Filed 3/16/16
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA

LESLIE A. COSTELLO,                                D068536

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. 37-2014-00043440-
                                                   CU-CO-CTL)
PETER C. BUCKLEY,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Eddie C.

Sturgeon, Judge. Affirmed.

        Robert W. Buckley for Defendant and Appellant.

        John A. Messina, Jr., for Plaintiff and Respondent.

                                    INTRODUCTION

        Leslie A. Costello (Leslie)1 sued her former boyfriend, Peter C. Buckley (Peter),

seeking to collect money she allegedly loaned him during their relationship. Peter

retained his brother, attorney Robert Buckley (Robert), to defend him against Leslie's

lawsuit. Because Robert had previously represented Leslie in another matter, Leslie

moved to disqualify Robert on the grounds that during the time that Robert had served as


1      For ease of identification, we refer to the parties by their first names. We intend
no disrespect.
Leslie's attorney, Robert had learned confidential information about Leslie's relationship

with Peter that could be used against her. We conclude that the trial court properly

granted the motion.

                    FACTUAL AND PROCEDURAL BACKGROUND

         Leslie and Peter have known each other since high school. After reconnecting in

2010, they had a dating relationship which lasted until late 2011. Between October 2010

and November 2011, Leslie loaned Peter $92,000, which Leslie alleges Peter promised to

repay.

         During Leslie and Peter's relationship, Leslie's neighbor sued her seeking to

enforce an easement for access to his water heater, which was located in her garage. In

August 2011, on Peter's recommendation, Leslie retained Robert to represent her in the

easement dispute. Robert actively represented Leslie for almost a year. While acting as

Leslie's attorney, Robert acquired confidential information about Leslie and Peter's

romantic relationship. In late 2011, while Robert was actively litigating the easement

case, Peter and Leslie broke up. Robert offered to withdraw as Leslie's attorney feeling

she may have been uncomfortable with his continued representation. Nevertheless,

Robert continued to represent her until the trial concluded in June 2012. Leslie paid

Robert almost $40,000 for his services.

         Approximately two years after the conclusion of the easement litigation, Leslie

sued for the $92,000. Peter retained Robert to defend against Leslie's lawsuit. In

February 2015, Robert filed an answer to the complaint and propounded discovery to

Leslie. Among other things, a request for admissions asked Leslie to admit that she


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engaged in a romantic relationship with Peter and that during the relationship, she gave

money to him with no expectation of repayment.2

       Leslie promptly requested that Robert withdraw as Peter's attorney because of the

conflict of interest. Robert declined to withdraw as Peter's counsel and requested that the

responses to his request for admissions be submitted on time. Leslie then filed a motion

to disqualify Robert contending that the confidential information he acquired in the

previous representation could be used against her interests. At the hearing on the motion

to disqualify Robert, the trial court acknowledged that the easement dispute and the

collection case were completely unrelated. Nevertheless, the court determined that

during the time that Robert represented Leslie in the easement case, he acquired

confidential information with him about the nature of her romantic relationship with

Peter.3 Further, the court recognized that Robert was basing Peter's defense on the

contention that during that romantic relationship, Leslie gave Peter money with no

expectation of repayment. The court concluded that Robert's potential use of confidential


2      Peter's request for admissions to Leslie included:

       "REQUEST FOR ADMISSION NO. 2: Admit that you referred to the
       money you provided to [Peter] as a 'gift.' "
       "REQUEST FOR ADMISSION NO. 4: Admit that you provided
       [Peter] money based on your personal relationship with him."
       "REQUEST FOR ADMISSION NO. 8: Admit that you were romantically
       involved with [Peter] at the time of all of the transactions that are the subject of
       your complaint."

3     In her declaration filed in support of her motion to disqualify Robert as Peter's
counsel, Leslie stated that during the course of Robert's representation of her "[Robert]
was completely aware and privy to [her] and [Peter's] personal relationship."


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information acquired while representing former client, Leslie, against her interests,

constituted a conflict of interest.

       Because of this conflict of interest between former and current client, the trial

court granted the motion to disqualify. Peter appeals from that order.

                                         DISCUSSION

                                      I. Standard of Review

       "An order granting or denying a disqualification motion is an appealable order

[citation] and is reviewed for abuse of discretion. [Citation.] The trial court's ruling is

presumed correct [citation] and reversal is permissible 'only when there is no reasonable

basis for the trial court's decision.' [Citation.] We accept as correct all of the court's

express or implied findings that are supported by substantial evidence. [Citation.] [¶] 'In

viewing the evidence, we look only to the evidence supporting the prevailing party.

[Citation.] We discard evidence unfavorable to the prevailing party as not having

sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court has

drawn reasonable inferences from the evidence, we have no power to draw different

inferences, even though different inferences may also be reasonable.' " (Kennedy v.

Eldridge (2011) 201 Cal.App.4th 1197, 1203.) We review a lower court's decision under

the abuse of discretion standard. (SpeeDee Oil Change Systems, supra, 20 Cal.4th at

pp. 1143-1144.)

                            II. Rules of attorney disqualification

       "A motion to disqualify counsel brings the client's right to the attorney of his or

her choice into conflict with the need to maintain ethical standards of professional


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responsibility. [Citations.] The paramount concern is the preservation of public trust in

the scrupulous administration of justice and the integrity of the bar. [Citations.]

       "A trial court's authority to disqualify an attorney derives from the court's inherent

power to 'control in the furtherance of justice, the conduct of its ministerial officers, and

of all other persons in any manner connected with a judicial proceeding before it, in every

matter pertaining thereto.' " (Jessen v. Hartford Casualty Ins. Co. (2003) 111

Cal.App.4th 698, 705 (Jessen).)

A. Successive Representation as Grounds for Disqualification

       " 'The obligation to represent the client with undivided fidelity does not end with

the matter in which the lawyer may have been employed. Thenceforth the lawyer must

refrain not only from divulging the client's secrets or confidences, but also from acting

for others in any matters where such secrets or confidences or knowledge of the client's

affairs acquired in the course of the earlier employment can be used to the former client's

disadvantage.' " (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 571.) In short, an

attorney may never "use against his former client knowledge or information acquired by

virtue of the previous relationship." (Id. at p. 574; People ex. rel. Deukmejian v. Brown

(1981) 29 Cal.3d. 150, 155; Kraus v. Davis (1970) 6 Cal.App.3d 484, 490.) The effective

functioning of the fiduciary relationship between the attorney and client depends on the

client's trust and confidence in counsel. " 'The courts will protect clients' legitimate

expectations of loyalty to preserve this essential basis for trust and security in the

attorney-client relationship.' " (Pound v. DeMera DeMera and Cameron (2005) 135

Cal.App.4th 70, 77-78.) It is the duty of an attorney to "maintain inviolate the


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confidence, and at every peril to himself or herself to preserve the secrets of his or her

client." (Bus. & Prof. Code, § 6068, subd. (e)(1).) This obligation continues after the

termination of the attorney-client relationship. (People ex re. Dept. of Corporations v

SpeeDee Oil Systems, Inc. (1999) 20 Cal.4th 1135, 1147.)

       Rule 3-310(E) of the Rules of Professional Conduct of the State Bar of California

provides in pertinent part, "A member shall not, without the informed written consent of

the . . . former client, accept employment adverse to the . . . former client where, by

reason of the representation of the . . . former client, the member has obtained

confidential information material to the employment." Where an attorney's conflict arises

from successive representation of clients with potentially adverse interests, " 'the chief

fiduciary value jeopardized is that of client confidentiality.' " (Flatt v. Superior Court

(1994) 9 Cal.4th 275, 283 (Flatt).) Where such a conflict of interest exists, and the

former client has not consented to the current representation, disqualification follows as a

matter of course. The trial court does not engage in a balancing of equities between the

former and current clients. The rights and interests of the former client will prevail.

(River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1304, 1308.)

       "A former client may seek to disqualify a former attorney from representing an

adverse party by showing the former attorney actually possesses confidential information

adverse to the former client." (H.F. Ahmanson & Co. v. Salomon Bros. (1991) 229

Cal.App.3d 1445, 1452 (Ahmanson).) There is no strict requirement of precise

relationship between the factual and legal issues of the two cases. "[T]he attorney may

acquire confidential information about the client or the client's affairs which may not be


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directly related to the transaction or lawsuit at hand but which the attorney comes to

know in providing representation to the former client with respect to the previous lawsuit

or transaction." (Jessen, supra, 111 Cal.App.4th at. p. 712.)

       In order to disqualify former counsel who could have acquired confidential

information from a former client that could be used in a subsequent case against the

former client, the client need not prove "what is in the mind of the attorney. Nor should

the attorney have to 'engage in a subtle evaluation of the extent to which he acquired

relevant information in the first representation and of his actual use of that knowledge

and information in the subsequent representation. ' " (Global Van Lines v. Superior

Court (1983) 144 Cal.App.3d 483, 489 (Global Van Lines).) Further, in such a case, an

attorney is not only prevented from actually using the confidential information, but also

is prevented from accepting subsequent employment representing an adverse party to the

former client when he may be called upon to use such information. (Kraus v. Davis,

supra, 6 Cal.App.3d at p. 489.)

B. Application of rules of attorney disqualification to the facts of this case

       Peter contends that because there was no substantial relationship between the

easement and the collection cases, there could be no conflict of interest. He further

contends that because Leslie did not need to use any information about her romantic

relationship with Peter to prevail in her collection case, there was no conflict of interest.

We disagree. Leslie presented evidence that Robert actually learned confidential

information about her romantic relationship with Peter while he represented her that

could be used against her. As a result, she did not need to rely upon the presumption


                                              7
based on substantial factual or legal similarities between the two cases to establish that

Robert obtained confidential information from her while representing her in the easement

case. Further, although the confidential information about her romantic relationship with

Peter was not necessary for Leslie to prevail in her collection case, Peter was using or

potentially could use this information to establish his defense that Leslie did not expect

repayment of the monies she advanced to him.

       Peter argues that Leslie cannot utilize the relationship between the easement and

collection cases to establish the conflict of interest because the easement case is unrelated

to the collection case. However, Peter failed to consider that the substantial relationship

presumption is only required when the former client cannot independently establish that

the attorney acquired confidential information in the first case that could be used in the

successive case. (See Global Van Lines, supra, 144 Cal.App.3d at p. 489.)4 As we will

explain, Leslie did not rely upon the substantial relationship presumption to establish that

she shared with Robert confidential information regarding her romantic relationship with



4       Commonly, there is not enough evidence to independently establish that an
attorney or member of a firm actually learned confidential information while representing
a former client that is adverse to the former client in a successive case. In such cases,
courts commonly employ a presumption to establish the conflict of interest by
demonstrating a "substantial relationship" between the law or facts former and current
cases involving the same attorney or law firm. (Global Van Lines, supra, 144
Cal.App.3d at p. 489; Ahmanson, supra, 229 Cal.App.3d at p. 1452.) The former client
need only prove that (1) a substantial relationship exists between the former and present
matters, and (2) the nature of the employment was such that confidential information
material to the case would normally be imparted to the attorney. Once the former client
establishes these foundational facts, the attorney's knowledge of material confidential
information is conclusively presumed and disqualification is mandatory absent the
client's informed written consent. (Flatt, supra, 9 Cal.4th at p. 283.)


                                              8
Peter. She presented evidence to establish that Robert acquired this confidential

information while he represented her. Further, Leslie established that although this

information about their romantic entanglement was not helpful to prove her claim, Peter

could use this information to defeat Leslie's collection claim.

       Robert's disqualification is required if in the course of his previous representation

of Leslie, Robert may have acquired information that could be used against Leslie in his

subsequent representation of another client. (See Kennedy v. Eldridge, supra, 201

Cal.App.4th at pp. 1207-1208.) The evidence in this case demonstrates that both

requirements are met.

       The trial court reasonably concluded based on circumstantial and direct evidence

that while Robert represented Leslie, he acquired confidential information about the

nature of the romantic relationship between his former client Leslie and his current client,

Peter. The circumstantial evidence supports the trial court's conclusion. While Robert

actively represented Leslie for almost a year, the romantic relationship between Peter and

Leslie flourished for months and then ended. During that relationship, and at times while

Robert represented Leslie, Leslie advanced money to Peter. After the relationship ended,

Robert recognized that Leslie might be uncomfortable with his continued representation

of her. He offered to resign as her attorney, but Leslie elected to continue with Robert as

her attorney. Based on this circumstantial evidence, the trial court could reasonably

conclude that during the time that Robert represented Leslie, Robert obtained confidential

information about her romantic relationship with Peter. Leslie also provided direct and

uncontested evidence in her declaration that during Robert's representation, she shared


                                              9
confidential information with him about her relationship with Peter. Peter did not

controvert Leslie's declaration. Under these circumstances, the trial court properly

concluded that while representing Leslie, Robert learned confidential information from

Leslie about her romantic relationship with Peter.

       Leslie, as a former client, need not show that Robert actually used the confidential

information he learned while representing her in the subsequent defense of Peter. Leslie

need only show that Robert could use it in Peter's case. Here, the court correctly

determined that Robert was basing Peter's defense on the nature of his romantic

relationship with Leslie, i.e., Robert was contending that during Leslie's romantic

relationship with Peter, Leslie gave Peter money with no expectation of repayment. In

defending Peter, Robert could potentially use confidential information he gained while

representing former client, Leslie, against her interest.

       In reviewing disqualification motions the trial court's order "is reviewed for abuse

of discretion. [Citation.] The trial court's ruling is presumed correct [citation] and

reversal is permissible 'only when there is no reasonable basis for the trial court's

decision.' [Citation.] [¶] 'Where the trial court has drawn reasonable inferences from the

evidence, we have no power to draw different inferences, even though different

inferences may also be reasonable.' " (Kennedy v. Eldridge, supra, 201 Cal.App.4th at

p. 1203.)

       In summary, based on this evidence, the court did not abuse its discretion in

finding that Robert learned confidential information from Leslie while he represented her

that could be used against her in her case against Peter. Potential use of this confidential


                                              10
information against the interests of a former client constituted a conflict of interest.

Under these circumstances the trial court properly granted the motion to disqualify.5

                                       DISPOSITION

       The order is affirmed. Respondent is entitled to her costs on appeal.


                                                                                PRAGER, J.*

WE CONCUR:


BENKE, Acting P. J.


HUFFMAN, J.




5      In granting the motion to disqualify Robert, the trial court observed that its ruling
actually benefitted Robert. We agree. "Our decision relieves [counsel] from the
impossible burden of partitioning loyalty to his clients." (Knight v. Ferguson (2007) 149
Cal.App.4th 1207, 1216.)

*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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