REQUIREMENT OF "STANDING" TO
DISQUALIFY OPPOSING DIVORCE COUNSEL
Feel like the other party’s attorney has been unethical in your divorce
case and want them disqualified from hassling you further? I'm sure
many litigants do! But what can be done about these situations? Let’s
try a request from you for a disqualification of them? But … not
so fast! You need "standing" to complain about opposing counsel's
That seems to be the essence of a recent appellate decision out of the
Second Appellate District, Division One, in
In re Marriage of Murchison (2016) 245 Cal.App.4th 847. In
Murchison, the husband sought to disqualify the wife’s attorney following
a deal between the wife and her attorney that he would buy the marital
home that his client was awarded in the divorce case. The trial court
did disqualify the wife’s attorney pursuant to a perceived violation of
Rules of Professional Conduct, Rule 3-300, prohibiting attorneys from entering into unfair business transactions
with their clients. Except, the husband himself had no business relationship
with that attorney, and the former family residence had been awarded to
the wife. Which, of course, would piss off most former co-owners under
these facts - who wants his wife's attorney to end up with his home?
Yikes! But, alas, the trial court was reversed in its reinforcement of
the prior H's angst. Still, the deal between this attorney and his
client stinks to high heaven!
No Right to Complain To Family Court Judge
About Your Wife's Attorney!
The Appellate Court reasoned that "standing to complain" was
a prerequisite to being a successful moving party in a disqualification
motion, and that generally this means there exits some kind of direct
attorney-client relationship between
the movant and the attorney, or at least a confidential/fiduciary relationship between them. The Court
noted that no reported decision directly prohibited disqualification on
motion by a party to a case without such a relationship, but that instead
all reported decisions on the subject of attorney disqualification were
brought by a movant with the requisite relationship to create the movant’s
standing. Even the minority view, the Court observed, that a “personal
stake” must be held by the movant, was not satisfied under the husband’s
theory that the wife would be negatively impacted by the bad deal and
continued representation. Possibly husband didn't care at all about
the home, but instead was an altruist who wanted to protect his weaker-willed
former wife? Methinks not.
Still, the appellate court reasoned that the wife had the right to choose
the counsel of her choice, which should be respected. The Court went on
to reject the notion that the trial court had the inherent power to disqualify
the lawyer based on a violation of the Rules of Professional Conduct,
to the end of controlling the proceeding, or its appearance of justice,
and of preserving the public trust. The Appellate Court reasoned that
the proceeding was already completed as it related to the family home
in question at the time of the request to disqualify, and that the trial
court’s disqualification of the attorney was nothing more than an
improper punishment - as opposed to avoid tainting the litigation about
the property that had already ended, at least between the wife and husband.
It offered as a solution to trial bench officers the right and power to
issue a remedy of making a report to the State Bar for discipline. Which
can be a bummer for the attorneys involved! But these types of complaints
may not get that obnoxious attorney who represents your ex kicked off
the case, and the endeavor could cost you a ton of dough for your hatred
of that obnoxious person because you are so, perhaps understandably, angry
at that person who you perceive is the source of your misery!
Just sayin'. Fight the right battles, neh?
Be careful out there!
Author: Michael C. Peterson, CFLS