Trust of Preovolos CA4/1

Filed 2/24/22 Trust of Preovolos CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
Trust of PETER E. PREOVOLOS &
LITSA S. PREOVOLOS.
D078711
PETER E. PREOVOLOS,
Plaintiff and Respondent,
(Super. Ct. No.
v. 37-2020-00035119-PR-TR-CTL)
ATHANASIOS K. PREOVOLOS,
Objector and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Julie C. Kelety, Judge. Motion to dismiss denied; order affirmed.
Preovolos Lewin and James Michael Hester for Objector and Appellant.
Horvitz & Levy, Jeremy Brooks Rose and Eric Samuel Boorstin;
Withers Bergman, Jeremiah James Moffit and Ann Margaret Wicks for
Plaintiff and Respondent.
Objector and appellant Athansios (Thanasi) K. Preovolos, an attorney,
appeals from an order disqualifying his law firm Preovolos Lewin ALC
(Preovolos Lewin) from representing Thanasi in connection with a probate
petition filed by Thanasi’s father, plaintiff and respondent Peter E.
Preovolos.1 Peter’s petition sought, among other things, to invalidate an
irrevocable trust and postmarital agreement drafted by Thanasi and
Preovolos Lewin that Peter and his former wife Litsa had entered into as a
consequence of Peter’s infidelity. In its disqualification order, the probate
court ruled it was undisputed that Thanasi and Preovolos Lewin had
represented Peter for many years in various matters and continued to legally
represent Peter’s businesses; Thanasi drafted documents that prompted
creation of the documents Peter sought to invalidate in probate court; and
Thanasi was a trust beneficiary and “trust protector” to the irrevocable trust
and to a family trust, which Thanasi had amended, giving him a personal
stake in the petition’s outcome. It ruled Peter was a former client of
Preovolos Lewin, and that a dispute existed over whether Peter had validly
consented to the representation and waived the attorney-client privilege.
Thanasi’s basic contention on appeal is that he has a fundamental right
to represent himself, and neither California Rules of Professional Conduct
nor the attorney-client privilege, which Thanasi argues Peter has waived,
prevents his self-representation. Thanasi further contends all of the probate
petition’s claims flow from the postmarital agreement, and thus the family
court, not the probate court, has priority and “exclusive and continuing
jurisdiction” over the dispute. Peter has moved to dismiss this appeal, and
the related appeal in Peter’s malpractice action, as frivolous or taken solely
for delay. He argues Thanasi has no reasonable argument that Preovolos
1 We refer to the parties by their first names for clarity, not out of
disrespect. Thanasi separately appeals from a temporary restraining order
entered in a malpractice action filed by Peter prohibiting Thanasi and
Preovolos Lewin from providing legal assistance, advice or representation to
“anyone adverse to Peter . . . in and out of court.”
2
Lewin should be permitted to oppose him in a matter arising out of legal
work that Preovolos Lewin performed for him.
We deny Peter’s motion to dismiss the appeal because our consideration
of the motion entails review of the record and an examination of Thanasi’s
arguments. Having considered Thanasi’s points, we hold the appeal is
without merit and affirm the probate court’s disqualification order. Thanasi
has not established the underlying factual basis for the order lacked
substantial evidence or that the order was outside the court’s broad
discretion to “ ‘preserve public trust in the scrupulous administration of
justice and the integrity of the bar.’ ” (City and County of San Francisco v.
Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846; Walker v. Apple, Inc. (2016)
4 Cal.App.5th 1098, 1106.)
FACTUAL AND PROCEDURAL BACKGROUND2
Thanasi is an attorney, senior partner, and 100 percent owner of a law
firm currently known as Preovolos Lewin, ALC (formerly Preovolos Lewin &
Hezlep, a Law Corporation). Preovolos Lewin is a corporation with other
attorney employees and one other attorney officer, Olin Lewin. For decades,
Thanasi and Preovolos Lewin or its predecessor firms have provided personal
legal and tax advice to Peter and Litsa, and have been legal counsel to
several successful businesses founded by Peter, including Alpha & Omega
Financial Management Consultants, Inc. (Alpha & Omega) and PenChecks,
Inc. (PenChecks). Thanasi and Preovolos Lewin have prepared personal
estate planning documents for Peter and Litsa, as well as Peter’s personal
income taxes. They assisted Peter and Litsa with real property transactions.
2 The background facts are taken in part from declarations in support of
and in opposition to Peter’s motion to disqualify counsel and Peter’s verified
probate petition, which is also an exhibit to Peter’s motion to dismiss the
appeal.
3
Peter does not recall being informed of or waiving conflicts of interest arising
out of Preovolos Lewin’s joint representation of him and Litsa.
After Peter engaged in an extramarital affair and Litsa threatened
divorce, Thanasi drafted an irrevocable trust and postmarital agreement, the
latter intended to act as an “economic sanction” on Peter for his misconduct.
Thanasi was appointed “trust protector” of the irrevocable trust, into which
all of Peter and Litsa’s assets were placed. Thanasi’s brothers Spiro and
Nicholas were named trustees of the trust. Thanasi also drafted a
restatement of the Preovolos family trust dated December 23, 1991, naming
himself a trust protector of the family trust and adding language that
appeared to limit Peter’s right to revoke that trust. Thanasi had Peter sign a
durable power of attorney for finances naming Thanasi and Thanasi’s brother
Spiro as agents.
In connection with the drafting of these documents, Peter and Litsa in
July 2014 entered into a retainer agreement with Preovolos Lewin to provide
them legal services in (1) mediating their marital issues; (2) preparing the
postmarital agreement; and (3) potentially filing an uncontested dissolution
action. In a separate exhibit that Peter and Litsa initialed and signed, they
consented to the joint representation by Thanasi and acknowledged the
purpose of the retainer was to disclose “the potential conflict so that [they]
. . . can waive any potential conflict, and to comply with the ethical rule of the
California State Bar.”3 Though Peter had asked whether he should retain
outside independent counsel to advise him, Litsa and Thanasi discouraged
3 The retainer states: “In determining whether you should consent to
this joint representation . . . you should carefully consider [¶] . . . [¶] . . .
although at this time there does not appear to be any difference of opinion
between you with regard to the legal and/or tax issues of which [Preovolos
Lewin] expects to provide services, it may turn out, upon further consultation
or changes in circumstances that a conflict has arisen.”
4
him from doing so. According to Peter, Thanasi asked, “Do you think we’d lie
to you?”
In early 2020, Peter began exploring selling PenChecks, for which
Thanasi served as legal counsel. When Thanasi found out, he told another
PenChecks board member that Peter would be removed from the company if
he continued to explore the potential sale. Thereafter, the board member
called for a surprise vote seeking to force Peter to retire from the company.
Peter was forced to retire from PenChecks in June 2020. He negotiated a
retirement package with a PenChecks board subcommittee, but when the
matter was put to a vote by the board, Litsa, Spiro and Thanasi refused to
recuse themselves. The board voted against the retirement package.
In July 2020, Litsa petitioned for dissolution of her and Peter’s
marriage.
In September 2020, Peter, individually and as cotrustee of the
Preovolos family trust, filed a petition in probate court to set aside the
postmarital agreement and irrevocable trust and obtain damages, including
for breach of fiduciary duty and financial elder abuse. Several months later,
Peter sued Thanasi and Preovolos Lewin for legal malpractice, breach of
fiduciary duty and other relief.
At some point after Peter filed his probate petition and the malpractice
action, the PenChecks board offered to give him his negotiated retirement
package in exchange for dismissal of those actions.
In January 2021, Peter moved to disqualify Thanasi and Preovolos
Lewin from acting as counsel to Thanasi, Spiro and Nicholas in the probate
case. He argued the representation violated numerous California State Bar
Rules of Professional Conduct,4 including those relating to client
4 Rule references are to the State Bar Rules of Professional Conduct.
5
communications and confidential information (rules 1.4, 1.6); addressing
conflicts of interest involving current and former clients (rules 1.7, 1.9); and
prohibiting lawyers from entering into business transactions or acquiring
interests adverse to a client (rule 1.8.1). Peter cited rules imputing the
prohibitions and conflicts to the law firm, Preovolos Lewin (rules 1.8.11,
1.10). Peter argued Thanasi and Preovolos Lewin had unwaivable conflicts of
interest and he was never properly advised of the conflicts presented by
Thanasi’s joint representation of him and Litsa, or by Thanasi’s self-interest
as a beneficiary to the trust Thanasi drafted and for which he designated
himself trust protector, “thereby giving him complete control over assets that
would ultimately be passed to him as an inheritance if they were not
consumed prior to Peter’s demise.” Peter argued he did not waive any conflict
or the attorney-client privilege with respect to any communications with
counsel during the past 15 years. He argued counsel did not obtain properly
informed written consent to the conflicts when they drafted the irrevocable
trust and postmarital agreement; that the 2014 retainer agreement did not
meet that standard as it cited a nonexistent rule, failed to explain the conflict
and potential harm in easily understood language, and purported to waive an
unwaivable conflict.
Peter also argued the attorney-client privilege mandated
disqualification given Thanasi and Preovolos Lewin’s years of legal work for
Peter in marital, property, business and estate planning matters: “By taking
positions adverse to Peter in this action and in favor of Respondents, there is
a substantial risk that Counsel will utilize information gained under the
protection of the attorney-client privilege to harm Peter’s interests and
advance Thanasi’s and Respondents[’] interests.” Finally, Peter argued
Thanasi and Preovolos Lewin should be disqualified as witnesses in the
6
litigation, pointing to Thanasi’s drafting of the irrevocable trust at issue in
the petition, the restatement of the family trust, and other related
documents. Peter asserted he would call Thanasi and other Preovolos Lewin
attorneys who oversaw the business as witnesses in the matter, as Thanasi
was privy to confidential information and key facts relating to his and his
wife’s estate planning and assets, as well as Peter’s intentions relating to the
latest trust restatement. Peter argued Thanasi was in a unique position to
exploit that information. According to Peter, their likely status as witnesses
likewise prohibited Thanasi and Preovolos Lewin from acting as advocates in
the litigation.
In opposition, Thanasi did not challenge Peter’s assertions about his
intimate knowledge of Peter and Litsa’s personal financial matters and the
businesses. He admitted he “has represented his mother and [Peter] in their
joint estate plan, has performed legal services for all of the family’s
businesses for over 25 years, and is intimately aware of the substantive
issues raised in both this Petition and in [Peter’s] malpractice claim.”
Claiming that for purposes of the motion he and his law firm Preovolos Lewin
were “the attorney,” Thanasi argued he was not representing a client, but
himself, which he had a fundamental right to do. Thanasi maintained he
“has not been hired by a client that is adversarial against [Peter]. [Peter] has
sued Defendant, not only in this action but in a related action for legal
malpractice. . . . and has made outrageous, misleading, and false allegations
in both.” Thanasi argued the Rules of Professional Conduct were intended to
establish disciplinary standards, and were not “designed to be a basis for civil
liability or prohibiting a defendant from defending himself.” According to
Thanasi, even if he violated or breached a rule, the probate court was not the
proper forum to make that determination. Thanasi maintained the
7
circumstances did not involve “two masters” or an attorney stuck between
two clients with adverse interests as in Peter’s cited cases. Thanasi argued
that given his intimate knowledge, new counsel would not make any
difference.
Thanasi further argued the attorney-client privilege did not prohibit
him from representing himself as the privilege ceases when a client alleges
his attorney breached his duties, which Peter did in both the probate and
malpractice cases. He argued Peter waived the attorney-client privilege
when he signed the 2014 retainer agreement, and also by setting forth
“hundreds of factual statements” involving Litsa, Thanasi and other sons in
the probate and malpractice cases and by making “key documents” exhibits.
Following arguments on the matter, the probate court granted the
motion as to Thanasi and denied it without prejudice as to Spiro and
Nicholas.5 The court found it was undisputed that Thanasi and Preovolos
Lewin had represented Peter for many years in various matters, that
Thanasi continued to represent Peter’s business, and that Thanasi drafted
the trust at issue in the petition as well as several documents prompting the
creation of the trust and postmarital agreement that Peter sought to
invalidate. It observed Thanasi was a trust beneficiary and the trust
protector to both the irrevocable trust and the family trust, which he was
alleged to have amended. The court found Peter was a former client of
Thanasi and Preovolos Lewin, particularly with respect to the postmarital
agreement, and that an actual conflict existed. It found a dispute existed as
to whether Peter waived the attorney-client privilege and consented to the
5 The probate court’s order granting the disqualification motion indicates
that Spiro substituted in a new attorney and Nicholas afterwards resigned as
trustee and was dismissed from the case. The portion of the order denying
the motion as to Spiro and Nicholas is not at issue in this appeal.
8
joint representation: “There is no evidence of written consent, as required
under the [R]ules of [P]rofessional [C]onduct, and the waiver by [Peter] does
not appear to have been informed and could possibly be the product of
duress.” The court specifically addressed Thanasi’s ability to represent
himself: “Contrary to [Thanasi’s] assertions, Thanasi is not representing
himself in pro per, and the motion to disqualify does not argue that Thanasi
is not entitled to self-representation.” It observed that as of its ruling,
Thanasi was still represented by attorney James Hester of Preovolos Lewin.
The court agreed with Peter that Thanasi and possibly Preovolos Lewin may
be witnesses, and disagreed with Thanasi’s assertion that new counsel would
not resolve the issues Peter raised. The court concluded: “Lastly, the
financial burden of replacing disqualified counsel is minimal, if non-existent
here, as Thanasi is an attorney and he can represent himself.”
Thanasi, represented by attorney Hester, filed this appeal.
Concurrently with the notice of appeal, Thanasi submitted a notice stating
that enforcement of the probate court’s disqualification order had been
automatically stayed. Peter does not dispute Thanasi’s assertion that the
disqualification order is directly appealable. (See Meehan v. Hopps (1955) 45
Cal.2d 213, 215-216; Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 128, but see
Ponce-Bran v. Trustees of Cal. State University (1996) 48 Cal.App.4th 1656,
1661, fn. 3 [observing criticism of the second rationale of appealability in
Meehan].)
DISCUSSION
I. Motion to Dismiss Appeal
Peter moves to dismiss this appeal (as well as Thanasi’s appeal from a
temporary restraining order entered in Peter’s malpractice case) as frivolous
9
or taken solely for delay.6 Peter discusses legal principles relating to
mandatory disqualification of attorneys (see O’Gara Coach County Co., LLC
v. Ra (2019) 30 Cal.App.5th 1115, 1125 [disqualification required if attorney
represents party adverse to a former client if the current representation
involves legal services performed for the former client or where a substantial
relationship exists between the former and current representation];
Fiduciary Trust Internat. of California v. Superior Court (2013) 218
Cal.App.4th 465, 480 [explaining substantial relationship test]) and the
principle that an attorney’s conflict is normally imputed to the law firm as a
whole. (See City and County of San Francisco v. Cobra Solutions, Inc., supra,
38 Cal.4th at pp. 847-848; O’Gara, at p. 1125.)
Peter argues it is “beyond dispute that this probate action involves the
very legal services that Preovolos Lewin performed for [him]”—creating the
challenged irrevocable trusts—and thus “it should be beyond dispute that
disqualifying [Preovolos Lewin] from representing any of the defendants
against Peter was not only well within the trial court’s discretion, but was
required, regardless of whether the conflict is viewed as one of concurrent or
successive representation of adverse interests.” He argues Thanasi’s two
arguments in opposing Peter’s disqualification motion—that Preovolos Lewin
could not be disqualified because Thanasi has the right to defend himself,
and that Peter waived any attorney-client privilege by consenting to the joint
representation with his wife and filing the malpractice action—have no
reasonable chance of success and are completely without merit.
6 We ordered both motions to be considered concurrently with the
appeals. At the same time, we denied Peter’s requests to lift the stay of
enforcement of the court’s disqualification order and to require Thanasi to
post a bond.
10
“[A]ppellate courts possess the . . . inherent power to summarily
dismiss any action or appeal which has as its object to delay, vex, or harass
the opposing party or the court, or is based upon wholly sham or frivolous
grounds.” (Ferguson v. Keays (1971) 4 Cal.3d 649, 658; see also In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 650; People ex rel. Lockyer v. Brar
(2004) 115 Cal.App.4th 1315, 1318.) An appeal is frivolous if it was either
prosecuted for an improper motive, such as to delay the effect of an adverse
judgment, or “indisputably has no merit” that is, when any reasonable
attorney would agree the appeal is “totally and completely without merit.”
(Marriage of Flaherty, at p. 650; Olsen v. Harbison (2005) 134 Cal.App.4th
278, 284.) The court must be able to readily determine this from a brief
inspection of the record. (Accord, Zimmerman v. Drexel Burnham Lambert
Inc. (1988) 205 Cal.App.3d 153, 162 [relatively short record readily showed
the appeal lacked merit].) The power to dismiss an appeal however “must be
used with extreme rarity . . . .” and “should not be used except in the
absolutely clearest cases.” (Brar, at pp. 1318, 1319.) One reason for this rule
“is that determination whether an appeal is frivolous entails at least a peek
at the merits—if not, as is usually the case, a thorough review of the record—
and, having taken that look, the appellate court is in a position to affirm
whatever was appealed rather than dismiss the appeal.” (Brar, at p. 1319.)
In this case, we must examine Thanasi’s arguments and review the
record to determine whether his appellate contentions have arguable merit.
Accordingly, we decline to dismiss the appeal. Having reviewed each of
Thanasi’s points (and points he does not make), we conclude his arguments
are without merit, and on that basis, affirm the order.
II. Thanasi Ignores the Relevant Standard of Review
11
The first glaring omission of Thanasi’s briefing is that he has not
mentioned or applied the well-settled standard of review for disqualification
orders: the deferential abuse of discretion standard. (In re Charlisse C.
(2008) 45 Cal.4th 145, 159; People ex rel. Dept. of Corporations v. SpeeDee Oil
Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 (SpeeDee Oil).) This
standard is difficult to overcome, even though a disqualification motion
“involves concerns that justify careful review of the trial court’s exercise of
discretion.” (SpeeDee Oil, at p. 1144.) It is Thanasi’s burden to establish an
abuse of discretion. (Gilbert v. National Corp. for Housing Partnerships
(1999) 71 Cal.App.4th 1240, 1250.)
Under the abuse of discretion standard, where there are disputed
factual issues, “a reviewing court’s role is simply to determine whether
substantial evidence supports the trial court’s findings of fact; ‘the reviewing
court should not substitute its judgment for . . . express or implied [factual]
findings [that are] supported by substantial evidence.’ ” (In re Charlisse C.,
supra, 45 Cal.4th at p. 159.) A court’s “ ‘application of the law to the facts is
reversible only if arbitrary and capricious.’ ” (Ibid.) Our basic inquiry is
“ ‘whether or not the trial court exceeded the bounds of reason, all of the
circumstances before it being considered.’ ” (In re Marriage of Connolly
(1979) 23 Cal.3d 590, 598; Los Angeles County Metropolitan Transportation
Authority v. Continental Development Corporation (1997) 16 Cal.4th 694,
722.) A showing is insufficient if it “presents a state of facts which simply
affords an opportunity for a difference of opinion.” (Gilbert v. National Corp.
for Housing Partnerships, supra, 71 Cal.App.4th at p. 1250.) We “affirm the
ruling unless ‘there is no reasonable basis for the trial court’s decision.’ ”
(Antelope Valley Groundwater Cases (2018) 30 Cal.App.5th 602, 701.)
12
Notably, Thanasi does not address the court’s factual findings or
challenge the evidence supporting them, particularly its finding that Peter is
a former client of Thanasi and Preovolos Lewin, or that Preovolos Lewin
represented Litsa, with whom Peter is now in a family dispute. He does not
mention the court’s finding that he and possibly Preovolos Lewin might be
witnesses in the probate action.7 Absent a challenge to the sufficiency of the
evidence, we do not disturb these findings, and additionally presume the
existence of every fact the court could reasonably deduce from the evidence
(People v. Morales (2020) 10 Cal.5th 76, 88), indulging reasonable inferences
the court might have drawn. (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1008; see also Antelope Valley Groundwater Cases, supra, 30 Cal.App.5th at
p. 701 [reviewing court defers to lower court’s express and implicit findings
for which there is substantial evidentiary support].)
7 The court ruled: “Thanasi and possibly Preovolos & Lewin [sic] may be
witnesses in this case. In ruling on the [probate] Petition, the court will have
to determine the validity of the Trust and Postmarital Agreement, which
were prepared by Thanasi though the firm, and Thanasi is familiar with the
facts underlying the creation of both documents. Moreover, there is a conflict
of interest in that Thanasi is a beneficiary under the Trust and appointed
Trust Protector with very broad powers to manage the trust, including
amending the trust, adding or removing beneficiaries and resolving any
disputes. As such, Thanasi has a personal stake in the outcome of the
Petition as well.” The advocate-witness rule prohibits an attorney from
acting as both an advocate and a witness in the same proceeding. (Doe v.
Yim (2020) 55 Cal.App.5th 573, 581.) A trial court has discretion to
disqualify a likely advocate-witness as counsel where there is “ ‘a convincing
demonstration of detriment to the opponent or injury to the integrity of the
judicial process,’ ” even despite client consent. (Id. at p. 582, quoting Lyle v.
Superior Court (1981) 122 Cal.App.3d 470, 482.) Thanasi’s failure to address
the court’s ruling on this ground gives us an independent basis to affirm the
disqualification order simply on the presumption of its correctness. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564; Pizarro v. Reynoso (2017) 10
Cal.App.5th 172, 181.)
13
III. The Probate Court Order Expressly Allows Thanasi to Represent Himself
As stated, Thanasi’s main argument, which Peter does not dispute, is
that he has a fundamental right to represent and defend himself. But in his
brief he “submits that his firm should be allowed to represent him in this
matter . . . .” In substance, Thanasi equates himself with his law corporation
Preovolos Lewin: “For purposes of the disqualification motion, Defendant
Thanasi (and his firm, Preovolos Lewin), was the attorney.”
The probate court found that Thanasi in opposing the motion was “not
representing himself in pro per.” This finding is supported in part by
Thanasi’s opposing papers as well as the court’s own minute order, which
show attorney Hester appeared for and represented Thanasi, who is a party
in the matter. Thus, the court ruled that “Thanasi . . . can represent himself”
and its disqualification of Preovolos Lewin does not prevent Thanasi from
appearing in propria persona.
During oral argument, Thanasi conceded that if the court had
disqualified him it would make sense to also vicariously disqualify Preovolos
Lewin. But, he argues, because the court permitted him to represent himself
notwithstanding asserted conflicts, it does not make sense to disqualify the
firm. He asserted there is no authority to permit this, and the court
committed “legal error” in doing so. In his reply brief, Thanasi acknowledges
that attorney Hester is not him, and Preovolos Lewin is a corporation, but he
repeats his argument below that “Peter’s purported concerns about conflicts
of interest and supposed violations of privilege and loyalty will not be
resolved by new counsel.” He says “there is no logical or legal basis” to say he
can represent himself but that Preovolos Lewin, which he owns 100 percent,
cannot defend him.
14
Thanasi cites no authority for these assertions (other than to
distinguish Flatt v. Superior Court (1994) 9 Cal.4th 275 (Flatt) and challenge
the application of rule 1.7, which we address below), or the proposition that
representation by Preovolos Lewin—a separate corporate entity with other
individual attorney employees—is the same as Thanasi representing himself
as a party to the matter. “It is fundamental . . . that a ‘corporation is a
distinct legal entity separate from its stockholders and from its officers.’ ”
(Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729.)
The distinction in representation is evidenced by cases involving attorney fee
requests by pro se attorney litigants for whom recovery of fees is denied (see
Trope v. Katz (1995) 11 Cal.4th 274, 286), and attorney litigants who are
represented by other attorneys in their own law firms on matters involving
the attorney’s own personal interests. (See Gilbert v. Master Washer &
Stamping Co. (2001) 87 Cal.App.4th 212, 214.) In the latter instance, the
attorney litigant may recover attorney fees because “as an attorney litigant
represented by other attorneys in his firm, [the attorney] is not a litigant in
propria persona . . . .” (Id. at p. 220.)
We need not discuss the intricacies of these cases or their rationale any
further, because Thanasi makes no effort to support his apparent position
with authority and reasoned legal arguments. He has not met his burden to
establish that the probate court’s order—which disqualified Preovolos Lewin
from representing Thanasi but not Thanasi from representing himself—is
outside the bounds of reason as somehow violating his fundamental right
torepresent himself in the probate litigation
IV. Thanasi’s Arguments Concerning the Rules of Professional Conduct
Thanasi makes a series of arguments as to why the California Rules of
Professional Conduct do not prevent him from representing himself, and
15
particularly why rules 1.7 and 1.9 do not apply. He points to asserted
inadequacies in Peter’’s showing and distinguishes the cases Peter cited,
arguing Peter misapplied the applicable law as to conflicts of interest.
Thanasi’s focus on the flaws in Peter’s arguments is misplaced.
Thanasi bears the burden on appeal to demonstrate the court’s ruling was
arbitrary and capricious or outside the bounds of reason. We acknowledge
that where the court reached conclusions of law or where there are no
material factual issues, our review is de novo (In re Charlisse C., supra, 45
Cal.4th at p. 159; SpeeDee Oil, supra, 20 Cal.4th at p. 1144) and “a
disposition that rests on an error of law constitutes an abuse of discretion.”
(Ibid.) We address Thanasi’s points with those principles in mind, but
conclude they lack merit for the reasons explained below.
A. Application of Rules 1.7 and 1.9
Pointing to Peter’s summary of rule 1.7,8 Thanasi argues that “for
purposes of this rule, there must be three people: 1) an attorney, 2) a client,
and 3) a former client.” He maintains “[p]arty number two is missing here
because there is no client that Thanasi has chosen to represent.” Similarly,
8 Rule 1.7 provides in part: “(a) A lawyer shall not, without informed
written consent from each client and compliance with paragraph (d),
represent a client if the representation is directly adverse to another client in
the same or a separate matter. [¶] (b) A lawyer shall not, without informed
written consent from each affected client and compliance with paragraph (d),
represent a client if there is a significant risk the lawyer’s representation of
the client will be materially limited by the lawyer’s responsibilities to or
relationships with another client, a former client or a third person, or by the
lawyer’s own interests.”
16
with respect to both rules 1.7 and 1.9,9 Thanasi argues he is not representing
any adverse third party; and there is no conflicting successive representation
on substantially related matters.: “Thanasi had not been hired by a client
that is adversarial to Peter”; “[Thanasi] is not representing ‘another person’
against [Peter]”; “Thanasi’s representation of himself does not present the
scenarios described in [cases describing conflicts of interest such as Flatt,
supra, 9 Cal.4th 275] since there is no representation of a new client whose
interests are adverse to an old client.” Though Thanasi acknowledges that in
a successive representation scenario, courts focus on whether confidences
have been jeopardized and the former client’s expectation of confidentiality
must be preserved, he asserts “[t]hat is not the case here.”10
These arguments are based on the incorrect premise that there is no
third party client adverse to Peter because Thanasi is only representing
himself. They once again conflate Thanasi with his law firm Preovolos
Lewin, and ignore the probate court’s factual finding that Peter was a former
client of Preovolos Lewin. Thanasi fails to acknowledge that by his motion,
Peter (the former client) sought to disqualify Preovolos Lewin (the law firm
9 Rule 1.9, subdivision (a) provides: “A lawyer who has formerly
represented a client in a matter shall not thereafter represent another person
in the same or a substantially related matter in which that person’s interests
are materially adverse to the interests of the former client unless the former
client gives informed written consent.”
10 Thanasi also acknowledges an attorney’s duty of loyalty in a concurrent
representation scenario, arguing this matter does not involve concurrent
representation. The simultaneous representation of opposing parties in the
same litigation is “the most egregious example” of an ethical violation
respecting attorney-client conflicts. (Flatt, supra, 9 Cal.4th at pp. 282-283.)
Preovolos Lewin is not purporting to represent Thanasi and also Peter in the
same litigation, so there is no issue as to simultaneous or concurrent
representation.
17
and its attorney employees) from representing Thanasi (the current client) in
Peter’s probate matter. Thanasi does not challenge the court’s finding that
both he and Preovolos Lewin have intimate knowledge of the circumstances
relating to both the trust and postmarital agreement at issue in the probate
action, as well as his “finances and businesses . . . .” As Peter points out,
Thanasi does not dispute that Preovolos Lewin’s previous work on Peter’s
behalf (drafting the irrevocable trust and the postmarital agreement) is on a
subject substantially related to its representation of Thanasi in the probate
action challenging those same documents. “Where the requisite substantial
relationship between the subjects of the prior and the current representations
can be demonstrated, access to confidential information by the attorney in
the course of the first representation (relevant by definition, to the second
representation) is presumed and disqualification of the attorney’s
representation of the second client is mandatory; indeed, the disqualification
extends vicariously to the entire firm. (Flatt, supra, 9 Cal.4th at p. 283,
citing in part Henriksen v. Great American Savings & Loan (1992) 11
Cal.App.4th 109, 117 [“[W]here an attorney is disqualified because he
formerly represented and therefore possesses confidential information
regarding the adverse party in the current litigation, vicarious
disqualification of the entire firm is compelled as a matter of law”]; and see
California Self-Insurers’ Security Fund v. Superior Court (2018) 19
Cal.App.5th 1065, 1072 [stating “firmly established” rule of law firm’s
vicarious disqualification for attorney’s ethical conflict in the absence of an
effective ethical screen].) Though Peter’s motion sought to disqualify both
Thanasi and Preovolos Lewin, again, the probate court’s order does not
prevent Thanasi from appearing in pro per in the matter.
B. Purpose of Rules of Professional Conduct
18
Thanasi further argues that the purpose of the California Rules of
Professional Conduct is to establish standards for discipline; that the failure
to comply with a rule is a basis for invoking the disciplinary process, not to be
a basis for civil liability or prevent a defendant attorney from representing
himself. Thanasi argues that if some violation or breach of the rules
occurred, the probate court was not the proper forum to make that
determination. The latter assertion is made without citation to authority,
and for that reason we disregard it.
It is an unremarkable proposition that the State Bar Rules of
Professional Conduct govern discipline and not ethical standards, and a rule
violation does not necessarily compel disqualification in the courts. (Hetos
Investments, Ltd. v. Kurtin (2003) 110 Cal.App.4th 36, 47; see also Antelope
Valley Groundwater Cases, supra, 30 Cal.App.5th at p. 621; Kirk v. First
American Title Ins. Co. (2010) 183 Cal.App.4th 776, 792; Great Lakes
Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356, fn. 5.) But
courts analyzing questions of disqualification obtain guidance from these
rules. (Antelope Valley, at p. 621; see Flatt, supra, 9 Cal.4th at p. 282
[deriving the “dispositive principle” governing an attorney-client conflict from
the Rules of Professional Conduct]; Oaks Management Corporation v.
Superior Court (2006) 145 Cal.App.4th 453, 462-463 [judge’s inherent
authority to disqualify an attorney “ ‘is frequently exercised on a showing
that disqualification is required under professional standards governing
avoidance of conflicts of interest or potential adverse use of confidential
information’ ”].)
Here, while the probate court quoted rules 1.7 and 1.9, it also
recognized that under Code of Civil Procedure section 128, subdivision (a)(5)
it had the inherent power to control the conduct of its ministerial officers in
19
furtherance of justice. This was a proper explanation of its authority in
considering whether to disqualify the Preovolos Lewin firm. (See SpeeDee
Oil, supra, 20 Cal.4th at p. 1145; Capra v. Capra (2020) 58 Cal.App.5th 1072,
1092.) The probate court expressly stated that it was to “undertake a
cautious balancing of competing interests,” that is, “ ‘weigh the combined
effect of a party’s right to counsel of choice, an attorney’s interest in
representing a client, the financial burden on a client of replacing disqualified
counsel and any tactical abuse underlying a disqualification proceeding
against the fundamental principle that the fair resolution of disputes within
our adversary system requires vigorous representation of parties by
independent counsel unencumbered by conflicts of interest.’ ” This again was
a proper statement of the relevant considerations. (See SpeeDee Oil, at pp.
1144-1145; Kirk v. First American Title Ins. Co., supra, 183 Cal.App.4th at
pp. 791-792.) Thanasi does not establish that the probate court disqualified
the Preovolos Lewin firm based strictly on its or Thanasi’s violation of the
Rules of Professional Conduct, and we see nothing in the probate court’s
order purporting to do so. Thanasi’s bare points concerning the disciplinary
purpose of these rules do not demonstrate that the court abused its
discretion.
C. Thanasi’s Discussion of Flatt and SpeeDee Oil
Thanasi argues that Peter’s cited cases, including SpeeDee Oil, supra,
20 Cal.4th 1139, Flatt, supra, 9 Cal.4th 275, and In re Complex Asbestos
Litigation (1991) 232 Cal.App.3d 572 did not “support[ ] disqualification
under the circumstances herein and do not apply.” Thanasi “does not dispute
[the] basic tenet” of SpeeDee Oil and Asbestos Litigation to the extent they
relate the considerations a court must assess faced with a disqualification
motion. But he argues “the circumstances [in those cases] do not apply
20
because the primary concern raised by Peter will not occur.” Thanasi does
not further develop the assertion.
Thanasi next criticizes Peter’s reliance on Flatt, supra, 9 Cal.4th 275,
and points to Peter’s discussion of a prior successful motion to disqualify
Thanasi’s law firm brought by Peter’s brother, which was the subject of a
2007 unpublished opinion in this court (In re Estate of Preovolos (Dec. 6,
2007), D049732). Thanasi cites Flatt’s analogy of an attorney “serving two
masters.” (See Flatt, at p. 286 [“The mandatory rule of disqualification in
cases of dual representation involving unrelated matters—analogous to the
biblical injunction against ‘serving two masters’ (Matthew 6:24)—is such a
self-evident one that there are few published appellate decisions elaborating
on it”].) He then purports to quote a statement from Flatt concerning an
attorney’s successive representation of clients with adverse interests.11
(Flatt, at p. 283.) Thanasi’s sole argument is that “the circumstances herein
did not involve ‘two masters’ as was the situation in all of Peter’s cited cases,
including the dispute with Peter and [Peter’s brother], and there is no
situation involving an attorney stuck between two clients with adverse
interests.”
Flatt’s “two masters” comment refers to the compromise of an
attorney’s duty of undivided loyalty when he or she simultaneously
represents two client adversaries, a situation not presented by Preovolos
Lewin’s representation of Thanasi against Peter, who is a former client.
11 Thanasi writes: “The Flatt Court stated as follows on page 283:
“Where an attorney successively represents clients with adverse interests,
and where the subjects of two representations are substantially related, the
need to protect the first client’s confidential information requires that the
attorney be disqualified from the second disqualification [sic].” Though the
principle is correct and Flatt discusses it at page 283, this particular quote
does not appear there, or anywhere in the opinion.
21
Thanasi’s point does not change our conclusion. As we have stated, he does
not challenge the court’s factual findings concerning Peter’s status as a
former client or the substantial relationship between the subjects of the prior
and current representations. Given these predicate undisputed facts,
disqualification was warranted.
D. Thanasi’s Remaining Arguments
Thanasi makes two additional arguments. He acknowledges that an
attorney conflict of interest can be resolved if the first client provides
informed written consent, but he states application of this rule here “would
create an absurd scenario that is literally not possible” as he “would have to
ask Peter’s consent if he could represent himself in the action,” an “option
[that is] clearly not available here, leaving Thanasi fewer options than most
attorneys face in purported conflict cases.” (Italics added.) Thanasi next
repeats his argument that Peter’s proposed remedy—that Thanasi obtain
new counsel—will not resolve the issues, given his intimate knowledge of the
substantive issues raised in both the probate petition and in the malpractice
claim.
The first point is misplaced. The probate court’s disqualification order
expressly allows Thanasi to appear in the probate action as a self-represented
attorney litigant. As for the second point, the probate court addressed and
rejected it below, stating: “Counsel’s intimate knowledge of [Peter’s] legal
affairs, finances and businesses is not the issue. The issue is guarding
[Peter’s] right to due process of law, both procedural and substantive. For
instance . . . Respondents must follow certain statutory procedures to gain
access to [Peter’s] personal records kept by the firm, even if the file is sitting
on the desk and readily accessible in the practical sense.” Thanasi’s
22
reiteration of his argument below does not establish the probate court’s
rejection of it was an abuse of discretion.
V. Thanasi’s Assertions Concerning the Attorney-Client Privilege
Thanasi contends based on operation of Evidence Code section 958,12
the attorney-client privilege does not prevent him from representing himself
because Peter has sued him for malpractice and makes claims of wrongdoing
in the probate case, and thus Thanasi has the right to disclose
communications necessary for the protection of his own rights in both cases.
Thanasi devotes three and a half pages of his brief quoting from Peter’s
probate petition, and argues: “It is abundantly clear that Peter has attacked
Thanasi and the rest of the family on multiple fronts. Peter is correct that
the attorney-client privilege is ‘sacred’ in many respects but is incorrect when
he asserts that there are no exceptions. There are, including the right of an
attorney to defend himself against allegations of malfeasance and
wrongdoing as Peter has repeatedly made in both the probate action and the
related malpractice case.”
12 Evidence Code section 958 creates an exception to the attorney-client
privilege “as to a communication relevant to an issue of breach, by the lawyer
or by the client, of a duty arising out of the lawyer-client relationship.” (See
O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42
Cal.App.5th 546, 562; Cassel v. Superior Court (2011) 51 Cal.4th 113, 132
[“exception to the privilege set forth in [Evidence Code] section 958 simply
acknowledges that, in litigation between lawyer and client, the client should
not be able to use the privilege to bar otherwise relevant and admissible
evidence which supports the lawyer’s claim, or undermines the client’s”].)
23
Citing Evidence Code section 912 stating the general rule concerning
the manner in which the attorney-client privilege is waived,13 Thanasi also
argues Peter waived the privilege by filing exhibits in the case, namely, the
irrevocable trust, the postmarital agreement, a confidential statement of
facts, the Preovolos family trust as well as a restatement of that trust, and
the fee agreement Peter signed. According to Thanasi, Peter thereby waived
the privilege by “disclosing virtually every document and fact involving the
circumstances herein.”
These arguments, like most of Thanasi’s other arguments, appear to be
copied verbatim from his opposition papers below. And as to waiver, the
probate court addressed and rejected the argument: “Respondents argue that
[Peter] has waived the attorney-client privilege and consented to joint
representation. However, this is an issue in dispute. There is no evidence of
written consent, as required under the [R]ules of [P]rofessional [C]onduct,
and the waiver by [Peter] does not appear to have been informed and could
possibly be the product of duress.”
To repeat, it is not enough to demonstrate an abuse of discretion for
Thanasi to restate his arguments made in the probate court. As we have
stated, he must establish “ ‘there is no reasonable basis for the trial court’s
decision’ ” (Antelope Valley Groundwater Cases, supra, 30 Cal.App.5th at p.
615) including its express and implied findings, on which we do not substitute
our judgment. (In re Charlisse C., 45 Cal.4th at p. 159.) The standard of
review affords “considerable deference” to the trial court, and “[w]e presume
13 Evidence Code section 912 provides in part: “Except as otherwise
provided in this section, the right of any person to claim [attorney-client
privilege] . . . is waived with respect to a communication protected by the
privilege if any holder of the privilege, without coercion, has disclosed a
significant part of the communication . . . .” (Evid. Code, § 912, subd. (a).)
24
that [it] properly applied the law and acted within its discretion unless
[Thanasi] affirmatively shows otherwise.” (Espejo v. The Copley Press, Inc.
(2017) 13 Cal.App.5th 329, 378.) Thanasi’s failure to focus on the probate
court’s findings and reasoning by itself allows us to conclude he has not met
his appellate burden. In any event, we conclude Thanasi’s arguments are
meritless.
The issue of disqualification is not determined solely by reference to
evidentiary rules such as Evidence Code section 958 relating to the attorney-
client privilege; the California Supreme Court has “repeatedly held that the
disqualification rules are not merely intended to protect client confidences or
other ‘interests of the parties,’; rather, ‘[t]he paramount concern . . . [is] to
preserve public trust in the scrupulous administration of justice and the
integrity of the bar.’ ” (Fiduciary Trust Internat. of California v. Superior
Court, supra, 218 Cal.App.4th at pp. 485-486, quoting SpeeDee Oil, supra, 20
Cal.4th at p. 1145.) Preovolos Lewin’s preparation of the now-challenged
irrevocable trust and postmarital settlement calls into question the firm’s
duties of confidentiality owed to Peter, now that he is in a position adverse to
Thanasi, and the probate court’s order for disqualification furthered the
public’s trust in the integrity of our judicial process. Thanasi’s arguments
concerning the attorney-client privilege are “not legally significant” (Kim v.
The True Church Members of Holy Hill Community Church (2015) 236
Cal.App.4th 1435, 1455) where (1) as here, Thanasi does not challenge the
substantial relationship between Preovolos Lewin’s former representation of
Peter and its current representation of Thanasi, and (2) there is no evidence
25
Peter consented to Preovolos Lewin taking on an adversarial role to him on
Thanasi’s behalf in the probate litigation.14 (Id. at pp. 1454-1455.)
Further, even if the presence or absence of attorney-client privilege was
dispositive of the disqualification question, we cannot agree that Peter’s filing
of the above-listed documents waived the attorney-client privilege on all
communications between Preovolos Lewin and Peter in the course of
Preovolos Lewin’s years of representing Peter and his businesses. More
specifically, the filing and disclosure of these documents did not waive the
privilege for communications leading to their creation. Thanasi’s mere
citation to Evidence Code section 912 is not authority to the contrary.
VI. The Family Court’s Jurisdiction is Irrelevant to the Disqualification Issue
Finally, Thanasi argues all of the probate petition’s claim flow from the
postmarital agreement, and because the enforceability of that agreement is
the exclusive province of the family court, the probate court lacked any basis
to disqualify him from defending himself. Pointing out Litsa sought in her
July 21, 2020 dissolution petition for the family court to dispose of the
marital estate and award support in accordance with the postmarital
agreement, Thanasi maintains the principle of priority of jurisdiction permits
only the family court to determine the validity, enforceability and
applicability of the postmarital agreement.
Peter does not dispute the basic legal proposition concerning tribunals
with concurrent jurisdiction. Rather, he disagrees with the premise that all
of the probate petition claims flow from the postmarital settlement
14 Though there may be a question as to whether Peter consented to
Preovolos Lewin’s joint representation of him and Litsa, there is no evidence
Peter consented to Preovolos Lewin’s representation of Thanasi in either the
probate or malpractice cases.
26
agreement and further argues that the probate court’s disqualification order
does not interfere or conflict with the family court’s jurisdiction.
We agree. Disqualifying Preovolos Lewin for conflicts relating to its
prior representation of Peter is not a decision on the merits of the validity of
the postmarital agreement, disposition of Peter or Litsa’s property rights,
determination of custody or support, or any other issue concerning Peter and
Litsa’s dissolution.
DISPOSITION
The motion to dismiss is denied. The order is affirmed. Respondent
shall recover his costs on appeal.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
27