A.F. v. Jeffrey F. CA4/1

Filed 5/18/22 A.F. v. Jeffrey F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A.F., a Minor, etc., D079373
Plaintiff and Appellant,
v. (Super. Ct. No. 21FDV01528N)
JEFFREY F.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Victor M. Torres, Judge. Reversed.
Beatrice L. Snider and John L. Romaker, for Plaintiff and Appellant.
Niddrie Addams Fuller Singh, Victoria E. Fuller; DeVito & Nore and
Nicole M. Nore, for Defendant and Respondent.
Eleven-year-old A.F. sought a domestic violence restraining order
(DVRO) against her father, Jeffrey F. (Father), who holds joint legal custody
with her mother, Andrea F. (Mother). The petition was filed by Mother on
A.F.’s behalf. Mother sought appointment as A.F.’s guardian ad litem (GAL)
in the domestic violence (DV) matter at the same time. The court granted the
request for GAL appointment the same day. A.F. was represented by
attorney Edward Castro in the domestic violence matter. Castro previously
represented Mother in her marital dissolution from Father.
Father objected to Mother’s appointment as GAL and to Castro’s
representation of A.F., contending Castro had a conflict of interest under
Rule 1.7(a), (b) of the State Bar Rules of Professional Conduct, (Rule 1.7).
The court removed Mother as GAL and granted Father’s request to disqualify
Castro.
A.F. appeals, contending (1) Father lacks standing to challenge Castro’s
representation of A.F.; (2) the court incorrectly concluded Castro
simultaneously represents Mother and A.F. and consequently abused its
discretion by applying Rule 1.7 to disqualify Castro; and (3) the court should
have considered the rules governing successive representation and denied the
request for disqualification.
We assume Father has standing to challenge Castro’s representation of
his minor child A.F. However, we conclude the record lacks substantial
evidence to support the court’s finding that Castro simultaneously
represented Mother and A.F., and it was therefore an abuse of discretion to
apply Rule 1.7 to disqualify Castro. We decline to draw any conclusion
regarding the propriety of disqualifying Castro under the rules and standards
governing successive representation because it would require a fact-intensive
evaluation not sufficiently developed in the record before us. Accordingly, we
2
will reverse the order disqualifying Castro as attorney in the related matters
before the court and remand the matter for proceedings consistent with this
opinion.1
I
BACKGROUND AND PROCEDURAL FACTS
In 2013, when A.F. was four years old, Mother sought and received a
DVRO and a criminal protective order against Father.2 Then, Mother and
Father dissolved their marriage in 2015. As part of the dissolution, they
reached a marital settlement agreement that included child custody, and the
court retained jurisdiction over the matter for purposes of resolving disputes.
The custody agreement gives parents joint legal care, custody, and
control of A.F. It also states, “The child shall not be exposed to court papers
or disputes between the parents, and each parent shall make every possible
effort to ensure that other people comply with this order.”
Mother was represented by Edward Castro in the dissolution
proceedings; Castro filed a notice of withdrawal of attorney of record on
November 17, 2015.
1 We grant Father’s unopposed request for judicial notice of court records
demonstrating Castro substituted out as A.F.’s attorney of record following
his disqualification, then substituted back in as A.F.’s attorney of record
following our grant of supersedeas relief staying enforcement of the
disqualification order pending resolution of this appeal. (See Evid. Code,
§ 452, subd. (d).)
2 The protective orders ran concurrently and expired in 2016.
3
In October 2019, Mother sent an email to Father in which she
referenced getting advice from her attorney, and she offered to have “Ed” set
a court date if the parties could not resolve their issue.3
On April 2, 2021, Castro filed a DVRO petition on behalf of Mother as
GAL for A.F. against Father. The petition included a request for a child
custody and visitation order on behalf of Mother as the GAL, granting Mother
full legal and physical custody, with no visitation for Father.4 Castro
simultaneously sought approval of Mother as the GAL, which the court
granted the same day.
The petition included a declaration by Mother that detailed recent
events between A.F. and Father told from Mother’s perspective. It also
included information about Mother’s past DVRO against Father, as well as
allegations that she believed Father had a problem with pornography based
on her experiences with him during the time they were married.
Because of the custody request in the petition, the court initially
consolidated the civil DVRO action and the family law dissolution matter in
April 2021. It also set trial on the DVRO request. Father’s attorney notified
the court that Father intended to seek removal of Mother as the GAL and
request disqualification of Castro.
3 The court sustained A.F.’s objection to Father’s statement in his
declaration that Mother may have continued to consult with Castro as her
attorney based on inferences he drew from this email. The court admitted
the email itself.
4 The court told the parties that it was not appropriate for a child, in a
DVRO request, to seek modification of custody orders granted in a dissolution
under Family Code section 6323. It also explained that the remaining
requests raised by Father were not appropriate for the domestic violence case
without a finding of domestic violence one way or the other.
4
Father filed a request for order seeking removal of Mother as the GAL,
disqualification of Castro as A.F.’s attorney in the DVRO matter and as
Mother’s attorney in the family law matter, appointment of counsel for A.F.,
reunification therapy, and appointment of an individual therapist for A.F.
Father’s memorandum of points and authorities cited Rule 1.7, which
prohibits representation of a client absent informed written consent from
each client when the representation is directly adverse to another client
(Rule 1.7(a)) and provides that a lawyer shall not represent a client absent
informed written consent from each affected client when there is a significant
risk the responsibility to or relationship with a third party would materially
limit the representation (Rule 1.7(b)).
In May 2021, the court unconsolidated the two matters, but the cases
remain related.
During the June 2021 hearing, Father’s counsel argued that Mother
could have taken other action within family court, and that Mother was not a
disinterested and unbiased individual who could distinguish between her
feelings toward Father and what was in the best interest of A.F.
The court granted the motion to replace Mother as the GAL. It
explained: “I find that mother and her alignment so closely with the minor
child and her past conduct of aligning against father . . . warrants the mother
being the inappropriate party to be the guardian ad litem.”
The court told the parties that it did not have competent evidence in
front of it that Castro had engaged in any substantial conduct that
disqualified him. Although the court did not believe it was appropriate for
Castro to represent A.F., it noted that it did not see authority suggesting as
much.
5
Father’s counsel argued during the hearing that Castro could not
“divorce himself . . . from the prior representation” of Mother and argued
Father did not know “what information [Castro] obtained from a minor child,
which now [Castro]’s going to use in his representation of [Mother].” The
court told the parties that “as far as removing or disqualifying Mr. Castro in
the dissolution matter,” that issue was not before the court at that time. It
reserved on the issue of disqualification and took the matter under
submission.
The court issued its written statement of decision in July 2021. The
order granted Father’s motion to disqualify Castro.5 The court applied
Rule 1.7, addressing conflicts of interest among current clients (Rules Prof.
Conduct, former rule 3-310), and it concluded that Mother’s act of signing a
conflict of interest waiver suggested that Castro separately represented
Mother and A.F. Additionally, the court noted that the petition for the DVRO
requested custody orders, which could only be brought by Mother herself
under Family Code6 section 6323, not by A.F. or Mother as the GAL.
The court ultimately concluded that Rule 1.7 applied and found that
Mother as the GAL could not provide consent to waive a conflict between
Castro’s representation of A.F. and Castro’s representation of Mother. And it
concluded that any waiver signed on A.F.’s behalf by Mother was not valid
because the court had not yet granted permission for Mother to serve as the
5 The order was issued in case No. 21FDV01528N (the DV matter), but it
also disqualified Castro in case No. DN171362 (the dissolution matter).
6 Statutory references are to the Family Code unless otherwise specified.
6
GAL at the time the waivers were signed.7 Thus, while the conflict waiver
was valid as to Mother, who had authority to sign it on her own behalf, the
representation did not comply with Rule 1.7, which requires informed written
consent by each client. The court also invited the parties to appear ex parte
to set a hearing to resolve the issue of who would serve as A.F.’s GAL in the
DV matter.
A.F. timely appealed the disqualification of Castro.
II
DISCUSSION
A. Standing
A moving party “must have standing, that is, an invasion of a legally
cognizable interest, to disqualify an attorney.” (Great Lakes Construction,
Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1357 (Great Lakes).) Standing
is a question of law, which we may determine independently of the trial
court’s ruling. (Id. at p. 1354.) Although the complaining party generally
“must have or must have had an attorney-client relationship with the
attorney” he seeks to disqualify (id. at p. 1356), “no California case has held
that only a client or former client may bring a disqualification motion”
(Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204). Further, while
“imposing a standing requirement for attorney disqualification motions
protects against the strategic exploitation of the rules of ethics and guards
against improper use of disqualification as a litigation tactic” (Great Lakes,
at p. 1358), a paramount concern is “to preserve public trust in the
7 The court also noted that at the time the conflict of interest waiver was
signed, Mother and Father shared legal custody of A.F.
7
scrupulous administration of justice and the integrity of the bar” (People
ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20
Cal.4th 1135, 1145 (SpeeDee Oil)).
Father contends he has standing because he has a personal stake in
protecting A.F.’s best interests, and he believes a conflict of interest between
A.F.’s and Mother does not serve A.F.’s best interests. Father holds joint
legal custody with Mother, and a parent’s interest in the companionship,
care, custody, and management of his or her child is a fundamental civil
right. (In re B.G. (1974) 11 Cal.3d 679, 688; In re Dakota H. (2005) 132
Cal.App.4th 212, 223.) Thus, if Father believes Castro’s concurrent
representation of A.F. and Mother is not in A.F.’s best interests, and Mother
acting as the GAL is the party who waived any potential conflict, this may
give Father standing. Further, as Father notes, even if he does not have
standing as the joint legal custodian, the court has authority to disqualify
counsel under Code of Civil Procedure section 128, subdivision (a)(5).8 (See
SpeeDee Oil, supra, 20 Cal.4th at p. 1145.) The court here recognized
Mother’s alignment with A.F. in the civil DVRO matter is consistent with her
past conduct and views in the marital matter, even though the final
agreement granted joint legal care, custody, and control to the parents.
At least arguably, a legally cognizable interest for disqualifying an
opposing attorney may arise from generalized policy concerns surrounding
the rule, e.g., the integrity of the process. (Lyle v. Superior Court (1981) 122
Cal.App.3d 470, 482-483 [addressing an attorney-witness situation].) In this
8 Code of Civil Procedure section 128, subdivision (a)(5) provides that
every court has the power to control the conduct of its ministerial officer and
all other person connected with a judicial proceeding before it in all matters.
8
factual scenario, the court can assume without deciding that Father may
assert standing to object to opposing counsel’s representation of his minor
child.
B. Guardian Ad Litem
1. Role of GAL
Code of Civil Procedure section 372, subdivision (a) requires a minor
who is a party to appear by a guardian ad litem. (See also In re Marriage of
Lloyd (1997) 55 Cal.App.4th 216, 223.) There is no statutory requirement to
provide notice to a parent before a GAL is appointed. (Code Civ. Proc.,
§§ 372, 373; Fam. Code, § 7635; Alex R. v. Superior Court (2016) 248
Cal.App.4th 1, 7-8; Williams v. Superior Court (2007) 147 Cal.App.4th 36, 48
(Williams).) When a minor is living with a parent without counsel and seeks
a protective order, notice of appointment of a guardian ad litem must be sent
to at least one parent unless the court determines the notice would not be in
the child’s best interest. (Code Civ. Proc., § 372, subd. (b)(2); Alex R., at p. 8.)
When there is no conflict of interest, the appointment is usually made upon
application. (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149.)
“[A] guardian ad litem represents the interests of a person in legal
proceedings who lacks capacity to represent himself or herself in those
proceedings.” (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965.) “In
the adversarial context, the guardian ad litem’s function is to protect the
rights of the [minor], control the litigation, compromise or settle the action,
control procedural steps incident to the conduct of the litigation, and make
stipulations or concessions in the [minor] person’s interests. [Citation.] In
such cases, the guardian ad litem’s role is ‘more than an attorney’s but less
than a party’s.’ [Citation.]” (In re Charles T. (2002) 102 Cal.App.4th 869,
875-876.) The GAL is responsible for assisting the attorney in protecting the
9
rights of the minor. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453.)
But the attorney does not represent the GAL, who is not a party to the action
(J.W., at p. 964 [GAL is not party to an action]; see Shen v Miller (2012) 212
Cal.App.4th 48, 61-62); thus, the attorney represents the minor.
“[W]hen considering the appropriate guardian ad litem for a minor
plaintiff in a civil lawsuit, the central issue is the appropriate protection of
the minor’s legal right to recover damages or other requested relief.”
(Williams, supra, 147 Cal.App.4th at p. 47.) Further, “ ‘[w]hen there is a
potential conflict between a perceived parental responsibility and an
obligation to assist the court in achieving a just and speedy determination of
the action,’ a court has the right to select a guardian ad litem who is not a
parent if that guardian would best protect the child’s interests.” (Id. at
p. 49.) The “court is, in effect, the guardian of the minor and the guardian ad
litem is but an officer and representative of the court.” (Serway v. Galentine
(1946) 75 Cal.App.2d 86, 89.)
2. Mother’s Role as GAL
When A.F. filed for a DVRO against Father, she filed a request for
appointment of Mother as her GAL. The court granted this request the same
day. Later the court removed Mother as the GAL. However, its analysis
regarding the conflict of interest from Castro’s representation was based on
Mother’s role as the GAL and not her status as a party in the related
dissolution matter. Mother’s removal as the GAL changes her role in the DV
matter and thus affects the propriety of Castro’s disqualification, as we
explain.
10
C. The Request for Attorney Castro’s Disqualification
1. Standard of Review
We review an attorney’s disqualification for an abuse of discretion
(In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561 (Zimmerman);
Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705
(Jessen)) and “accept[ ] as correct all of [the court’s] express or implied
findings supported by substantial evidence.” (City National Bank v. Adams
(2002) 96 Cal.App.4th 315, 322 (City National Bank).) We presume the trial
court’s order is correct, and we indulge all presumptions to support the order,
resolving conflicts in favor of the prevailing party and the trial court’s
resolution of any factual disputes. (Zimmerman, at pp. 561-562.) “In
exercising discretion, the trial court is required to make a reasoned judgment
which complies with applicable legal principles and policies.” (Id. at p. 561.)
Further, “if substantial evidence supports the trial court’s express or implied
findings of fact, we review the resulting legal conclusions for an abuse of
discretion.” (Ibid.) Thus, we are bound by the substantial evidence rule as
well. (Ibid.) “We will reverse the trial court’s ruling only where there is no
reasonable basis for its action.” (City National Bank, at p. 323.)
2. Types of Conflict of Interest
Typically, disqualification motions arise in two factual
circumstances: “(1) in cases of successive representation, where
an attorney seeks to represent a client with interests that are potentially
adverse to a former client of the attorney; and (2) in cases of simultaneous
representation, where an attorney seeks to represent in a single action
multiple parties with potentially adverse interests.” (In re Charlisse C.
(2008) 45 Cal.4th 145, 159.) “In simultaneous representation cases, ‘[t]he
primary value at stake . . . is the attorney’s duty—and the client’s legitimate
11
expectation—of loyalty, rather than confidentiality.’ ” (Id. at p. 160., quoting
Flatt v. Superior Court (1994) 9 Cal.4th 275, 284 (Flatt).) In successive
representation cases, the concern is an attorney’s duty of confidentiality.
(Western Sugar Coop v. Archer-Daniels-Midland Co. (C.D. Cal. 2015) 98
F.Supp.3d 1074, 1080 (Western Sugar Coop) [applying the California State
Bar Act and the California Rules of Professional Conduct].) In successive
representation cases, courts apply the substantial relationship test, but in
simultaneous representation cases, the rule is per se or automatic
disqualification in all but a few cases. (Jessen, supra, 111 Cal.App.4th at
p. 705, citing Flatt, supra, 9 Cal.4th at p. 284.)
Automatic disqualification can be avoided in simultaneous
representation cases when there is informed written consent when the
attorney represents more than one client in a matter where there is a
potential conflict, when there is an actual conflict between the concurrently
represented clients, or when the attorney represents clients with adverse
interests in two separate matters. (Sharp v. Next Entertainment, Inc. (2008)
163 Cal.App.4th 410, 429 [addressing Rules Prof. Conduct, former rule 3-
310(C)(1)-(C)(3)].) Also, when a client’s litigation costs are being paid by a
third party, the client must provide informed written consent for the
arrangement. (Sharp, at p. 430 [referencing Rules Prof. Conduct, former
rule 3-310(F)].) In these situations, the attorney must disclose relevant
circumstances as well as any actual or reasonably foreseeable adverse
consequences. (Sharp, at p. 429.) “In order for there to be valid consent,
clients must indicate that they ‘know of, understand and acknowledge the
presence of a conflict of interest. . . .’ [Citation.]”) (Ibid.)
12
3. Simultaneous Representation
On appeal, A.F. challenges the court’s conclusion that Castro was
engaged in concurrent representation. The court considered whether Castro
represented Mother only, first as a party to the dissolution and second as the
GAL in the DV matter. But it concluded the representations were separate
because Mother’s declaration stated she hired Castro to represent A.F., and
because Mother signed a conflict of interest waiver, which would be
unnecessary if she were the only client. It identified the possibility of
concurrent representation based on the initial request for custody orders
selected, because, it explained, that request cannot properly be made by a
minor. (See § 6323.) It also considered the details Mother included in her
declaration regarding her relationship with Father, which were not directly
related to the incidents giving rise to the DVRO request.
In its findings, the court did not expressly identify simultaneous
representation or explain the conflict of interest the simultaneous
representation created, but its application of Rule 1.7, which requires
disqualification of an attorney without a valid waiver of conflict, shows it
concluded Castro was simultaneously representing Mother and A.F.
Ultimately, the court disqualified Castro because it found A.F. had not
provided the necessary informed, written consent, as Mother was not her
GAL at the time the waiver was signed on A.F.’s behalf.
We begin by asking if there is substantial evidence to support the
finding that Castro simultaneously represented Mother and A.F. (City
National Bank, supra, 96 Cal.App.4th at p. 322.) If so, we then evaluate
whether the court abused its discretion by disqualifying Castro.
(Zimmerman, supra, 16 Cal.App.4th at p. 561.) We note that in response to
A.F.’s petition for a DVRO, Father requested and received consolidation of
13
the dormant dissolution matter and the DV matter, but the cases were
subsequently unconsolidated. Father’s request for order seeking dismissal of
a GAL or removal of Mother as GAL and disqualification of Castro as counsel
for Mother or A.F. was initially filed in the consolidated matter, but once the
matters were unconsolidated, the requests remained part of the DV matter.9
The court’s implicit conclusion that Castro represented both Mother and A.F.
had to derive from material submitted in connection with A.F’s DVRO
petition because there was no pending activity in the dissolution matter at
the time.10
The court mentioned Father’s contention that Mother was being
advised on her own behalf by Castro because of a reference to “Ed” in a 2019
email, but it found Father’s conclusion was speculative. It admitted the
email that referenced a communication Mother had with her attorney
regarding the meaning of an item in the custody agreement and later stated
that she could, if Father preferred, have “Ed” set up a hearing to resolve the
matter. But the email was from 2019, long before A.F.’s 2021 petition. Thus,
even if it showed Mother were represented by Castro in 2019, that does not
demonstrate simultaneous representation in 2021.
The evidence the court identified as demonstrating simultaneous
representation addressed the blurred lines between Castro’s representation
9 The request for disqualification sought disqualification of Castro from
representing either Mother or A.F. in the matters before the court.
10 The court also noted the dissolution matter was not before it, so any
disqualification of Castro in that matter would be premature. We recognize
that the outcome of the DV matter could result in actual or potential conflict
if there are subsequent proceedings in the dissolution matter and Castro
represents Mother there. However, those conflicts are not presently before
the court.
14
of Mother as the GAL and Castro’s representation of A.F. For example,
Mother’s declaration in the DVRO petition detailed conflicts she had with
Father, including information about her past restraining orders against him
and her suspicions and allegations about Father’s interest in pornography.
These details were specific to Mother personally and did not provide
information about A.F.’s relationship with Father. The information was
provided by Mother, not by Castro in his capacity as A.F.’s attorney. And it
raised a concern about the propriety of Mother’s role as the GAL in part
because the custody agreement prohibits parents from exposing A.F. to court
papers or disputes between A.F.’s parents. But it did not show that Castro
was representing Mother.
Father argues that he and Mother had been engaged in disputes about
custody for years, and she had previously attempted to eliminate Father’s
contact with A.F. The declaration that supports these claims does not show
Castro represented Mother to navigate any of these disputes. Instead, it
details that A.F. began participating in activities scheduled by Mother during
Father’s parenting time, argues Mother has contributed to the tension
between Father and A.F., and offers explanations of what transpired between
A.F. and Father to provide context for the incidents described in the DVRO
petition.
Father contends substantial evidence supports the court’s conclusion
that Castro’s representation of A.F. would be materially limited by Castro’s
relationship with Mother. But the evidence Father points to regards Castro’s
prior relationship with Mother, possibly as recently as 2019, and statements
in the declaration that regarded details to which A.F. should not have had
15
access under the terms of the custody agreement. Those statements do not
demonstrate simultaneous representation because Mother made them as
A.F.’s GAL.
Father posits that Mother’s interests diverge from A.F.’s interests
because Mother wanted to limit or eliminate A.F.’s contact with Father and
that is the remedy A.F. sought through a DVRO. But those positions are not
in conflict. If, as Father claims, Mother’s goal is eliminating Father’s contact
with A.F., and A.F.’s goal is the same, there is no conflict. To the extent
Father is concerned that Castro may have obtained evidence from A.F. that
could prejudice Father if Castro “seek[s] to continue his representation of
[Mother] . . . ,”, we note that such representation of Mother is speculative,
and that Castro’s duty of confidentiality is not to Father.
We recognize, as the trial court did, that Mother’s role as the GAL was
improper under the circumstances. Although a GAL acts in the minor’s
interests, Mother’s statements about her personal history and impressions of
Father fall outside that role. The trial court addressed this by removing
Mother as the GAL, a decision neither party challenges. Thus, before us is
the claim that Castro is simultaneously representing Mother and A.F. when
Mother is no longer a participant in the DV litigation.
Father compares Castro’s representation of A.F. to that of a neutral
minor’s counsel who represents a child in a custody dispute case to highlight
his concern that Castro was meeting with Mother and A.F. together, that
Castro was “unduly influenced” by Mother’s positions and perceptions, which
were not in “the interests of the minor child,” and that Castro would
influence A.F.’s perceptions of Father and thereby impinge on Father’s
parental rights. None of these concerns demonstrates simultaneous
representation or is unique to Castro serving as A.F.’s attorney.
16
Further, the comparison is inapt. A neutral minor’s counsel in a
dissolution plays an entirely different role than counsel hired in a civil
matter. In family court, counsel for a minor has a statutorily-imposed duty to
present to the court recommendations based on what the attorney believes is
in the best interests of the child in addition to the child’s wishes. (§ 3151,
subd. (a); Cal. Rules of Court, rules 5.242 (i) & (j); In re Zamer G. (2007) 153
Cal.App.4th 1253, 1266 [counsel for minor has duty to advocate for child’s
best interest].) In a civil matter, attorneys representing minors—or any
other party who has a GAL—are bound by Business and Professions Code
section 6068 and the State Bar Rules of Professional Conduct, and have an
obligation to zealously represent their clients’ interests within the bounds of
the law. (People v. McKenzie (1983) 34 Cal.3d 616, 631 [duty to represent
client zealously within bounds of law]; see Guillemin v. Stein (2002) 104
Cal.App.4th 156, 167-168 [explaining application of sanctions must not
conflict with duty to represent client zealously].) While Father may have
preferred the allegations A.F. raises in her DVRO petition to have been
raised in the custody context in the dissolution matter, the Domestic Violence
Prevention Act (§ 6200 et seq.) allows a child to file a petition as a party to
the action. (§§ 6211, subds. (f), 6301, subd. (a), 6301.5.)
None of Father’s arguments nor the facts upon which he relies direct us
to evidence that Castro simultaneously represents Mother and A.F. We
cannot find substantial evidence to support the court’s implicit conclusion
that Castro simultaneously represents Mother and A.F. It was, therefore, an
abuse of discretion to apply Rule 1.7 to disqualify Castro.
4. Successive Representations
A.F. contends the trial court should have considered whether there was
successive representation and, if so, whether a conflict of interest between
17
Mother and A.F. actually existed, justifying Castro’s disqualification. Father
contends on appeal that this issue was forfeited because A.F. did not raise it
below. (See Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480,
1488, fn. 3; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195
Cal.App.3d 1271, 1281 [“An argument or theory will generally not be
considered if it is raised for the first time on appeal”]; but see Piscitelli v.
Friedenberg (2001) 87 Cal.App.4th 953, 983 [recognizing issues of law
regarding undisputed facts can be raised on appeal].)
A.F. did not raise successive representation in her briefs to the trial
court.11 Father’s memorandum of points and authorities in support of his
request to disqualify Castro challenged Castro’s representation under
Rule 1.7, and he did not explicitly raise successive representation as an issue.
However, rather than limiting his focus to arguing the representation created
a conflict that impacted Castro’s duty of loyalty, as is implicated by conflicts
governed by Rule 1.7 (see Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112
Cal.App.4th 810, 822 [courts concerned with duty of loyalty in concurrent
representation cases]; City National Bank, supra, 96 Cal.App.4th at p. 327
[same]), Father also expressed concern that such concurrent representation
would present a “breach of confidentiality,” the concern raised by successive
representation, found in Rule 1.9 (Rules Prof. Conduct, rule 1.9(c)(1) & (2);
Western Sugar Coop, supra, 98 F.Supp.3d at p. 1080 [successive
representation of clients with adverse interests focuses on duty of
confidentiality].).
11 A.F.’s contentions in her reply brief that her memorandum in
opposition to Father’s request for order asked the court to consider successive
representation cited to cases that addressed successive representation but did
not offer any analysis of the issue. It focused on responding to Father’s claim
of simultaneous representation.
18
Although the court noted Father’s concern in its written order, it did
not consider whether Castro successively represented Mother and A.F. or
analyze whether there was a conflict of interest on that basis. The court did
not ask whether the dissolution matter and the DV matter were substantially
related. (See Rules Prof. Conduct, rule 1.9(a) & cmts. 1-3; Western Sugar
Coop, supra, 98 F.Supp.3d at p. 1088, citing Flatt, supra, 9 Cal.4th at p. 283.)
It did not expressly find that Castro’s relationship to A.F. could breach his
duty of confidentiality to Mother. (Zimmerman, supra, 16 Cal.App.4th at p.
563.) It did not discuss whether Castro’s actions would injuriously affect
Mother. (See Id. at p. 562; City National, supra, 96 Cal.App.4th at pp. 323-
324.) And it did not “ ‘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. [Citations.]’ ” (Zimmerman, at pp. 562-563.)
Had it considered successive representations, the court could have
considered whether Mother’s waiver was valid under the Rules of
Professional Conduct.12 Although Father raised issues implicated by
12 A lawyer may reveal information protected from disclosure by Business
and Professions Code section 6068, subdivision (e)(1) if the client gives
informed consent. (Rules Prof. Conduct, rule 1.6(a).) However, an attorney
cannot use information protected via Rule 1.6 of the Professional Rules of
Conduct to the disadvantage of the former client or reveal information
acquired from the former relationship. (Rules Prof. Conduct, rule 1.9,
subds. (c)(1) & (c)(2).) The waiver Mother signed on her own behalf is not in
the record. Moreover, the parties have not argued on appeal that once a
proper GAL is appointed, a minor is unable to provide informed consent.
19
successive representation, nothing indicates the trial court considered this
argument when it disqualified Castro, and we decline determine whether
there is a conflict of interest created by successive representation that
justifies or requires Castro’s disqualification because the record is
undeveloped on this issue.
Given Mother’s removal as the GAL and the lack of substantial
evidence to support the court’s implied finding of simultaneous
representation, we cannot find a reasonable basis for the court’s
disqualification of Castro based on the record before us. Because we find the
court abused its discretion in disqualifying Castro on the basis that he
simultaneously represents Mother and A.F., we will reverse the
disqualification of Castro and remand the matter for further proceedings
consistent with this opinion.
DISPOSITION
We reverse the order disqualifying Castro as counsel in case
Nos. 21FDV01528N and DN171362, and we remand the matter to the trial
court for further proceedings. We express no opinion regarding whether
disqualification would be appropriate under another rule or standard.
20
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DO, J.
21