 1294.)
2.2. Rule 4.2
“ ‘Contact with represented parties is proscribed to
preserve the attorney-client relationship from an opposing
attorney’s intrusion and interference.’ [Citation.]” (Snider, supra,
113 Cal.App.4th at p. 1197.) Rule 4.2 provides in relevant part:
“(a) In representing a client, a lawyer shall not communicate
directly or indirectly about the subject of the representation with
a person* the lawyer knows* to be represented by another lawyer
in the matter, unless the lawyer has the consent of the other
lawyer. [¶] (b) In the case of a represented corporation,
partnership, association, or other private or governmental
17
organization, this rule prohibits communications with: [¶] . . . [¶]
(2) A current employee, member, agent, or other constituent of
the organization, if the subject of the communication is any act or
omission of such person* in connection with the matter which
may be binding upon or imputed to the organization for purposes
of civil or criminal liability.” The asterisks (*) identify words
defined in Rule 1.0.1(g-1). Rule 1.0.1(g-1) states: “ ‘[p]erson’ has
the meaning stated in Evidence Code section 175.” In turn,
Evidence Code section 175 provides that “ ‘[p]erson’ includes a
natural person, firm, association, organization, partnership,
business trust, corporation, limited liability company, or public
entity.” Rule 1.0.1(f) further provides: “ ‘Knowingly,’ ‘known,’ or
‘knows’ means actual knowledge of the fact in question. A
person’s* knowledge may be inferred from circumstances.”
It is undisputed that Rothstein had ex parte contacts with
A-Plus employees on at least two occasions, in October and
December 2020. However, these facts, in and of themselves, do
not constitute a violation of Rule 4.2.
On the record before us, whether the court abused its
discretion in concluding that Rothstein violated Rule 4.2 raises a
number of difficult questions. Rothstein argues that the court
erred in finding a violation of Rule 4.2 because it did not make a
definitive finding that A-Plus was defendants’ agent. Defendants
concede on appeal that the court did not resolve this issue, but
argue that this is irrelevant because “Rule 4.2 does not require a
conclusive finding that a third party’s acts are ‘binding upon or
imputed to’ the represented party—only that they ‘may be.’ ”
(Italics omitted.) While it is not necessary to demonstrate that
the agent’s act or omission that was the subject of the
communication is in fact binding on the organization, a plain
18
reading of Rule 4.2(b) does not permit the conclusion that “may
be” extends to whether the person with whom the attorney had
contact is a current employee, member, agent, or other
constituent of the organization. Courts are bound to construe the
rule narrowly. (See Snider, supra, 113 Cal.App.4th at p. 1198 [“ ‘a
rule whose violation could result in disqualification and possible
disciplinary action should be narrowly construed when it
impinges upon a lawyer’s duty of zealous representation’ ”].)
The court correctly observed that Rothstein had taken the
litigation position—including at the point of the contact with A-
Plus employees—that ASCs were agents of Samsung. Rothstein’s
communications with an entity he argued was the agent of
defendants, which he knew to be represented, raises the
appearance of impropriety and the court was understandably
dubious of his conduct, as are we. Rothstein should have sought
guidance concerning the propriety of his intended actions and, if
necessary, sought defendants’ consent to contact A-Plus. (See San
Francisco Unified School Dist. ex rel. Contreras v. First Student,
Inc. (2013) 213 Cal.App.4th 1212, 1232, fn. 13 [“California courts
have held that attorneys should resolve doubts about whether
communications violate the rule by avoiding suspect
communications and seeking court guidance. [Citations.] The
need to seek such guidance particularly arises where . . . ‘bright
line’ rules . . . [citation], are lacking.”]; see also Snider, supra, 113
Cal.App.4th at p. 1215 [“where an attorney has reason to believe
that an employee of a represented organization might be covered
by rule 2-100 [predecessor to Rule 4.2], that attorney would be
well advised to either conduct discovery or communicate with
opposing counsel concerning the employee’s status before
contacting the employee”].)
19
Nevertheless, it was not undisputed that A-Plus was
defendants’ agent. In their motion to revoke Rothstein’s pro hac
vice admission, defendants stated that “Samsung denies A-Plus’s
agency.” Thus, defendants have simultaneously argued that
Rothstein has violated Rule 4.2 and that A-Plus was not
defendants’ agent, in which case Rothstein’s conduct—although
ostensibly improper—could not be a true violation of Rule 4.2.8 It
is also unclear how it could be established that Rothstein had
actual knowledge that A-Plus was represented based on an
agency relationship with a represented organization, where it
remained undecided whether the agency relationship existed and
defendants denied the relationship.
Absent factual determinations that A-Plus was defendants’
agent or that Rothstein had actual knowledge that A-Plus was
represented, the court’s conclusion that Rothstein violated Rule
4.2 seems to be based solely on the appearance of misconduct.
And while the named plaintiffs in this case apparently wish to be
dismissed, we are troubled by the possibility that, under a similar
scenario, the court or a finder of fact could subsequently
determine that the person contacted was not an agent of the
8 The court appeared to find that inconsistency in defendants’ position
was based on “a legitimate concern that its reading of the statute may
be incorrect” with respect to whether defendants could be liable for the
acts of its ASCs. However, whether the acts or omissions of ASCs could
be binding on defendants goes to the second prong of Rule 4.2(b)(2), not
whether an agency relationship existed. “ ‘The existence of an agency
relationship is usually a question of fact, unless the evidence is
susceptible of but a single inference.’ [Citation.] Because the existence
of agency is generally a question of fact, it logically follows that agency
must be established with evidence.” (Zimmerman v. Superior Court
(2013) 220 Cal.App.4th 389, 401.)
20
organization, in which case the disqualified attorney’s clients will
have been denied the “important right to counsel of one’s
choosing” for a violation that, in retrospect, did not take place.
(Complex Asbestos, supra, 232 Cal.App.3d at p. 586.) Further, if
courts dispense with the requirement that the moving party
make a factual showing of a violation, we are concerned that the
use of disqualification motions for tactical advantage will only
increase. (See Gregori v. Bank of America (1989) 207 Cal.App.3d
291, 301 (Gregori) [“it is widely understood by judges that
‘attorneys now commonly use disqualification motions for purely
strategic purposes’ ”].)
Although we wish to acknowledge these concerns, we need
not resolve them for purposes of this appeal. We assume, without
deciding, that the court did not abuse its discretion in finding a
violation of Rule 4.2 and proceed to consider whether the court’s
disqualification of Rothstein was an abuse of discretion. We
conclude that it was.
2.3. The court abused its discretion in granting the
motion to revoke Rothstein’s pro hac vice
admission.
“We do not disqualify a lawyer from representing a client to
punish the lawyer’s mistakes or even bad behavior. [Citations.]
The discipline of lawyers in California is a function reserved to
the State Bar. [Citations.] Rather, disqualification of counsel is a
prophylactic remedy designed to mitigate the unfair advantage a
party might otherwise obtain if the lawyer were allowed to
continue representing the client. [Citation.]” (City of San Diego v.
Superior Court (2018) 30 Cal.App.5th 457, 470–471.)
“ ‘Disqualification motions implicate several important
interests, among them are the clients’ right to counsel of their
21
choice, the attorney’s interest in representing a client, the
financial burden of replacing a disqualified attorney, and tactical
abuse that may underlie the motion. [Citation.] The “paramount”
concern in determining whether counsel should be disqualified is
“the preservation of public trust in the scrupulous administration
of justice and the integrity of the bar.” [Citations.] It must be
remembered, however, that disqualification is a drastic course of
action that should not be taken simply out of hypersensitivity to
ethical nuances or the appearance of impropriety.’ [Citation.]”
(Sheller, supra, 158 Cal.App.4th at p. 1711.)
Where there has been a violation of Rule 4.2, a trial judge
may disqualify the attorney from acting as counsel in an action
related to the subject of controversy, where the misconduct will
have a substantial continuing effect on the proceedings before the
court. (Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d
597, 607.) The court in Chronometrics observed: “We detect a
common theme in the cases relating to disqualification of
attorneys by trial courts. If the status or misconduct which is
urged as a ground for disqualification will have a continuing
effect on the judicial proceedings which are before the court, it is
justified in refusing to permit the lawyer to participate in such
proceeding. . . . If, on the other hand, the court’s purpose is to
punish a transgression which has no substantial continuing effect
on the judicial proceedings to occur in the future, neither the
court’s inherent power to control its proceedings nor Code of Civil
Procedure section 128 can be stretched to support the
disqualification.” (Ibid., italics added.)
Similarly, the court in Gregori stated: “Since the purpose of
a disqualification order must be prophylactic, not punitive, the
significant question is whether there exists a genuine likelihood
22
that the status or misconduct of the attorney in question will
affect the outcome of the proceedings before the court. Thus,
disqualification is proper where, as a result of a prior
representation or through improper means, there is a reasonable
probability counsel has obtained information the court believes
would likely be used advantageously against an adverse party
during the course of the litigation.” (Gregori, supra, 207
Cal.App.3d at pp. 308–309; accord, Big Lots Stores, Inc. v.
Superior Court (2020) 57 Cal.App.5th 773, 782 [“disqualification
is a ‘drastic remedy’ that should only be ordered where attorney
misconduct has a ‘ “substantial continuing effect on future
judicial proceedings” ’ ”].)
Even assuming that Rothstein violated Rule 4.2, we
conclude that the court abused its discretion in holding that the
Complex Asbestos rebuttable presumption of disqualification
applied in this case and erred in disqualifying Rothstein in the
absence of substantial evidence supporting that his misconduct
would have a substantial continuing effect on the proceedings.
2.3.1. The court’s application of the Complex Asbestos
rebuttable presumption was an abuse of
discretion.
In Complex Asbestos, a paralegal worked for Brobeck,
Phleger & Harrison (Brobeck), a law firm that represented
defendants in asbestos litigation cases. (Complex Asbestos, supra,
232 Cal.App.3d at p. 580.) The plaintiffs in some of those cases
were represented by the Harrison firm. (Id. at pp. 582–583.)
While working for Brobeck, the paralegal acquired “confidential
attorney-client information, materially related to the cases”
involving the Harrison firm’s clients, then left Brobeck to work,
eventually, for the Harrison firm. (Id. at pp. 597–598.)
23
Specifically, the paralegal looked at “Settlement Evaluation and
Authority Request” forms concerning the Harrison firm’s cases,
which were “brief summaries of the information and issues used
by the defense attorneys and their clients to evaluate each
plaintiff’s case.” (Id. at pp. 580, 597.) Certain defendants in the
asbestos litigation filed a motion to disqualify the Harrison firm,
which the court granted. (Id. at pp. 583–585.)
In affirming the order, the Court of Appeal established a
methodology “for disqualification based on nonlawyer employee
conflicts of interest.” (Complex Asbestos, supra, 232 Cal.App.3d at
p. 596.) “The party seeking disqualification must show that its
present or past attorney’s former employee possesses confidential
attorney-client information materially related to the proceedings
before the court. The party should not be required to disclose the
actual information contended to be confidential. However, the
court should be provided with the nature of the information and
its material relationship to the proceeding. [Citation.] [¶] Once
this showing has been made, a rebuttable presumption arises
that the information has been used or disclosed in the current
employment. The presumption is a rule by necessity because the
party seeking disqualification will be at a loss to prove what is
known by the adversary’s attorneys and legal staff. [Citation.] To
rebut the presumption, the challenged attorney has the burden of
showing . . . that the employee has not had and will not have any
involvement with the litigation, or any communication with
attorneys or co[-]employees concerning the litigation, that would
support a reasonable inference that the information has been
used or disclosed. If the challenged attorney fails to make this
showing, then the court may disqualify the attorney and law
firm.” (Ibid., fn. omitted.)
24
Unlike Complex Asbestos, this is not a case in which a non-
attorney employee of a law firm, who had access to (and admitted
to accessing) confidential information concerning that firm’s
analyses of an opposing firm’s clients and cases, later gained
employment with the opposing law firm. Assuming that the
presumption can apply outside the circumstances of a non-
attorney employee with access to confidential information moving
from one firm to another (a scenario that bears no resemblance to
the circumstances of this case), there is no evidence indicating
that A-Plus ever had access to any confidential attorney-client
information from defendants or that any of the communications
between Rothstein and A-Plus concerned information subject to
the attorney-client privilege. Thus, there does not appear to be
any legal basis to apply the presumption from Complex Asbestos
in this case.9
Snider, supra, 113 Cal.App.4th 1187 is also instructive. In
Snider, the trial court disqualified the attorney of the defendant
in the action, Dale Larabee, following Larabee’s contacts with two
employees of Quantum Productions, Inc. (Quantum), the
9 For the same reasons, Shadow Traffic Network v. Superior Court
(1994) 24 Cal.App.4th 1067, which the court also cited, does not
support the application of the presumption to this case. Shadow Traffic
involved a motion to disqualify defendant’s counsel based on its
contacts with an expert who previously met with plaintiff’s counsel to
discuss retention, obtained information about plaintiff’s potential
damages theories, and offered feedback on plaintiff’s strategies. (Id. at
pp. 1071–1073.) The Court of Appeal concluded that there was
“substantial evidence to support the trial court’s finding that in that
one meeting, [plaintiff’s counsel] disclosed confidential information to
[the expert]” and thus the rebuttable presumption applied. (Id. at
p. 1085.)
25
defendant’s former employer. (Id. at p. 1192.) The Court of
Appeal granted the defendant’s petition for writ of mandate and
vacated the court’s order. (Id. at pp. 1197, 1216.) It concluded
that there was no evidence presented that the employees Larabee
contacted “had authority from Quantum to speak concerning this
dispute or any other matter, or that their actions could bind or be
imputed to Quantum concerning the subject matter of this
litigation.” (Id. at p. 1211.) The court further found that “there
was no evidence presented that Larabee actually violated the
attorney-client privilege” where “[t]here was no evidence
presented that Quantum’s counsel had any communications with
[the employees] prior to Larabee’s contacts and attempted
contacts with them.” (Ibid.) Although one of the employees stated
in a declaration that the attorney “asked her ‘many more
questions I cannot remember right now,’ ” the court rejected the
argument that this was sufficient to establish that “there might
have been confidential information disclosed.” (Id. at p. 1212.)
“[T]his is mere speculation that cannot support a finding of a
violation of rule 2-100, or disqualification of counsel.” (Ibid.)
Accordingly, it is not appropriate to assume that
confidential information was disclosed simply because the A-Plus
employees contacted cannot remember the full details of their
communications with Rothstein. (Accord, Complex Asbestos,
supra, 232 Cal.App.3d at p. 596, fn. 13 [“[S]howing merely
potential access to confidences without actual exposure is
insufficient. The threat to confidentiality must be real, not
hypothetical.”].) Here, as in Snider, there was no evidence
presented that counsel for defendants ever spoke with A-Plus or
its employees prior to Rothstein’s contacts with them.
26
Considering that defendants deny the existence of an agency
relationship, such contact seems unlikely.
The trial court’s “discretion is ‘ “subject to the limitations of
the legal principles governing the subject of its action, and
subject to reversal on appeal where no reasonable basis for the
action is shown. [Citation.]” [Citation.]’ ” (Snider, supra, 113
Cal.App.4th at p. 1197.) Further, “ ‘[i]t is axiomatic that cases are
not authority for propositions not considered.’ [Citation.]” (People
v. Avila (2006) 38 Cal.4th 491, 566.) The court stated that
Complex Asbestos stands for the proposition that “[c]ourts employ
a rebuttable presumption of disqualification when the challenged
party alone holds the information wrongfully obtained”10 and that
“ ‘[t]he presumption is a rule by necessity because the party
seeking disqualification will be at a loss to prove what is known
by the adversary’s attorneys and legal staff.’ ” As established
above, the holding of Complex Asbestos does not sweep so broadly.
We see no basis to significantly expand the application of the
rebuttable presumption when “the thrust of [Complex Asbestos] is
to implement the important public policy of protecting against
the disclosure of confidential information and the potential
exploitation of such information by an adversary.” (Shadow
Traffic Network v. Superior Court, supra, 24 Cal.App.4th at
p. 1085.) While there was a hypothetical risk of disclosure of
confidential information in this case, there was no showing that
A-Plus was ever actually exposed to attorney-client confidential
10 We note that, although they did not remember many details of their
conversations with Rothstein, the A-Plus employees did recall and
were able to provide information about the subject matter of the
discussions.
27
information, nor did the court ever make such a finding. Thus,
the court’s reliance on the rebuttable presumption was not
supported by the relevant law and was an abuse of discretion.
Our conclusion is bolstered by the fact that courts have
declined to apply the rebuttable presumption where the party
moving for disqualification continued to have access to the person
or entity that potentially disclosed confidential information. In
Collins v. State of California (2004) 121 Cal.App.4th 1112, 1117–
1118, counsel for defendant discussed the details of the case with
an expert, who agreed to act as a consultant. The following year,
the expert agreed to be an expert witness for the plaintiffs in the
same case, having apparently forgotten about his consultancy
with defendant. (Id. at pp. 1118–1119.) Although plaintiffs’
counsel stated that the expert had never disclosed his
consultancy, the trial court granted a motion disqualifying the
expert and plaintiff’s attorney. (Id. at pp. 1120–1121.) The Court
of Appeal concluded that, even though substantial evidence
supported the trial court’s conclusion that confidential attorney-
work-product information was exchanged with the expert (id. at
p. 1128), the rebuttable presumption did not apply because “[a]t
all times, the expert witness . . . remained a consultant for
[defendant’s] counsel” and thus “[t]he most important source of
the information from which to ascertain whether [the expert] had
passed on any confidential information . . . thus remained in
[defendant’s] hands.” (Id. at p. 1129.) It observed that “[w]hen the
expert has gone to the other side and is no longer available to the
side that originally retained him, the shifting of the burden of
proof makes eminent sense,” but where the expert was still
available to the party that originally retained him, “the normal
burdens of proof, wherein the party moving for relief must
28
establish its right to it, is appropriate.” (Ibid.; accord,
Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 413
[rejecting application of rebuttable presumption where there was
no evidence that defendant’s confidential medical consultant, who
later spoke with plaintiff’s attorney, “was legally unavailable to
[defendant] as a source for evidence of what confidential
information” had been disclosed].)
Thus, even if we assumed A-Plus had access to confidential
attorney-client information, there is no evidence in the record to
support that A-Plus or its employees had “gone to the other side”
or were legally unavailable to defendants. Rather, the
declarations from A-Plus employees state that A-Plus remains an
authorized service center and thus is affiliated with Samsung in
some manner. Its employees also provided defendants’ attorneys
with declarations concerning the subject of their discussions with
Rothstein. This further supports that the rebuttable presumption
did not apply in this case as a matter of law. (See Shandralina G.
v. Homonchuk, supra, 147 Cal.App.4th at p. 414 [“Because the
impossibilities underlying . . . [the] rebuttable presumptions
(applicable when former employees have joined the legal staff of
the challenged attorney) are absent [citation], the reasons for the
presumption are not present.”].)
2.3.2. Substantial evidence does not support that
there is reasonable likelihood of a substantial
continuing effect on the proceedings.
In the absence of an applicable presumption, the court was
required to conclude, based on the evidence, that there was a
“reasonable probability” that Rothstein “wrongfully acquired an
unfair advantage that undermines the integrity of the judicial
process and will have a continuing effect on the proceedings
29
before the court” before revoking his pro hac vice admission.
(Gregori, supra, 207 Cal.App.3d at pp. 300, 308–309.) The burden
of making this showing was on defendants as the parties seeking
disqualification. (Collins v. State of California, supra, 121
Cal.App.4th at p. 1129.) “ ‘Even under [the abuse of discretion]
standard, there is still a substantial evidence component. We
defer to the trial court’s factual findings so long as they are
supported by substantial evidence, and determine whether,
under those facts, the court abused its discretion.’ [Citation.]”
(McDermott Will & Emery LLP v. Superior Court (2017) 10
Cal.App.5th 1083, 1121 (McDermott).)
We do not agree with defendants that the court’s
observations that Rothstein sought information to support his
allegations and that such information could hypothetically be
used against defendants in this litigation or future litigation
involving other plaintiffs constituted a finding that there was
substantial evidence that Rothstein improperly obtained
information that was reasonably likely to have a continuing
impact on the proceedings. Because the order establishes that the
court erroneously relied on the rebuttable presumption in
revoking Rothstein’s pro hac vice status, we will not imply that it
made the required finding of a substantial continuing effect in
the alternative. “A discretionary order based on the application of
improper criteria or incorrect legal assumptions is not an exercise
of informed discretion and is subject to reversal even though
there may be substantial evidence to support that order.
[Citations.]” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 26; accord,
Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39
Cal.App.4th 1379, 1384 [“When the record clearly demonstrates
30
what the trial court did, we will not presume it did something
different.”].)
Regardless, on the record before us, we do not find
substantial evidence to support the conclusion that Rothstein
obtained an unfair litigation advantage that was reasonably
likely to have a substantial ongoing effect on the litigation, such
that the drastic remedy of disqualification was appropriate.
Rothstein represented that his communications were
“confirmatory” in nature and “did not provide any information
other than general information about the availability of parts as
reported on Samsung’s database.” The declarations of A-Plus’s
employees support that he asked about the availability of parts
on the Samsung database. Defendants do not contend that this
was confidential or privileged information of the kind the rule is
intended to protect. (See La Jolla Cove Motel & Hotel
Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773,
777 [court correctly denied disqualification motion where there
was “no evidence that [offending lawyers] obtained any
confidential information that could give their clients an unfair
advantage or impact upon the fairness of the trial or integrity of
the judicial system”]; see also Snider, supra, 113 Cal.App.4th at
p. 1197.) Although defendants and the court placed great weight
on the fact that the A-Plus employees could not recall the full
details of what they disclosed to Rothstein, we are not permitted
to assume that the disclosures were significant or confidential in
nature or would have a substantial continuing effect on the
litigation absent evidence to that effect. As discussed above,
“mere speculation . . . cannot support . . . disqualification of
counsel.” (Snider, at p. 1212; see also Castro v. Los Angeles
County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1442
31
[“Speculative contentions of conflict of interest cannot justify
disqualification of counsel.”].)
Defendants argued that “any information Mr. Rothstein
gained from these queries cannot be unlearned and pose an
ongoing threat to Samsung’s position in this litigation,” but failed
to articulate with any specificity or reference to evidence what
substantial continuing effect Rothstein’s understanding of the
availability or unavailability of replacement parts may have on
future proceedings, or how this would provide Rothstein with an
unfair advantage. To the extent any information Rothstein
obtained from A-Plus about the availability of parts was
inaccurate, there is no basis to believe A-Plus’s statements would
be binding on defendants in future proceedings. The court
previously remarked that section 1793.03, subdivision (b), “does
not make manufacturers liable for inaccuracies if an ASC advises
a customer that a needed part is not available when such parts
are available.”
McDermott, supra, 10 Cal.App.5th 1083, on which the court
relied, does not compel a different conclusion. In McDermott, the
trial court disqualified defendants’ counsel, Gibson, Dunn &
Crutcher LLP (Gibson Dunn), because it failed to recognize the
potentially privileged nature of an e-mail and used the e-mail
over an objection that it was inadvertently disclosed. The Court
of Appeal first concluded that substantial evidence supported the
trial court’s ruling that there was no waiver of privilege. (Id. at
pp. 1102–1106.) With respect to disqualification, the court
observed: “ ‘ “ ‘[I]n an appropriate case, disqualification might be
justified if an attorney inadvertently receives confidential
materials and fails to conduct himself or herself in [accordance
32
with his or her State Fund[11] duties], assuming other factors
compel disqualification.’ ” ’ [Citations.]” (Id. at p. 1120.) It
concluded that the trial court did not abuse its discretion in
disqualifying Gibson Dunn where it produced the inadvertently
disclosed email in response to a subpoena, refused to return the
email and denied that it was privileged, “further reviewed and
analyzed the e-mail to determine its relevance to the claims and
defenses in” other actions, “formulated deposition questions
based on the e-mail’s content,” “deposed [two individuals] about
the e-mail while reading portions of it into the record,” “identified
and quoted the e-mail in its interrogatory responses that
described evidence supporting Defendants’ defenses, produced
the e-mail in discovery, and lodged a copy with the trial court in
opposition to the privilege motion.” (Id. at p. 1122.) The court in
McDermott concluded “this evidence shows Gibson Dunn thought
it could use the e-mail to Defendants’ advantage in opposing [the
plaintiff’s] claims” and “constitutes substantial evidence
supporting the trial court’s finding disqualification was necessary
to prevent future prejudice or harm.” (Ibid.) The court further
observed that “[Clark v. Superior Court (2011) 196 Cal.App.4th
37] established that an attorney who knowingly uses
inadvertently disclosed, privileged materials to depose witnesses
may affect the outcome of the lawsuit and therefore justifies a
trial court’s exercise of its discretion to disqualify the attorney.”
(Ibid.) Thus, the McDermott court’s conclusion that
11 State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644.
“State Fund is the seminal California decision defining a lawyer’s
ethical obligations upon receiving another party’s attorney-client
privileged materials.” (McDermott, supra, 10 Cal.App.5th at p. 1106.)
33
disqualification was appropriate relied in large part on the fact
that the email obtained by Gibson Dunn contained inadvertently
disclosed, privileged information. No such showing was made in
this case.
Although the court acknowledged that the purpose of
disqualification motions is not to punish counsel, it also held that
disqualification was appropriate, in part, because “it is apparent
that Rothstein sought information to be used in this case to
support the allegations of the SAC.” However, “it is one thing to
say [Rothstein’s] conduct was unprofessional and showed bad
judgment and quite another to say . . . that it warrants his
disqualification.” (Gregori, supra, 207 Cal.App.3d at p. 309;
accord, Oaks Management Corporation v. Superior Court (2006)
145 Cal.App.4th 453, 471 [appearance of impropriety is not a
sufficient ground to disqualify an attorney in California].) We
conclude that the standard for disqualification has not been met.
34
DISPOSITION
The order granting defendants’ motion to revoke
Rothstein’s pro hac vice admission is reversed. Rothstein shall
recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting. P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.
35