California Court Reverses Disqualification of Attorney in Divorce Case

law-library-282848-mMany couples that make the decision to separate and pursue a divorce do so with the assistance of counsel. And in cases involving the custody and general welfare of children, most would strongly recommend consulting with a family lawyer first. Going through a divorce proceeding, by its very nature, will disrupt your life and require you to consider and address important, life-changing issues. Because the outcome of a divorce proceeding can have lasting financial and legal implications, it is extremely important to protect your rights. And, since local state laws apply to dissolution proceedings, you are encouraged to reach out to a nearby San Diego family law attorney as soon as possible.

Attorneys who represent parties in divorce cases before a California court are expected to follow the local State Bar Rules of Professional Conduct (the “Rules”). In a recent divorce case, the husband argued that wife’s counsel violated one of the Rules during the couple’s proceedings. Here, the court awarded wife the marital home, with the express condition that she was expected to list the property for sale immediately – in order to terminate husband’s share of the mortgage obligation (or “community debt” on the property). During the time that the property was on the market and in escrow, wife failed to pay some of the mortgage payments. The Bank recorded a default notice and initiated a foreclosure proceeding.

According to wife, she sold the property to her lawyer in order to avoid foreclosure. The agreement of sale set forth the parties’ client-attorney relationship, the wife’s duty to sell the property, the foreclosure status of the home, and the wife’s inability to make mortgage payments. The contract specified that wife had the right to seek independent counsel with respect to the sale, and that she understood the terms of the agreement.

Subsequent to the sale, husband sought to join wife’s attorney “as a necessary party” to the divorce proceedings, as he was now the owner of the marital home. Husband further moved to disqualify wife’s attorney, alleging that he violated Rule 3-300, which prohibits an attorney from entering into an unfair business transaction with a client. The trial court disqualified wife’s attorney, and she appealed, arguing that the court erred in doing so.

The court of appeals reviewed whether the lower court erred by disqualifying wife’s attorney on the basis of a request by husband. First, the court pointed out that under California law, the complaining party (here, the husband) must have “standing” in order to seek such disqualification. That is, there must have been an attorney-client relationship with the attorney in question, or some other fiduciary or confidential relationship. The court concluded that here, husband did not have a “personal stake” in having wife’s attorney disqualified, and therefore, had no standing.

However, the trial court reasoned that it had the authority to disqualify the attorney despite a lack of standing. The court of appeals reviewed the facts in this case and concluded that such authority did not exist here. Under the law, this authority may be invoked only if the alleged misconduct would have a continuing effect on the judicial proceedings. The court saw no continuing effect of wife’s attorney’s alleged misconduct on future proceedings.

As part of its decision, the court pointed to a client’s right to counsel. Wife understood the situation at hand and chose to continue working with the attorney. This case nicely illustrates the unique nature of divorce cases and how important it is to consult with an experienced family law attorney who knows and understands the local requirements and laws. Roy M. Doppelt has been representing parties involved in family law disputes for more than 20 years. His office conveniently serves clients throughout Southern California, including San Diego, Encinitas, La Jolla, and Chula Vista. For a free consultation, contact Doppelt & Forney through our website, or give us a call toll-free at (800) ROY IS IT (769-4748).

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