McMillan v. Shadow Ridge at Oak Park Homeowner's Ass'n

Opinion

Over 140 years ago, our Supreme Court stated, “A party to an action may appear in his own proper person or by attorney, but he cannot do

A plaintiff, having twice been represented by counsel and having twice ended that relationship, represents herself. On the sidelines is a lawyer, not of record, who informs counsel for defendant that he will be making limited appearances in deposition and other unspecified matters for plaintiff. Time for trial is fast approaching and the need to arrange for the depositions of plaintiff’s experts requires that counsel meet and confer. Defense counsel contacts plaintiff and confirms that she is representing herself and is counsel of record. A conversation ensues. Within five days of this call, plaintiff, through an attorney who is not of record, moves to disqualify defendant’s counsel alleging that the conversations constituted a breach of ethics.

Denise McMillan appeals from the order of the trial court denying her motion to disqualify counsel for respondent Shadow Ridge at Oak Park Homeowner’s Association (Association). She contends that, although she was counsel of record in propria persona, opposing counsel acted unethically in speaking with her about the case. We affirm.

FACTS AND PROCEDURAL HISTORY

This case is a lawsuit between a condominium owner, McMillan, and the Association. On May 18, 2005, McMillan, through the law offices of Loewenthal, Hillshafer & Rosen (LHR), filed a complaint against the Association, alleging that the Association failed to act in accordance with the terms and conditions of the CC&R’s (covenants, conditions & restrictions) and breached its fiduciary duty to her.

The Association filed an answer on July 8, 2005, through the law offices of Prindle, Decker & Amaro by Nicholas Paulos (Paulos). Ensuing negotiations resulted in an oral agreement to settle. On March 29, 2006, LHR filed a dismissal of the action to avoid the cost of preparing for trial.

McMillan disavowed the settlement. On June 22, 2006, McMillan’s new attorney, C.B. Henrichsen, filed an application to set aside the dismissal. The hearing on the set-aside was continued to July 27, 2006, to allow Henrichsen to formally substitute in as counsel of record for LHR. He did so, and the motion to setaside the dismissal was granted without opposition.

On September 11, 2006, McMillan filed another substitution of attorney removing Henrichsen as her attorney and substituting herself as attorney of record in propria persona.

“ ‘Trial courts in civil cases have the power to order disqualification of counsel when necessary for the furtherance of justice. [Citations.] Exercise of that power requires a cautious balancing of competing interests. The court must 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 ....’” (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116 , 126 [ 230 Cal.Rptr. 461 ].)

McMillan’s motion to disqualify opposing counsel relies on rule 2-100. That rule states: “[A] member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” (Rule 2-100(A).)

The trial court found that no violation of rule 2-100 occurred and we agree. Section 284 provides that a party may change her attorney at any time. Its companion provision, section 285, states: “When an attorney is changed, as provided in [section 284], written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney.”

The purpose of these statutes is to have the record of representation clear so the parties may be certain with whom they are authorized to deal. (People v. Metrim Corp. (1960) 187 Cal.App.2d 289 , 294 [ 9 Cal.Rptr. 584 ].) Litigants are not required to investigate the relationship between opposing attorneys of record and their clients. They and the courts have every right to rely on court records as binding on both litigants and the attorneys appearing of record on their behalf. (People ex rel. Dept. Pub. Wks. v. Hook (1967) 248 Cal.App.2d 618 , 624 [ 56 Cal.Rptr. 683 ].)

At the time that Paulos spoke to McMillan, the record of the court showed McMillan as her own attorney. McMillan had every right to be

Schlaffs oral statement that he was representing McMillan in a limited capacity was insufficient notice to Paulos. A party in a case being litigated is either represented by counsel or she is not. “The attorney of record has the exclusive right to appear in court for his client and neither the party himself nor another attorney should be recognized by the court in the conduct or disposition of the case.” (Epley v. Califro, supra, 49 Cal.2d 849 , 854.)

Such a rule is necessary. “[W]ith regard to the ethical boundaries of an attorney’s conduct, a bright line test is essential. As a practical matter, an attorney must be able to determine beforehand whether particular conduct is permissible; otherwise, an attorney would be uncertain whether the rules had been violated until... he or she is disqualified.” (Nalian Truck Lines, Inc. v. Nakano Warehouse & Transportation Corp. (1992) 6 Cal.App.4th 1256 , 1264 [ 8 Cal.Rptr.2d 467 ].) Attorneys should not be in peril of committing an ethical breach because they should have known that an opposing party may or would be represented at some future time. (Snider v. Superior Court (2003) 113 Cal.App.4th 1187 , 1197-1198 [ 7 Cal.Rptr.3d 119 ].)

The cases cited by McMillan do not support her position. In each of them, an attorney of record, not a party representing herself, had “associated” another attorney to further the interests of the client, the attorney of record, or both.

In Abeles v. State Bar (1973) 9 Cal.3d 603 [ 108 Cal.Rptr. 359 , 510 P.2d 719 ], an attorney was disciplined for communicating with an opposing party even though the record showed that pleadings had been filed on the party’s behalf by a law firm. The court concluded: “In view of the purposes of the rule we believe that ‘a party represented by counsel’ includes a party who has counsel of record whether or not that counsel was in fact authorized to act for the party.” (Id. at p. 609; see also Jackson v. Ingersoll-Rand Co. (1996) 42

Bunn v. Lucas, Pino & Lucas (1959) 172 Cal.App.2d 450 [ 342 P.2d 508 ], overruled on other grounds in Chambers v. Kay (2002) 29 Cal.4th 142 [ 126 Cal.Rptr.2d 536 , 56 P.3d 645 ], involved a fee dispute between a party’s attorney and law firm associated in by the attorney of record for the party. In Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441 [ 98 Cal.Rptr.2d 193 ], the court held that an attorney making a “special appearance” is associated with the party’s attorney of record. In Janik v. Rudy, Exelrod & Zieff (2004) 119 Cal.App.4th 930 [ 14 Cal.Rptr.3d 751 ], the court held that an attorney hired by a client for a limited purpose had a duty to advise the client if there are other related matters that the client is overlooking and that should be pursued to protect the client’s interest. Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318 [ 126 Cal.Rptr.2d 267 ] involved an attorney who represented himself in propria persona in a lawsuit and hired other counsel to assist him in the litigation. In Snider v. Superior Court, supra, 113 Cal.App.4th 1187 , the court held that the trial court improperly disqualified an attorney who had spoken to individual employees of a corporation which was represented by counsel.

In Wells Fargo & Co. v. City etc. of S. F. (1944) 25 Cal.2d 37 [ 152 P.2d 625 ], our Supreme Court held that an attorney hired by counsel of record for a party need not file a formal substitution of attorney under section 285 unless he purports to be the party’s sole representative. In so holding, the court reiterated the rule applicable here: “It is settled that the attorney of record has the exclusive right to appear in court for his client and to control the court proceedings, so that neither the party himself [citations] nor another attorney [citations] can be recognized by the court in the conduct or disposition of the case.” (25 Cal.2d at pp. 42-43.)

McMillan’s argument turns the principle on its head. While a pro se litigant may divide the duties or representation as would any other lawyer, she may not insulate herself from contact by the court or adversary counsel. Rule 2-100 is intended to preserve the attorney-client relationship. (Myerchin v. Family Benefits, Inc. (2008) 162 Cal.App.4th 1526 , 1537 [ 76 Cal.Rptr.3d 816 ]; Jackson v. Ingersoll-Rand Co., supra, 42 Cal.App.4th 1163 , 1167.) The preservation of the attorney-client relationship in such a circumstance is achieved by the pro se declining to speak with the adversary or referring him to associated counsel should she wish to do so.

Even were the communication to be deemed within the ambit of rule 2-100, the result would be the same. At most, the communication that

The judgment is affirmed. Respondent shall recover costs.

Yegan, Acting P. J., and Coffee, J., concurred.

A petition for a rehearing was denied August 25, 2008, and appellant’s petition for review by the Supreme Court was denied November 12, 2008, SI66787.