Filed 12/15/15 Peters v. O’Brien CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DAVID M. PETERS,                                                    D066759

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. 37-2011-00058811-
                                                                     CU-MC-NC)
SHAWN O'BRIEN et al.,

         Defendants and Appellants.


         APPEAL from an order of the Superior Court of San Diego County, Earl H.

Maas III, Judge. Reversed.

         Ellis Law Group, Mark E. Ellis, Ronald R. Poirier and Steven T. Kelly for

Defendants and Appellants.

         Law Offices of Joseph Adelizzi, Joseph Adelizzi; Peters & Freedman and

David M. Peters for Plaintiff and Respondent.

         This is an attorney disqualification dispute arising in a malicious prosecution

action that plaintiff and respondent, attorney David M. Peters (Peters), filed against his

former clients, defendants and appellants Shawn and Sharon O'Brien (the O'Briens), and
against their attorneys. Those attorneys, defendants and appellants Ronald R. Poirier and

his law firm, the Ellis Law Group, LLP (ELG; together, the Ellis group) represented the

O'Briens as defendants in a previous lawsuit by Peters that sought to collect attorney fees

from the O'Briens, incurred in another underlying action in which Peters provided them

legal services.

       In addition to answering Peters' underlying fees complaint, the O'Briens

unsuccessfully cross-complained against him and his law firm on legal malpractice

grounds. Peters' firm obtained a quantum meruit recovery of attorney fees in the fees

lawsuit. He has individually sued the O'Briens and the Ellis group for malicious

prosecution of the cross-complaint.

       Peters does not raise objections to the Ellis group continuing to defend itself.

However, he successfully moved for an order disqualifying the Ellis group from further

legal representation of the O'Briens in this action. Both the Ellis group and the O'Briens

(sometimes together Appellants) have appealed, contending: (1) during the

disqualification motion proceedings, the trial court abused its discretion by allowing

Peters to introduce new discovery materials in his reply papers, without giving

Appellants an opportunity to respond; (2) no adequate showing was made of any harmful

conflict of interest, because the O'Briens, as clients, have waived any such objections in

writing; (3) the requests to disqualify counsel were not made in a timely manner and the

clients will be prejudiced by the order; (4) the trial court did not appropriately perform

the required balancing analysis or make sufficient findings; (5) Peters lacked standing to

move to disqualify opposing counsel.

                                              2
       We examine the order granting the disqualification motion under the abuse of

discretion standard, which takes into account the legal grounds underlying the ruling.

(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20

Cal.4th 1135, 1143-1144 (SpeeDee Oil Change Systems).) On this record, the order is

unsupported by the applicable legal principles and we reverse.

                                              I

                    FACTUAL AND PROCEDURAL BACKGROUND

              A. Nature of Proceedings; Two Underlying Litigation Matters

       In 2007, Peters and his law firm (Peters & Freedman [or P&F]; not a party here),

reached an oral agreement with the O'Briens to represent them in a court dispute with a

third party, over allegedly defective kitchen cabinets the third party constructed for the

O'Briens' home (the underlying construction defect action). Peters estimated to the

O'Briens that they might recover as much as $42,000. Numerous disputes arose between

attorney and clients not only about the subject of the underlying case, but also about the

nature of compensation due (under a barter agreement) for the legal work.1

       During the dispute, Peters wrote the O'Briens that they could expect a "slam dunk

victory, which we presume will be collectable[, of] between 20K–24K. . . . . [¶] At

present, I am confident we can get $15K now. I do not believe that there is any more


1      Previously, the trial court denied anti-SLAPP motions to strike the complaint,
brought by the O'Briens and the Ellis group. (Code Civ. Proc., § 425.16; all statutory
references are to the Code of Civil Procedure unless noted.) We affirmed the orders
denying the motions. (Peters v. O'Brien (Nov. 21, 2013, D062805 [nonpub. opn.] (our
prior opn.).) This factual statement adopts the background information set forth in our
prior opinion.
                                              3
money available absent proceeding towards trial. I have agreed to reduce our bills and

advanced costs . . . ."

       Because the terms of the oral retainer agreement were disputed, Peters sought to

memorialize the professional relationship in a written contract. The O'Briens resisted,

talking to their long-time friend and personal attorney, defendant Poirier, a partner at the

Ellis group (which was then called Ellis LaVoie et al.). Poirier sought to reconcile the

situation, telling Peters the O'Briens had confidence in him and believed they would

probably be recovering somewhere "between $20,000 and $15,000 [sic]." He asked

Peters to forward to him any prospective settlement conference briefs. Peters' law firm

then decided to withdraw as the O'Briens' counsel of record. Shortly thereafter, the

O'Briens terminated Peters' employment. Mr. O'Brien communicated with the opposition

in the construction defect action and he received $22,500 in settlement proceeds from the

third party.

       The second underlying action began when Peters and his law firm subsequently

sued the O'Briens for attorney fees. Represented by Poirier and the Ellis firm, the

O'Briens responded with their cross-complaint for legal malpractice and related theories

(the underlying fees action; San Diego Super. Ct. No. 37-2008-00059507-CU-BC-NC).

As against Peters individually, the O'Briens sought damages for constructive

fraud/intentional misrepresentation (concerning the potential value of the construction

defect action) and breach of fiduciary duty.

       Eventually, the underlying fees action and its cross-complaint were resolved in a

court trial. In its statement of decision, the trial court found that Peters' firm was entitled

                                               4
to a quantum meruit award of $9,000. The O'Briens recovered nothing on their cross-

complaint. The statement of decision made findings that the O'Briens lacked credibility

as witnesses, and their expert witness on attorney representation matters was not

believable.

                 B. Current Action; Disqualification Motion Proceedings

       Peters filed this malicious prosecution case against the O'Briens and the Ellis

group. He claims they acted without probable cause in bringing the cross-complaint,

because they had received excellent results in the underlying construction defect case,

due to the legal representation they received. He alleged that the O'Briens filed the cross-

complaint to retaliate against him for filing the fees action. Peters sought damages for

income he had foregone from his law firm, measured by the costs of the cross-complaint

litigation. He sought punitive damages due to the allegedly unjustified "scorched earth"

litigation tactics used by the O'Briens and the Ellis group.

       In their answers to the complaint, all Appellants asserted numerous affirmative

defenses, such as the O'Briens' reliance on advice of counsel in filing the underlying

cross-complaint. In their anti-SLAPP motions to strike the complaint, each set of

defendants contended Peters would be unable to establish a prima facie case. We

affirmed the trial court's orders denying the motions in our prior opinion. (See fn. 1,

ante.) Among other issues, this court discussed the claims by the O'Briens that they had

relied on advice of counsel in filing their cross-complaint, so that Peters would have

difficulty in prevailing on his malicious prosecution claim. We said:



                                              5
          "Here, as documented by Poirier in his July 2008 letter to Peters,
          defendants had full knowledge of what the actual facts were
          concerning the value of the O'Briens' case against the [third party
          cabinet company] and the propriety and terms of the oral agreement
          between the O'Briens and P&F before the O'Briens, with the
          assistance of Ellis [group], asserted a constructive fraud/intentional
          misrepresentation cause of action against Peters in the underlying
          action. As such, we conclude on this record that a reasonable jury
          could conclude that the O'Briens did not have an honest, good-faith
          belief that Peters was liable for constructive fraud/intentional
          misrepresentation."

       Once the case was returned to the trial court, Peters' attorney wrote letters to the

Ellis group in February and March 2014, objecting to Poirier's and his law firm's

continued participation on behalf of the O'Briens in the action. Peters asserted that since

he would be inquiring into the O'Briens' advice of counsel defense, the Ellis group might

be asserting attorney-client privilege and its attorneys might be required to testify, and

such a conflict was not waivable. The Ellis group responded that unspecified but

adequate disclosures had been made to the clients, and they would successfully defend

while asserting advice of counsel as a defense.

       Peters filed a motion to disqualify the Ellis group as the O'Briens' counsel. He

relied on California Rules of Professional Conduct, rule 5-210,2 and claimed there was

no indication that an informed consent had been reached to such dual representation, and

that the Ellis group attorneys would undoubtedly be required to testify about what their

clients told them and what advice was given. Peters argued an inherent conflict existed.




2     All references to rules are to the California Rules of Professional Conduct unless
otherwise specified.
                                              6
       The Ellis group filed a joint opposition to the motion, mainly contending that the

O'Briens had provided their informed written consents to continued legal representation

by their codefendants, the Ellis group. It did not provide any copy of the written consents

to dual representation, based on its claims of attorney-client privilege and attorney work

product protected communication, although it offered to provide the documents in camera

if the court so requested.

       Also in opposition to the motion, Appellants argued that no confidential

information would be compromised and therefore Peters, who was not a client of the Ellis

group, lacked standing to bring the motion. They claimed the motion was untimely, since

the case had been pending for some time, and the clients would be financially prejudiced

if they had to retain new counsel. The O'Briens provided declarations to that effect, also

complaining about the quality of the legal representation Peters had provided to them.

       In Attorney Ellis's declaration in opposition to the motion, he stated that he would

be acting as the trial attorney, while Attorney Poirier would be a witness, and this would

solve any conflict problems. He represented that no attorney-client privilege would be

asserted regarding the events surrounding the underlying two cases, as opposed to the

handling of the defense in the current action.

       Peters filed his reply papers, along with objections to the opposing declarations

(not ruled on; not relevant here). Peters contended that both form and special

interrogatory responses from all Appellants, which he newly provided as attachments to a

reply declaration, included their objections to the requests, attorney-client privilege and

attorney work product, both as to attorneys and clients. Peters argued the objections were

                                              7
unjustified, but he failed to acknowledge that many answers had been given. He claimed

that not only Attorney Poirier but Attorney Ellis would probably be deposed in the case,

because Ellis could become a witness about whether he independently corroborated some

of the advice of counsel direction and communications with the clients. Peters

characterized the discovery responses from Appellants (both clients and attorneys) as

"cagey" on the issue of the privileges to be asserted about the advice of counsel defense.

       The Ellis group's discovery responses, attached to the reply papers, reveal that

with regard to Peters' special interrogatories Nos. 15 and 16 (asking it about information

given to it by the clients, relevant to the affirmative defense), it reserved objections only

that the questions were "overbroad, burdensome, vague and ambiguous," but gave some

details in response. However, as to other special interrogatories directed toward it, the

Ellis group objected to No. 13 on grounds that the question violated the attorney-client

privilege (asking whether it had obtained the clients' written consents to dual

representation) and to No. 14 on grounds that it called for a legal conclusion (asking

whether it believed there was a conflict of interest).

       The O'Briens' discovery responses attached to the reply papers show that with

regard to special interrogatories Nos. 13, 14, 15 and 16, about their affirmative defense of

advice of counsel, they reserved objections that the questions violated the attorney-client

privilege and attorney work product doctrine, among others. Subject to and without

waiving the objections, the O'Briens provided responses, respectively, on the facts, the

witnesses, and the documents on which they were relying, as well as the substance of the

opinions and advice provided to them by the Ellis group.

                                              8
       Peters argued in the reply papers that disqualification remained appropriate,

because if the Ellis group were able to argue the legal effect of its own member's

percipient testimony (Poirier's) to the jury, "the jury may not be able to distinguish

between 'argument' and 'factual matters' in order to properly tackle their task in this case."

To defend the timeliness of the motion, Peters pointed out that discovery had been stayed

during the pendency of the anti-SLAPP proceedings and appeal, and claimed he acted as

soon as reasonably possible.

                                  C. Hearing and Ruling

       At argument on the motion, the trial court acknowledged the strength of the rule

that clients are normally entitled to choose their own counsel, even if that counsel might

be hampered by conflicting positions. The court nevertheless concluded that the Ellis

group and the O'Briens were still raising attorney-client and work product privileges as

defenses to discovery, and disqualification was necessary. Counsel for Appellants

objected that it had properly claimed those privileges to some extent in the current action,

giving as an example that Peters had asked the Ellis group (in special interrogatories Nos.

13 and 14) whether it had obtained the clients' written consent to dual representation, and

whether there was arguably conflict in the dual representation in the current action. The

Ellis group had declined to answer those questions, based on attorney-client privilege

(No. 13) and as legally conclusory (No. 14).

       Counsel for Appellants argued that adequate responses to the special

interrogatories, as demonstrated in the reply papers, had been made with respect to the

advice of counsel defense. He did not specify whose responses he was discussing, but

                                               9
represented that Appellants were not asserting any such privileges with respect to the

underlying two actions. He made a broad argument that in the current malicious

prosecution action, Appellants would not be claiming attorney-client privilege or work

product doctrine in pursuing their advice of counsel affirmative defense (about why the

O'Briens prosecuted the underlying cross-complaint).3 Moreover, the clients had waived

any potential conflict problems.4

       The court then examined the text of the form interrogatory responses (not the

special interrogatory responses), and observed that attorney-client privilege and attorney

work product doctrine objections were being asserted. Counsel for Appellants requested

that the trial court give it an opportunity to respond to the new arguments and evidence in

the reply brief, by providing a written surreply brief.

       Counsel for Peters responded that no "partial waiver" of conflict was possible, and

complained that the Ellis group was consistently saying one thing and doing another




3       All the briefs are most unclear as to which answers or objections to the special or
the form interrogatories were given by the Ellis group, or by the O'Briens. The O'Briens
did make and reserve objections of attorney-client privileges and work product on the
advice of counsel defense, but they also gave answers to some extent, to both form and
special interrogatories. Neither counsel acknowledged during the trial court hearing that
the clients had asserted these privileges to preserve them, then answered. The Ellis group
attorney emphasized only that it had dropped its own privilege objections in two out of
four of its responses to special interrogatories (the information provided to them by the
clients concerning the two underlying actions).

4      The Ellis group declined to provide the waivers, and apparently the trial court did
not request to see them. However, it is essentially undisputed that the written conflict
waivers existed and the record supports that assumption.
                                             10
when the opportunity presented itself, such as whether they were going to raise the

attorney-client privilege. The court took the matter under submission.

       The court issued a written order granting the motion to disqualify, "based on

Defendants' assertion of the attorney client privilege in response to discovery requests as

to the advice of counsel defense." The court stated that it had weighed the benefits and

burdens and, under the circumstances, determined that disqualification was appropriate.

The court then observed that because the reply brief had raised "this new issue, an

alternative resolution can be to strike the affirmative defense of advice of counsel." No

such alternative resolution occurred and this appeal followed.

                                              II

                           DISQUALIFICATION OF COUNSEL

                                  A. Applicable Standards

       In reviewing a trial court's discretionary ruling on a disqualification motion, we

accept as correct all express or implied findings that are supported by substantial

evidence. (SpeeDee Oil Change Systems, supra, 20 Cal.4th at pp. 1143-1145.)

"However, the trial court's discretion is limited by the applicable legal principles.

[Citation.] Thus, where there are no material disputed factual issues, the appellate court

reviews the trial court's determination as a question of law. [Citation.] In any event, a

disqualification motion involves concerns that justify careful review of the trial court's

exercise of discretion." (Id. at p. 1144; § 128, subd. (a)(5).)

       When ruling on a disqualification motion, the trial court must indicate on the

record that it has considered all appropriate factors and must give its factual findings in

                                              11
support of the required balancing process. (Smith, Smith & Kring v. Superior Court

(1997) 60 Cal.App.4th 573, 582 (Smith, Smith & Kring); Lyle v. Superior Court (1981)

122 Cal.App.3d 470, 482-483 (Lyle).)

       "The important right to counsel of one's choice must yield to ethical considerations

that affect the fundamental principles of our judicial process." (SpeeDee Oil Change

Systems, supra, 20 Cal.4th at p. 1145.) "Depending on the circumstances, a

disqualification motion may involve such considerations as a client's right to chosen

counsel, an attorney's interest in representing a client, the financial burden on a client to

replace disqualified counsel, and the possibility that tactical abuse underlies the

disqualification motion." (Ibid.) "The paramount concern is the preservation of public

trust in the scrupulous administration of justice and the integrity of the bar." (Jessen v.

Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 705.) An attorney shall refrain

from doing " 'anything which will injuriously affect his former client.' " (People ex rel.

Deukmejian v. Brown (1981) 29 Cal.3d 150, 155; Wutchumna Water Co. v. Bailey (1932)

216 Cal. 564, 573-574.)

       A disqualification motion may be based on an attorney's dual roles as an advocate

and a witness. "The 'advocate-witness rule,' which prohibits an attorney from acting both

as an advocate and a witness in the same proceeding, has long been a tenet of ethics in

the American legal system . . . ." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197,

1208 (Kennedy).) " 'Occasionally a lawyer is called upon to decide in a particular case

whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he

becomes more easily impeachable for interest and thus may be a less effective witness.

                                              12
Conversely, the opposing counsel may be handicapped in challenging the credibility of

the lawyer when the lawyer also appears as an advocate in the case. An advocate who

becomes a witness is in the unseemly and ineffective position of arguing his own

credibility. The roles of an advocate and of a witness are inconsistent; the function of an

advocate is to advance or argue the cause of another, while that of a witness is to state

facts objectively.' " (People v. Donaldson (2001) 93 Cal.App.4th 916, 927-928

(Donaldson).)

       In some cases, " '[c]ombining the roles of advocate and witness can prejudice the

opposing party' and confers on the opposing party 'proper objection where the

combination of roles may prejudice that party's rights in the litigation.' [Citation.] 'A

witness is required to testify on the basis of personal knowledge, while an advocate is

expected to explain and comment on evidence given by others. It may not be clear

whether a statement by an advocate-witness should be taken as proof or as an analysis of

the proof.' " (Donaldson, supra, 93 Cal.App.4th at p. 929.)

                                 B. Exceptional Situations

       There are exceptions to the witness-advocate rule. "[T]he State Bar [of California]

has adopted a rule of professional conduct that prohibits, with few exceptions, a lawyer

from acting as both advocate and witness [citation]." (Donaldson, supra, 93 Cal.App.4th

at p. 927, citing rule 5-210.) Rule 5-210 states:

          "A member shall not act as an advocate before a jury which will hear
          testimony from the member unless:

          "(A) The testimony relates to an uncontested matter; or


                                             13
          "(B) The testimony relates to the nature and value of legal services
          rendered in the case; or

          "(C) The member has the informed, written consent of the
          client. . . ." (Italics added.)

       Even if an advocate-witness has obtained the informed written consent of the

clients, the trial court may exercise its discretion to disqualify counsel where he or she is

a material witness in the case, if the integrity of the judicial process would become

compromised. (Lyle, supra, 122 Cal.App.3d 470, 482; Smith, Smith & Kring, supra, 60

Cal.App.4th 573, 579 [disqualification justified where convincing demonstration of

detriment to the opponent exists, or injury shown to integrity of judicial process];

Reynolds v. Superior Court (1986) 177 Cal.App.3d 1021, 1028.)

                                             III

                  PRELIMINARY CONSIDERATIONS FOR ANALYSIS

                           A. Elements of Affirmative Defense

       To assert the advice of counsel defense, the O'Briens will be required to show they

(1) consulted with a lawyer (i.e., Poirier from the Ellis group) in good faith; (2)

communicated all the relevant facts to their lawyer; (3) were advised by their lawyer that

they had a valid cause of action; and (4) honestly acted upon the lawyer's advice. (See

Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383.) As explained in our prior

opinion, the burden of proving good faith reliance on the advice of counsel falls on the

party asserting the defense. (Ibid.)

       The O'Briens have already admitted that before they sued Peters for constructive

fraud/intentional misrepresentation, they conferred with Poirier of the Ellis group. As

                                             14
explained in our prior opinion, when Poirier wrote to Peters to present their position, he

acknowledged that " '[a]lthough not recommended, oral fee agreements can be an

acceptable form of fee agreement between the attorney and client under certain

circumstances, providing the essential terms are discussed and agreed upon, which

appears to be the case here.' " Poirier told Peters, "the O'Briens then had the 'utmost

confidence' in P&F's continued representation of their interests against the [third party

cabinet company] under the then-applicable oral agreement." He explained to Peters that

the clients were then expecting to recover between $15,000 to $20,000 in the underlying

construction defect action. This background is relevant to the advice of counsel defense,

regarding discovery about Appellants' probable cause to bring that cross-complaint in the

fees litigation, as discussed at the hearing on the motion.

                          B. Standing and Timeliness of Motion

       A moving party "must have standing, that is, an invasion of a legally cognizable

interest, to disqualify an attorney." (Great Lakes Construction, Inc. v. Burman (2010)

186 Cal.App.4th 1347, 1357.) Standing, a question of law, may be determined

independently of the trial court's ruling. (Id. at p. 1354; Kennedy, supra, 201 Cal.App.4th

at p. 1204 ["[N]o California case has held that only a client or former client may bring a

disqualification motion."].)

       The case before us does not involve the frequently advanced ground for

disqualification motions, alleged sharing of confidential information (e.g., an attorney's

simultaneous or successive representation, in which confidentiality breaches may occur).

(See rule 3-310(E) [an attorney "shall not, without the informed written consent of the

                                             15
client or former client, accept employment adverse to the client or former client where,

by reason of the representation of the client or former client, the member has obtained

confidential information material to the employment"; italics added].)

       Rather, we consider the operation of the advocate-witness rule. At least arguably,

a legally cognizable interest for disqualifying an opposing attorney may arise from

generalized policy concerns surrounding the rule, e.g., the integrity of the judicial

process. (Lyle, supra, 122 Cal.App.3d at pp. 482-483.) In this factual context, we may

appropriately assume without deciding that Peters may assert standing to object to

opposing counsel's continued representation of the O'Briens.

       We cannot accept Appellants' argument that Peters failed to make the request to

disqualify counsel in a reasonably timely manner. The anti-SLAPP proceedings,

discovery stay and appeal were pending for some time, and the motion followed soon

afterwards. (§ 425.16, subds. (g), (i).) Peters had already written the Ellis group

attorneys to seek an informal resolution on recusal. We may appropriately address the

validity of Peters' central claim, that if the Ellis group attorneys act in the dual roles of

advocates and witnesses, it may become unclear to a jury whether it should consider their

statements to be evidence, as opposed to analysis and argument on the evidence. (See

Donaldson, supra, 93 Cal.App.4th at p. 929.)




                                               16
                                               IV

                                 APPLICATION OF RULES

                           A. Evaluation of Discovery Responses

       Appellants claim in their opening brief that the trial court should not have

accepted Peters' reply argument "that no response had been given by the O'Briens to the

inquiries about the advice of counsel defense." (Italics added.) Peters, on the other hand,

argues the trial court properly exercised its discretion in concluding that all Appellants

had asserted an "unlimited attorney-client privilege objection" on the affirmative

defenses. (Italics added.) Both positions are inaccurate and too extreme.

       It is significant here that the trial court, at the reply stage of the motion

proceedings, received new facts and argument on the disqualification issue. Generally, a

trial court has discretion whether to accept new evidence in reply papers. (Alliant Ins.

Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1307-1308 (Alliant Ins. Services);

Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) In exercising such

discretion, the court should determine whether an opportunity to respond is warranted,

based on the nature of the new material. (Ibid.)

       The trial court made an implied determination that both the Ellis group and the

O'Briens were still raising attorney-client and work product privileges as defenses to

discovery, to a significant degree that would interfere with the ongoing representation.

(Donaldson, supra, at 93 Cal.App.4th at pp. 927-929.) We examine the basis for that

conclusion as it relates to the O'Briens' alleged reliance on counsel in bringing their

underlying cross-complaint. (Palmer v. Zaklama, supra, 109 Cal.App.4th at p. 1383.)

                                               17
                              1. Form Interrogatory No. 15.1

       The reply papers first presented responses made by all Appellants to Peters' form

interrogatory No. 15.1, inquiring about all of the affirmative defenses. Each of the

Appellants had stated and reserved objections based on attorney-client privilege or work

product doctrine. Each then provided answers to the form interrogatory about the bases

for asserting various defenses, including advice of counsel. The Ellis group supplied

basic information about its consultations with the O'Briens and what the O'Briens said.

       After reserving their privilege objections to answering form interrogatory No.

15.1, the O'Briens went on to disclose what they told the Ellis group about their problems

with Peters. They stated they had discussed Peters' work, telling the Ellis group that

Peters had initially said their construction defects case recovery would be over $40,000,

but he later devalued their claims without explaining any justification. Peters had

represented to them that no fee agreement in writing was required, but then he demanded

one. They complained he failed to obtain a conflicts waiver, and did little work or

investigation on the matter and did not keep them updated on the proceedings, such as

forwarding a settlement offer. Based on those facts and discussions with counsel, the

O'Briens decided to file their cross-complaint. They then listed their known witnesses

and the documents on which they would be relying, i.e., the underlying case files.

                        2. Special Interrogatories, the Ellis group

       In the respective sets of special interrogatories at issue here, the questions asked

were somewhat different as to the two sets of Appellants. This was not made clear at the

hearing. As to the Ellis group, it was asked in No. 13 whether it had obtained the clients'

                                             18
written consent to dual representation. In No. 14, Peters asked about the Ellis group's

beliefs on whether a conflict of interest existed in the dual representation. Objecting, the

Ellis group refused to answer, claiming attorney-client privilege in No. 13 and that No.

14 was legally conclusory in nature.

       Next, special interrogatories Nos. 15 through 17, directed toward the Ellis group,

asked about the information provided to it by the O'Briens (information, witnesses and

documents). The Ellis group objected generally only as "overbroad, burdensome, vague

and ambiguous as phrased" (not claiming privileges). On No. 16, regarding the identity

of witnesses who had knowledge about the advice of counsel defense, the Ellis group

answered by identifying the friend who had referred the O'Briens to Peters, and the

fellow employees at Peters' firm, etc. On No. 17, about what documents were supplied

by the clients, Poirier responded that they received the underlying case files and

depositions from the O'Briens.

                         3. Special Interrogatories, the O'Briens

       With regard to all four of Peters' special interrogatories that inquired of the

O'Briens about their affirmative defense of advice of counsel (Nos. 13, 14, 15, 16), they

reserved objections that the questions violated the attorney-client privilege and attorney

work product doctrine, among others.

       Subject to and without waiving the objections, the O'Briens then provided

responses to special interrogatories Nos. 13, 14, 15 and 16, on the bases for their advice

of counsel defense. These answers mainly duplicated their responses previously given to

form interrogatory No. 15.1, about the bases for asserting the advice of counsel defense.

                                             19
These special interrogatories and the O'Briens' responses were broken down into four

categories, for disclosure of, respectively, (No. 13) the facts known, (No. 14) the

witnesses known, (No. 15) the documents to be used, and (No. 16) "the substance of all

opinions and advice provided to you by counsel which you claim forms the basis of your

third affirmative defense (advice of counsel)."

       The latter answer (to special interrogatory No. 16) provided new information, that

the O'Briens had discussed with the Ellis group "the general logistics/procedures/

standards of civil litigation and burdens of proof at trial; the differences/advantages/

disadvantages between a jury and a bench trial; the possibility of prevailing and/or not

prevailing at trial; and the evidence available at that time."

                        B. Effect of New Material in Reply Papers

       Unfortunately, it was not made clear at the hearing before the trial court that the

Ellis group had only dropped any attorney-client privilege or work product doctrine

objections, as to its own special interrogatories Nos. 15 and 16. It continued to assert

attorney-client privilege as to question No. 13 (the existence of a written conflict waiver),

and it objected to the question about its beliefs about any existing conflict (No. 14). (See

fn. 3, ante [written waivers withheld].)

       Regarding the O'Briens' answers about their crucial advice of counsel defense,

neither counsel clarified during the hearing that the O'Briens had only conditionally

asserted the attorney-client privilege or work product doctrine objections on all four of

the special interrogatories directed toward them (Nos. 13-16). The O'Briens did provide



                                              20
answers after those objections, about what they told the Ellis group about the two

underlying cases.

       In light of this record, the discussion at the hearing about which privileges had

been asserted, and by whom, was truncated and misleading. The trial court initially

indicated it was going to deny the motion, but then explained that the reply papers were

persuasive. All the participants were comparing the proverbial apples and oranges, in

terms of which privileges were being asserted without any conditions, as to which of the

form or special interrogatories, and by whom. Although both the form and the special

interrogatories had been answered with initial sets of objections, substantive answers

were nevertheless given about the information that both the Ellis group and the O'Briens

had about the underlying cross-complaint and fee dispute. The Ellis group only

continued to resist disclosure about the written waivers and its beliefs on conflict in the

current action.

       At the hearing, the trial court was not given and evidently did not obtain the whole

picture about the assertion of the privileges. Its analysis seemed to focus on the form

interrogatories, not the special interrogatories, and its refusal to allow the filing of

surreply papers meant that the confusion at the hearing about the scope of the privileges

being asserted, and by whom, was not fully vetted or taken into account.

       For this reason, we believe it was an abuse of discretion for the trial court to issue

the ruling without giving the Ellis group and the O'Briens an opportunity to respond to

the special interrogatory information Peters had provided in the reply papers. (Alliant

Ins. Services, supra, 159 Cal.App.4th at pp. 1307-1308.) Moreover, the trial court did not

                                               21
solve the problem by including in its ruling that an alternative resolution would be to

strike the affirmative defense of advice of consent. Evidently, that has not yet occurred

by order or stipulation.

                                     C. Showing on Merits

          In exercising discretion on whether an attorney who may testify must be recused,

the trial court must weigh the competing interests of the parties and consider any

potential adverse effects on the integrity of the proceedings. The court " 'should resolve

the close case in favor of the client's right to representation by an attorney of his or her

choice . . . .' " (Smith, Smith & Kring, supra, 60 Cal.App.4th 573, 580.) The factors to be

considered include (1) "the combined effects of the strong interest parties have in

representation by counsel of their choice, and in avoiding the duplicate expense and time-

consuming effort involved in replacing counsel already familiar with the case" (ibid.) and

(2) whether counsel may be "using the motion to disqualify for purely tactical reasons."

(Id. at p. 581.) Overall, the court must preserve the integrity of the judicial process.

(Ibid.)

          A relevant factor in determining the necessity or appropriateness of counsel's

testimony in this context concerns " 'the significance of the matters to which he might

testify, the weight his testimony might have in resolving such matters, and the availability

of other witnesses or documentary evidence by which these matters may be

independently established.' [Citation.] The court should also consider whether it is the

trial attorney or another member of his or her firm who will be the witness." (Smith,

Smith & Kring, supra, 60 Cal.App.4th at p. 581.)

                                               22
       Applying these tests, it is significant that the O'Briens represented in their

declarations that they have waived in writing any conflict objections regarding the dual

representation. (Rule 5-210(C).) " '[T]he fact that the client has consented to the dual

capacity must be given great weight.' " (Smith, Smith & Kring, supra, 60 Cal.App.4th at

p. 580; Reynolds v. Superior Court, supra, 177 Cal.App.3d at p. 1028.). Although any

resolution of the current malicious prosecution allegations must delve into the manner in

which the underlying actions were conducted, the O'Briens were evidently advised of

potential conflicts in that respect and agreed to waive them. They claim it would be

financially disadvantageous to them to obtain new counsel.

       At the hearing, the extent of assertion of the O'Briens' attorney-client privilege or

work product remained unclear. Although Appellants' trial attorney Ellis represented to

the trial court that no such privileges were being asserted on his side regarding the

underlying two actions, he failed to acknowledge that the O'Briens had continued to

assert them to some extent. Peters' attorney only argued for "a hopeless conflict," without

acknowledging that many disclosures had already been made. Incomplete information

was put forward on the status of the attorney-client privilege and work product doctrine

objections. " 'Speculative contentions of conflict of interest cannot justify

disqualification of counsel.' " (Smith, Smith & Kring, supra, 60 Cal.App.4th at p. 582.)

       The trial court was properly concerned with whether Poirier would be acting as the

trial attorney as well as a witness, and it received assurances from the Ellis group that the

trial attorney would be Ellis. (Smith, Smith & Kring, supra, 60 Cal.App.4th at pp. 580-

581.) Even assuming Poirier will be a material defense witness, the trial court's

                                             23
balancing of competing interests did not address whether jury confusion is a strong

possibility due to the witness-advocate situation. (Donaldson, supra, 93 Cal.App.4th at

p. 929.) The trial court did not explain how the integrity of the judicial process would be

offended through such continued arrangements, especially in light of the confusion at the

hearing about the extent of any privileges still being claimed.

       On the factor of whether Peters is pursuing the motion to disqualify for purely

tactical reasons, the record is equivocal. We cannot conclude from the record on the

motion that the O'Briens' continued representation by the Ellis group will threaten Peters

or the O'Briens with any type of significant injury, nor that it will obviously undermine

the integrity of the judicial process. (Kennedy, supra, 201 Cal.App.4th at pp. 1204-1205;

Smith, Smith & Kring, supra, 60 Cal.App.4th at p. 579.) There was a strong showing of

prejudice to the O'Briens if disqualification were required, and the availability of a

different trial attorney within the Ellis group means that the proposed testimony from

Poirier will not necessarily be irreconcilable with appropriate judicial proceedings.

Taken in context, the new information provided in the reply papers or the moving papers,

did not demonstrate there was a significant or convincing risk to the integrity of the

proceedings that would justify the disqualification relief.

       The written ruling stated in a conclusory fashion that the trial court had weighed

the benefits and burdens, under the circumstances, and determined that disqualification

was appropriate. There were no supporting findings of fact about the significance of the

conflicting considerations in the balancing process. (Lyle, supra, 122 Cal.App.3d at pp.

482-483; Smith, Smith & Kring, supra, 60 Cal.App.4th at p. 582.) We cannot conclude

                                             24
on this record that the trial court's ruling represented an appropriate exercise of discretion

within the applicable legal principles. The order granting the motion to disqualify

counsel is reversed.

                                       DISPOSITION

       The order is reversed. Costs on appeal to Appellants.




                                                                    HUFFMAN, Acting P. J.

WE CONCUR:


                        AARON, J.


                       PRAGER, J.*




*       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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