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 behaviors!
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