Father's Father Can't Represent Father Against Mother

The attorney who represented his son in a child support and custody dispute between the son and the mother of his grandson was properly disqualified by the court, said the Third District Court of Appeal in Kennedy v. Eldridge (Dec. 13, 2011, C066697), __ Cal.App.4th __ [2011 DJDAR 17829].

Attorney Richard Eldridge represented his son, Tyler, in a "roiling support and custody dispute involving an infant child."  The child's mother, Kayla Kennedy, filed a petition to establish paternity, custody and support.  Tyler admitted paternity and the litigation then "deteriorated into bitterness and acrimony."  Tyler said the air in Kayla's home was "fresh and thick" with marijuana smoke, and Kayla responded that in Tyler's home, where he lived with his parents, everyone except Richard regularly smoked marijuana.  Then each accused the other of suffering from mental instability.

Kayla moved to disqualify Richard from representing Tyler.  The trial court granted the motion and the court of appeal affirmed, finding that a "plethora of family entanglements, potential misuse of confidential information, a conflict posed by the near-certain prospect that counsel will have to testify, and the preservation of the integrity of the judicial system all coalesce to support the trial court's disqualification order."

It seems that in 2006 Kayla's father had been represented by Richard's wife, who practiced law with Richard, in a child custody dispute.  Kayla's stepmother, who was Richard's wife's secretary, asked Kayla to submit a declaration on behalf of Kayla's father, which she did.  Kayla was never a client of the Eldridge firm.

But Kayla could bring a motion to disqualify Richard even though she was never a client of the firm, said the appellate court.  Although federal courts limit standing to bring disqualification motions to former clients, this is not the case in California.  "[W]here an attorney's continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process," the court may grant a motion to disqualify.

Here there was a significant danger that the Eldridge firm acquired confidential facts about Kayla and her family's situation that could be used to Tyler's advantage.  Because of the close relationship between Kayla and her father, the court concluded that they should be treated as a "single unity" for purposes of determining a conflict and it was presumed that confidential information was obtained in the prior case that could be used to gain an unfair advantage over Kayla.

Truth vs. Advocacy

Second, Richard was prohibited from acting both as an advocate and a witness in the same proceeding.  The court cited with approval Rule 3.7 of the Model Rules of Professional Conduct of the American Bar Association, which states that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be witness unless the testimony relates to either an uncontested issue or the nature and value of legal services in the case, or disqualification would work a substantial hardship on the client.  Recognizing that California's version of the ABA rule is limited to jury trials, the court pointed out that rule 1-100 states that the prohibitions are not exclusive and permits consideration of other ethical rules.  "Most of the difficulties inherent in an attorney's taking on the role of both advocate and witness are present regardless of whether the attorney's testimony will be given in front of a jury or a judge," said the court.  A witness' responsibility is to tell the truth.  An attorney's responsibility is to obtain the best result for his or her client.  "These duties may not necessarily be coextensive," observed the court, and here the "likelihood of conflict is indisputable."

Finally, the court found that the multiple and interconnected family entanglements resulted in a strong appearance of impropriety and undermined the integrity of the judicial system.  "[F]amily law matters deserve particular attention when it comes to maintaining high standards in ethics," said the court.  Richard was in a position where his family loyalties were in conflict and his responsibilities to his grandson were compromised.  The court "face[d] the prospect of playing host to an awkward spectacle, where the lines between attorneys, relatives and litigants become blurred and confused," and it did not abuse its discretion in granting the motion.