Filed 7/31/13
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                       DIVISION SEVEN


FIDUCIARY TRUST INTERNATIONAL                     No. B247441
OF CALIFORNIA,
                                                  (Los Angeles County
        Petitioner,                               (Super. Ct. No. SP001682)

        v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

        Respondent;

MICHAEL J. BROWN et al., as Trustees,
etc.

        Real Parties in Interest.



        ORIGINAL PROCEEDING. Petition for writ of mandate, Joseph S. Biderman,
Judge. Writ granted.
        Holland & Knight, Bruce S. Ross, Vivian L. Thoreen and Roger B. Coven for
Petitioner.
        No appearance for Respondent.
        Sandler and Rosen, Charles L. Birke and Adam W. Guerrero for Real Parties in
Interest.


                                    ______________________
                                     INTRODUCTION

       In 1992, Raymond Sandler, then an attorney at Sandler & Rosen, drafted wills for
Willet Brown and his wife Betty Brown. Willet‟s will established a marital trust that was
expected to generate several million dollars in annual income. The will named Betty as
the marital trust‟s income beneficiary for life; upon her death, the principal of the trust
was to be transferred into an Exemption Equivalent Trust that would benefit each of
Willet‟s four children. Betty‟s will, in turn, left a large majority of her estate to the
Exemption Equivalent Trust. After Willet died, Betty revoked the will that Sandler had
prepared and drafted a new instrument transferring the large majority of her assets to a
trust that was to benefit her daughter.
       Following Betty‟s death in 2011, a dispute arose between her personal
representative–petitioner Fiduciary Trust International of California–and the marital trust
trustees regarding whether the terms of Willet‟s will required the trust to pay
approximately $27 million in estate and inheritance taxes that were due on Betty‟s assets.
Fiduciary Trust filed a motion to disqualify Sandler & Rosen, arguing that the firm was
barred from representing the trustees based on Sandler‟s prior representation of Betty.
The trial court denied the motion and Fiduciary now petitions this court for a writ of
mandate compelling the court to vacate its ruling and enter a new order disqualifying
Sandler & Rosen. We issued an order to show cause and we now grant the petition for
writ of mandate.


                   FACTUAL AND PROCEDURAL BACKGROUND

       A. The Browns’ Estate Planning Documents
       Raymond Sandler, an attorney at Sandler & Rosen LLP, served as Willet H.
Brown‟s personal, family and business attorney. In 1992, Sandler drafted a will for
Willet, whose estate was then estimated to be worth $200 million, and a separate will for
Willet‟s wife of 45 years, Betty Brown. At the time Sandler drafted the wills, Willet had
four adult children: Kim Blake, who was his only child with Betty, and three children


                                               2
from a prior marriage: Michael J. Brown, Patricia Louise Brown and Peter Ransom
Brown.
       Willet‟s will bequeathed his personal effects and real property to Betty. The
remainder of his estate was to be divided between two trusts: the “Exemption Equivalent
Trust” and the “Marital Trust.” The Exemption Equivalent Trust was to be initially
funded with “a pecuniary amount equal to the maximum sum” of various gift and estate
tax exemptions then in effect, which totaled approximately $600,000. The trust was to be
divided into equal shares among Willet‟s four children. Each child was to receive the
income from their respective share of the trust for life; upon their death, the principal of
each child‟s share was to go to his or her designated appointee.
       The will placed all of Willet‟s remaining assets into the Marital Trust and named
Betty as the income beneficiary of the trust for her life. The will directed that, upon
Betty‟s death, the trustees of the Marital Trust were to pay all “legally enforceable claims
against her or her estate, expenses of administration and any estate or inheritance taxes
payable by reason of her death, including interest and penalties, from either income or
principal of the Marital Trust . . . unless other adequate provisions shall have been made
therefore.” After such payments were made, the trustees were to distribute the remaining
principal of the Martial Trust into the Exemption Equivalent Trust.
       The separate will that Sandler drafted for Betty bequeathed various personal and
real property to her daughter Kim. The residue of Betty‟s estate was to go to the
“„Trustees of the Exemption Equivalent Trust created under the Will of . . . [Willet
Brown].”
       In addition to the two wills, Sandler prepared a memo for Willet summarizing the
terms of the estate planning documents. The memo stated that Sandler expected Betty to
receive approximately $3 million in annual income from the Marital Trust, which would
enable her to “accumulate a sizeable amount during her lifetime.” The memo further
explained that, under the terms of Betty‟s will, this accrued income “would go into the
Exemption Equivalent Trust which . . . is for the benefit of all four of your children.”
The memo also indicated that while there would be “no tax to pay under your present

                                              3
Will,” substantial federal estate and state inheritance taxes would become due upon
Betty‟s death, which would be paid from the Marital Trust. After the payment of those
taxes and any other debts, the remaining principal would be transferred to the Exemption
Equivalent Trust and “divided into equal shares for each of your children . . .”
       Betty signed her will in July of 1992 and Willet signed his will two months later.
Willet died in October of 1993. Shortly thereafter, the Marital Trust and Equivalent
Exemption Trust were established pursuant to an ex parte order appointing testamentary
trustees.
       After Willet died, Betty established the “Betty R. Brown Trust,” which she
amended on several occasions. The operative version of the trust acted to rescind Betty‟s
1992 will and directed that, upon her death, a significant majority of the trust assets
(which consisted of Betty‟s personal effects, residences and income she had accumulated
from the Marital Trust) were to be distributed to Kim outright. The Betty Brown Trust
also included language indicating that the trustee should obtain all estate and inheritances
taxes due on her estate from the trustees of the Marital Trust: “The terms of the Marital
Trust established under the Will of [Betty‟s] late husband, [Willet Brown], . . . provide
that upon [Betty‟s] death, the trustees of the Marital Trust shall pay . . . any estate or
inheritance taxes payable by reason of [Betty‟s] death, . . . unless other adequate
provisions shall have been made therefore. [Betty] has made no provision for the
payment of any such claims expenses or taxes . . . To the extent that Trustee hereunder
shall be required to pay any such claims or expenses, or any such taxes payable by reason
of [Betty‟s] death, [Betty] directs the trustee to recover from the Marital Trust all such
claims and expenses and all such taxes . . .”
       Betty died on December 26, 2011. Fiduciary Trust International of California
(Fiduciary) was appointed “administrator with will annexed” of Betty‟s estate and letters
of administration were issued on November 6, 2012.




                                                4
       B. Dispute Regarding Payment of Taxes Owed on Assets Held in the Betty
          Brown Trust

       As a result of Betty‟s death, approximately $100 million in estate and inheritance
taxes became due on the property in the Marital Trust and the Betty Brown Trust.
Although the trustees of the Marital Trust agreed to pay the portion of the taxes
attributable to property held within the Marital Trust (approximately $74 million), they
refused to pay the portion of taxes attributable to assets within the Betty Brown Trust.
       In August of 2012, Fiduciary filed a petition for an order confirming its right “to
seek payment from the Trustees of the Marital Trust . . . [for] any and all claims,
expenses or taxes arising from Betty‟s death, including the total federal estate tax liability
attributable to the death of Betty Brown . . . of which the estimated remaining amount is
approximately $27,000,000.” Fiduciary argued that it was entitled to this payment
because Willet‟s will specifically directed the trustees of the Marital Trust to pay “any
estate or inheritance taxes payable by reason of [Betty‟s] death . . . unless other adequate
provision have been made therefore.” Fiduciary also argued that the Betty Brown Trust
included specific language clarifying that Betty had made no other provisions for the
payment of estate and inheritances taxes.
       The trustees of the Marital Trust, who were represented by Sandler & Rosen, filed
a cross petition seeking an order that it was only obligated to pay “estate and inheritances
taxes, claims, and expenses attributable to property held by the Marital Trust” and had no
further obligation to pay “taxes, claims, or expenses attributable to assets owned by the
Betty Brown Trust.” The trustees alleged that, during the 18 years between Willet and
Betty‟s deaths, Betty had “accumulated more than $80 million in assets from the . . .
income she received from the Marital Trust.” The petition asserted that, under the terms
of Betty‟s 1992 will, those assets would have been transferred to the Equivalent
Exemption Trust upon her death, thereby benefitting each of Willet‟s four children.
Following Willet‟s death, however, Betty had elected to revoke that will and established
the Betty Brown Trust, which benefitted only Kim.



                                              5
       The Marital Trust trustees argued that, in light of the changes Betty made to her
estate plan, it would be unfair to require the Marital Trust to pay the $27 million in estate
taxes owed on the assets in the Betty Brown Trust: “[I]f the Betty Brown Trust prevails
on its claim against the Marital Trust, then each of Willet‟s other three children, Patricia,
Michael and Peter will pay approximately $6,750,000 in death taxes on property they will
never receive. Each of their Exemption Equivalent Trusts will be reduced by that amount
if the Marital Trust pays the $27,000,000 death taxes for the Betty R Brown Trust. . .
Such a result was never intended, contemplated or understood by Willet when he signed
his Will and when he died. At the time of his death, he had knowledge of Betty‟s will
which bequeathed all her property, except personal property and the residences, to the
Exemption Equivalent Trusts established by his Will for the benefit of his four children
equally.”
       The trustees articulated three reasons why the Marital Trust should not be required
to pay the taxes attributable to the Betty Brown Trust. First, they asserted payment of
such taxes was “not permitted by Probate Code section 20110 and 20111,” which require
estate taxes to be equitably prorated in proportion to the value of the property received by
each person interested in the estate unless there exists a clear and unambiguous direction
to the contrary.1 The trustees contended that the language in Willet‟s will requiring the
Marital Trust to pay any taxes that became due upon Betty‟s death was not sufficiently
clear in light of events that occurred after Willet‟s death.




1      Section 20110 states, in relevant part: “(a) Except as provided in subdivision (b),
any estate tax shall be equitably prorated among the persons interested in the estate in the
manner prescribed in this article. (b) This section does not apply: (1) To the extent the
decedent in a written inter vivos or testamentary instrument disposing of property
specifically directs that the property be applied to the satisfaction of an estate tax or that
an estate tax be prorated to the property in the manner provided in the instrument. . .
       Section 20111 states: “The proration required by this article shall be made in the
proportion that the value of the property received by each person interested in the estate
bears to the total value of all property received by all persons interested in the estate,
subject to the provisions of this article.”

                                               6
       Second, the trustees argued that Betty‟s decision to redirect the residuary of her
estate from the Exemption Equivalent Trust to Kim constituted “other adequate
provisions” for the payment of inheritance and estate taxes: “Betty Brown‟s revised
estate plan represents a tremendous change of circumstances from that existing when
Willet Brown signed his Will. Approximately $80,000,000 in Betty Browns‟ Residuary
Estate are „adequate provisions‟ for payment of the claims, expense, and death taxes
attributable to the assets in the Betty R. Brown Trust in which the Marital Trust now has
no interest.”
       Finally, the trustees argued that the court had equitable and statutory authority “to
alter or modify the distributive provisions of [Willet‟s will] to accomplish [Willet‟s]
actual intent at the time the instrument was executed.” The trustees contended that the
wills Sandler had drafted for Willet and Betty made clear that Willet only intended the
Marital Trust to pay taxes on property that was to be transferred to the Equivalent
Exemption Trust. Thus, according to the trustees, the court had authority to modify
Willet‟s will to clarify that the trustees were only required to pay taxes applicable to
assets within the Marital Trust.

       C. Fiduciary’s Motion to Disqualify Sandler & Rosen
           1. Summary of Fiduciary’s motion to disqualify
        In December of 2012, Fiduciary filed a motion to disqualify Sandler & Rosen
from representing the Marital Trust based on the firm‟s prior representation of Betty in
1992. Fiduciary contended that the subject of Sandler & Rosen‟s current representation
was substantially related to the services it had provided to Betty in 1992, which consisted
of drafting her will and advising her about her and Willet‟s estate plan. Fiduciary
asserted that because Sandler & Rosen was attempting to undertake a representation
adverse to a former client in a substantially related matter, it was automatically
disqualified.
       Fiduciary‟s attorney, Vivian Thoreen of Holland & Knight, filed a declaration in
support of the motion explaining that she discovered Raymond Sandler had previously


                                              7
represented Betty after reviewing a declaration that Charles Birke, an attorney at Sandler
& Rosen, had filed in a related proceeding in October of 2012. Birke‟s declaration
included the following statement: “Mr. Sandler was the personal attorney of Willet H
Brown. Over the years before Mr. Brown‟s death in 1993, Mr. Sandler advised
Mr. Brown on estate planning matters, including drafting wills from time to time for
Mr. Brown. He also drafted a will for Mr. Brown‟s wife, Betty Brown and
communicated with her concerning her will. [¶] . . . [T]he files maintained by Mr. Sandler
. . . contained written communications with Willet H. Brown and Betty Brown, regarding
their estate plans, drafts, and final wills signed by Willet H. Brown and Betty Brown.”
Sandler & Rosen had also produced to Holland & Knight an executed copy of Betty‟s
1992 will and a letter Sandler had written to Betty stating: “a draft of the Will that I have
prepared in accord with our recent meeting [is enclosed].”
       The trustees opposed the motion to disqualify, arguing that the rule precluding an
attorney from undertaking a representation adverse to a former client was predicated on
the duty of confidentiality. The trustees further asserted that because Sandler & Rosen
had jointly represented Willet and Betty Brown in the 1992 estate planning matters, it
owed no duty of confidentiality on any matter of dispute between them relating to that
prior representation. In support of its position, the trustees cited Evidence Code section
952, which provides an exception to the attorney-client privilege for communications
made in the course of a joint representation in proceedings between the joint clients.
       The trustees also asserted that although California courts generally utilize the
“substantial relationship test” to assess disqualification motions predicated on successive
adverse representations, the test did not apply in the context of joint representations.
According to the trustees, under such circumstances, the party moving to disqualify must
establish that it would be “unfairly disadvantaged by use of any confidential
information,” thereby undermining “the integrity of the judicial process. . .”
       Finally, the trustees argued that Betty had waived her right to disqualify Sandler &
Rosen by failing to object to the firm‟s representation of the trustees in several prior
proceedings between the parties. A declaration from Charles Birke stated that Betty

                                              8
Brown, acting through independent counsel, had litigated multiple prior disputes against
the Marital Trust and had never sought Sadler & Rosen‟s disqualification in any of those
matters. According to the trustees, “Betty‟s failure to move to disqualify [Sandler &
Rosen] for more than 16 years, despite several adversarial proceedings, proves that Betty
consented to [Sandler & Rosen‟s] continued representation of the Trustees of the Marital
Trust.” The trustees also argued that, in the current action, Fiduciary‟s attorney, Holland
& Knight, had learned of Sandler‟s prior representation of Betty more than two months
before moving for disqualification.

          2. Hearing on the motion to disqualify
       At the hearing on the motion to disqualify, the trial court stated that, under the
substantial relationship test, it was required to determine “whether the evidence . . . in the
[moving] papers support[s] a rational conclusion that information material to the . . .
former representation . . . would be material to the current representation.” The court
explained that the primary issue in the current dispute was whether Betty had made any
“other adequate provisions” for the payment of her estate and inheritance taxes within the
meaning of Willet‟s will. The court further explained that, in its view, there was little
likelihood that any confidential communication between Betty and Sandler would be
relevant to that issue: “[T]he trouble that I‟m having here is that either Betty Brown did
or did not make other adequate provisions. I mean, that‟s going to be the issue at trial. Is
that necessarily going to be determined, or can it be determined without the resort to
confidential communications being revealed between Betsy Brown and Mr. Sandler and
Mr. Sandler‟s office back in 1992.”
       The court also expressed concern that while Fiduciary had provided documents
showing Betsy and Sandler had shared communications regarding the 1992 estate
planning matters, it had not identified any evidence suggesting that they had discussed
the “other adequate provisions” clause: “[W]ithout [evidence] showing [Betty and
Sandler discussed the “other adequate provisions” clause], I don‟t know that I can
conclude that there‟s even any possibility of confidential communications. . . . I don‟t


                                              9
know that we‟re at the point, factually, that I can conclude there‟s any possibility of
confidential information necessarily being involved that should mandate the
disqualification of Sandler & Rosen.”
       In response, Fiduciary argued that it was irrelevant whether Betty and Sandler had
actually exchanged confidential communications related to the current proceeding; the
proper inquiry was only whether a substantial relationship existed between Sandler &
Rosen‟s former representation of Betty and its current, adverse representation of the
Marital Trust. Fiduciary further asserted that Sandler could have easily avoided a
disqualifying conflict by obtaining Betty‟s consent to their subsequent representation of
Willet in the event a dispute arose between her and Willet regarding their estate plan.
Fiduciary‟s attorney explained that “[a]fter that representation is over–which in this case
occurred in 1992–Sandler & Rosen, not having gotten informed written consent so far as
we know, cannot represent the husband versus the wife or vice versa in any matter having
to do with the estate plan.”
       The court, however, reiterated its view that any communications that occurred in
1992 were unlikely to be used in the current dispute: “Is there really anything that
transpired during the representation back in 1992 that Sandler & Rosen could ever
possibly come in . . . because we have a document that speaks for itself. . . . And what
we‟re going to be looking at is not what happened in ‟92, because there‟s nothing else
there but the instruments. We‟re going to be looking over the many years past did Betty
Brown do anything to address the payment of estate taxes. I don‟t see how anything that
transpired with Sandler & Rosen could in any way be entertained by the court or
introduced in court . . .” The court also noted that Sandler, Betty and Willet had all died
during the 20 years that had passed since the prior representation, thereby reducing the
likelihood that Sandler & Rosen was in possession of any confidential communications
related to the current dispute: “[T]hat‟s the interesting . . . . part about this case, that
there is no one alive, there is nothing in writing, there is no possibility, and yet you‟re
seeking to disqualify . . ..”



                                               10
       The trustees, on the other hand, did not address whether Fiduciary had shown that
a substantial relationship existed between the current and antecedent representations.
Instead, it argued–as it had in its briefs–that disqualification was unnecessary because
“there was never any confidentiality in this case. This was . . . a joint estate plan, joint
client. The evidence code . . . is absolutely clear that there is no confidentiality between
joint clients in a dispute between the joint clients.” The trustees further asserted that,
under Zador Corporation v. Kwan (1995) 31 Cal.App.4th 1285 (Zador), “the „substantial
relationship‟ test doesn‟t even apply in the joint case. Now Zador went on to say in that
case there was . . . informed consent. But your honor, in this case . . . there was no rule in
effect about informed consent on conflicts when Sandler did this work. The rule that
[Fiduciary is] citing became effective September the 14th, 1992.”
       At the conclusion of the hearing, the court took the matter under submission. On
February 5, 2013, it denied the motion. Fiduciary subsequently filed the instant writ
petition seeking relief from the court‟s ruling. We issued an order to show cause why the
trial court should not be compelled to vacate its ruling and issue a new order granting the
motion to disqualify.2


                                       DISCUSSION

       A. Standard of Review
       “„Generally, a trial court‟s decision on a disqualification motion is reviewed for
abuse of discretion. [Citations.]‟ [Citation.] As to disputed factual issues, a reviewing


2         A trial court‟s ruling on a disqualification motion is a proper subject for a petition
for writ of mandate: “„If the trial court denies a motion to disqualify counsel, the
unsuccessful moving party can seek immediate appellate review, either by petitioning the
reviewing court for a writ of mandamus, asserting that the remedy by appeal is not
adequate . . . or by filing a notice of appeal from the order denying disqualification. . . .
[¶] . . . A petition for extraordinary relief on the merits accompanied by a request for an
immediate stay is preferable, because generally extraordinary writs are determined more
speedily than appeals. The specter of disqualification of counsel should not be allowed to
hover over the proceedings for an extended period of time for an appeal.‟ [Citation.]”
(Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1263-1264.)

                                              11
court‟s role is simply to determine whether substantial evidence supports the trial court‟s
findings of fact; „the reviewing court should not substitute its judgment for . . . express or
implied [factual] findings [that are] supported by substantial evidence. [Citations.]‟
[Citation.] As to the trial court‟s conclusions of law, however, review is de novo; a
disposition that rests on an error of law constitutes an abuse of discretion. [Citations.]
The trial court‟s „application of the law to the facts is reversible only if arbitrary and
capricious.‟ [Citation.]” (In re Charlisse C. (2008) 45 Cal.4th 145, 159 (Charlisse C.).)

       B. The Rules Governing Disqualification of an Attorney Proceeding Against a
          Former Client

       A motion to disqualify counsel places a litigant‟s right to select his or her attorney
into conflict with the duty to maintain ethical standards of professional responsibility.
(Jessen v. Hartford Casualty Insurance Company (2003) 111 Cal.App.4th 698, 705
(Jessen).) In determining whether a conflict of interest requires disqualification,
however, the trial must look beyond “the interests of the parties.” (People ex rel. Dept. of
Corporations v. SpeeDee Oil Change Systems (1999) 20 Cal.4th 1135, 1145 (SpeeDee
Oil).) “The paramount concern must be to preserve public trust in the scrupulous
administration of justice and the integrity of the bar. The important right to counsel of
one‟s choice must yield to ethical considerations that affect the fundamental principles of
our judicial process. [Citations.]” (Ibid.)
       “Protecting the confidentiality of communications between attorney and client is
fundamental to our legal system. . . . [It is] a basic obligation of every attorney . . . [t]o
maintain inviolate the confidence, and at every peril to himself or herself to preserve the
secrets, of his or her client.‟ (Bus. & Prof. Code, § 6068, subd. (e).)” (SpeeDee Oil,
supra, 20 Cal.4th at p. 1146.) To protect the attorney-client relationship‟s confidentiality,
the Rules of Professional Conduct provide that an attorney “shall not, without the
informed written consent of the client or former client, accept employment adverse to the
client or former client where, by reason of the representation of the client or former




                                               12
client, the member has obtained confidential information material to the employment.”
(Rules Prof. Conduct, rule 3–310(E).)
       A disqualifying conflict of interest generally arises under Rule 3–310(E) in two
situations: “(1) in cases of successive representation, where an attorney seeks to
represent a client with interests that are potentially adverse to a former client of the
attorney; and (2) in cases of simultaneous representation, where an attorney seeks to
represent in a single action multiple parties with potentially adverse interests.” (In re
Charlisse C., 45 Cal.4th at p. 159.) Where, as here, the potential conflict “is one that
arises from the successive representation of clients with potentially adverse interests, . . .
the governing test requires that the client demonstrate a „substantial relationship‟ between
the subjects of the antecedent and current representations.” (Flatt v. Superior Court
(1994) 9 Cal.4th 275, 283 (Flatt.)
       Our courts have recognized two different versions of this test, depending on
whether the attorney‟s representation of the former client was “direct and personal” or
“peripheral [and] attenuated.” (Jessen, supra, 111 Cal.App.4th at pp. 710-711; see also
City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847
(Cobra).) If the representation was “direct–that is, where the lawyer was personally
involved in providing legal advice and services to the former client–” (Jessen, supra, 11
Cal.App.4th at p. 709) the only question is whether there is a substantial relationship
between the subject of the prior representation and the subject of the current
representation. If the answer is yes, “access to confidential information by the attorney in
the course of the first representation (relevant, by definition, to the second representation)
is presumed and disqualification of the attorney‟s representation of the second client is
mandatory[.]” [Citations.]” (Flatt, supra, 9 Cal.4th at p. 283; see also Cobra, supra, 38
Cal.4th at p. 847; Jessen, supra, 111 Cal.App.4th at pp. 706, 709-710.)
       A “modified version of the substantial relationship test [applies] in situations
where the former attorney-client relationship was peripheral or attenuated, rather than
direct and personal.” (Med–Trans Corp., Inc. v. City of California City (2007) 156
Cal.App.4th 655, 664-666 (Med-Trans).) In such cases, the court will not presume the

                                              13
attorney received confidential information absent a showing “the attorney was in a
position vis-à-vis the client to likely have acquired confidential information material to
the current representation.” (Jessen, supra, 111 Cal.App.4th at p. 710; see also Cobra
Solutions, supra, at 38 Cal.4th at p. 847.)

       C. The Trial Court Erred in Denying the Disqualification Motion
              1. The parties do not dispute that a substantial relationship exists between
                 the prior and current representations

       The trustees do not dispute that Sandler & Rosen‟s prior representation of Betty
was direct in nature and substantially related to the current tax dispute. These apparent
concessions are well-taken. There is no question that Sandler‟s representation of Betty
was “direct” rather than “peripheral.” The undisputed evidence shows that, in 1992,
Sandler personally provided estate planning legal services to Betty and Willet.3
       It is equally clear that there is a substantial relationship between the subject of
Sandler & Rosen‟s representation of Betty and the subject of its representation of the
Marital Trust. “„[A] “substantial relationship” exists whenever the “subjects” of the prior
and the current representations are linked in some rational manner. [Citation.]‟
[Citation.]” (Knight v. Ferguson (2007) 149 Cal.App.4th 1207, 1213.) “Thus, successive
representations will be „substantially related‟ when the evidence before the trial court
supports a rational conclusion that information material to the evaluation, prosecution,
settlement or accomplishment of the former representation given its factual and legal
issues is also material to the evaluation, prosecution, settlement or accomplishment of the
current representation given its factual and legal issues.” (Jessen, supra, 111 Cal.App.4th
at p. 712.)




3       The parties also do not dispute that any conflict from this direct relationship is
properly imputed to Sandler & Rosen as a whole. (See Cobra, supra, 38 Cal.4th at
pp. 847-848 [“Normally, an attorney‟s conflict is imputed to the law firm as a whole on
the rationale „that attorneys, working together and practicing law in a professional
association, share each other‟s, and their clients‟, confidential information.‟ [Citation.]”].)

                                              14
       The evidence produced at the trial court proceedings demonstrates that Sandler
initially represented both Betty and Willet regarding their estate plans. In that role,
Sandler drafted Willet and Betty‟s wills and had communications with them regarding
these instruments. It is rational to conclude that, during the course of the representation,
Sandler would have explained to Betty the meaning and effect of the significant terms of
the wills, including the clause directing that all taxes due upon her death would be paid
from the Marital Trust unless “other adequate provisions shall have been made
therefore.” Indeed, it is rational to assume Betty would have had a particular interest in
the meaning of this provision given the significant estate and inheritance taxes that were
expected upon her death. The particular meaning and intent of that clause, in turn, is at
the very heart of the current dispute. Thus, the subjects of Sandler & Rosen‟s former
representation of Betty and its current representation of the Marital Trust are not only
substantially related, but involve the same subject matter: the intended meaning of the
provision delineating the payment of estate taxes. While Sandler & Rosen initially
represented both Betty and Willet, they have now chosen to continue to represent only
Willet, through the Marital Trust, taking a position adverse to Betty.
       The trial court‟s minute order does not explain why it denied Fiduciary‟s motion
for disqualification. During the motion hearing, however, the court repeatedly stated that,
in its view, there was little likelihood that Sandler and Betty had actually shared any
information that would be relevant to the current dispute or that Sandler had passed any
such information onto the surviving members of his firm. The court also noted that
Fiduciary had not provided any evidence that Sandler and Betty discussed the “other
adequate provisions” clause. Based on these comments–which are the only insights we
have into the court‟s reasoning–it appears that, rather than merely assessing whether the
prior and current representations were substantially related, the court inquired as to
whether Sandler had actually obtained, or was otherwise in a position to obtain, any
confidential information that other members of his firm might be able to use in the
current proceeding.



                                             15
       Arguably, such an inquiry might have been proper if Sandler‟s attorney-client
relationship with Betty had been peripheral or attenuated. The case law makes clear
however, that such an inquiry is not permitted where, as here, the attorney-client
relationship was direct: “[W]here the lawyer was personally involved in providing legal
advice and services to the former client . . . it must be presumed that confidential
information has passed to the attorney and there cannot be any delving into the specifics
of the communications between the attorney and the former client in an effort to show
that the attorney did or did not receive confidential information during the course of that
relationship.” (Jessen, supra, 111 Cal.App.4th at p. 709; see also Brand v. 20th Century
Ins. Co./21st Century Ins. Co. (2004) 124 Cal.App.4th 594, 607 [disqualification required
despite a “12 year passage between the two engagements” and the absence of any
evidence demonstrating “confidential information [had actually been] obtained”].)

              2. The trustees have failed to identify any reason why disqualification is
                 not required under the circumstances of this case

       Although the trustees do not dispute that a substantial relationship exists between
Sandler & Rosen‟s representation of Betty and its current representation of the Marital
Trust, they argue that disqualification is not required because: (1) Sandler & Rosen
jointly represented Betty and Willet in the estate planning matters; and (2) Betty and
Fiduciary waived any right to disqualification through unreasonable delay.

                      a. The joint nature of Sandler & Rosen’s prior representation of
                         Betty and Willet is insufficient to avoid disqualification

       The trustees initially contend that the rule prohibiting an attorney from
successively representing clients with adverse interests does not apply where the attorney
jointly represented the parties in the prior matter. In support of its position, the trustees
rely on both statutory and decisional authority.




                                              16
                         i. Evidence Code section 962 does not establish a blanket
                            exception to the ethical limitations on adverse, successive
                            representations

       The trustees first argue that the prohibition on successive, adverse representations
does not apply when the attorney jointly represented the parties in the prior matter
because, under Evidence Code section 962, any attorney-client communications made
during the course of that joint representation are not privileged as between the joint
clients. Evidence Code section 962 “set[s] forth a joint client exception to the evidentiary
privilege accorded to attorney-client communications.” (Western Continental Operating
Company v. Natural Gas Corporation of California (1989) 212 Cal.App.3d 752, 761
(Western Continental).) The exception provides that when “„“two or more clients have
retained or consulted a lawyer upon a matter of common interest” . . . . neither may claim
the privilege in an action by one against the other. [Citations.]‟ [Citation.]” 4 (Zador,
supra, 31 Cal.App.4th at p. 1294.) The trustees contend that because the bar on
successive, adverse representations is predicated on the duty of confidentiality, it does not
apply where the prior representation was governed by section 962.
       The trustees‟ argument finds support in Croce v. Superior Court of City and
County of San Francisco (1937) 21 Cal.App.2d 18 (Croce), which held that an attorney
who had previously represented several clients associated in a business enterprise was not
disqualified from representing one of those former clients in a related, subsequent
litigation instituted against the other former clients. The appellate court explained that,
under the joint-client exception to the attorney-client privilege, “communications made
by parties united in a common interest to their joint or common counsel, while privileged
against strangers, are not privileged as between such parties nor as between their counsel


4
       The section states: “Where two or more clients have retained or consulted a
lawyer upon a matter of common interest, none of them, nor the successor in interest of
any of them, may claim a privilege under this article as to a communication made in the
course of that relationship when such communication is offered in a civil proceeding
between one of such clients (or his successor in interest) and another of such clients (or
his successor in interest).”

                                             17
and any of them, when later they assume adverse positions.” (Id. at p. 20.) Thus,
according to the court, the attorney was not prohibited from using confidential
information obtained in the first representation against his former clients in the second
representation.
       Several courts have rejected Croce‟s implication that Evidence Code section 962
creates a blanket exception to the prohibition on adverse, successive representations in
cases where the attorney jointly represented the parties in the prior matter. (See
Goldstein v. Lees (1975) 46 Cal.App.3d 614, 623 [“Even if Croce were applicable, we
would have difficulty following it. . . . „The rule of Croce has not been followed in any
other state, and several more recent cases suggest that its rule may no longer be followed
in California‟”].) For example, in Industrial Indemnity Co. v. Great American Ins. Co.
(1977) 73 Cal.App.3d 529, 536 (Industrial), an insured who had been previously
represented by an attorney retained by its insurer moved to disqualify the attorney from
representing the insurer in a subsequent, related matter. The insurer opposed the motion,
arguing that under Evidence Code section 962 and Croce, “since the [insured] and
[insurer] were „united in a common interest‟ in the defense of the [original] action,
communications to their common counsel [were] not privileged.” (Id. at p. 535.)
       The appellate court rejected the argument: “The . . . viability of Croce has been
questioned. [Citation.] Nevertheless, even if Croce is still good law, it is inapplicable.
Minimally it presupposes that the former representation of two or more clients „united in
a common interest‟ [Citation] was not, itself, a violation of the Rules of Professional
Conduct.” (Industrial, supra, 73 Cal.App.3d at p. 536.) The court explained that, during
the prior representation, the attorney had failed to disclose that a potential conflict existed
between the insurer and the insured, who would not be indemnified in the event the injury
occurred as the result of the its own negligence. The court concluded that, “even if Croce
[wa]s still good law, it d[id] not apply to a situation where the joint representation of two
or more clients with conflicting interests was undertaken or continued without disclosure
and written consent.” (Id. at p. 4.)



                                              18
       Similarly, in Cornish v. Superior Court (1989) 209 Cal.App.3d 467 (Cornish), the
court held that the determination whether an attorney may represent one former joint
client against another in a subsequent, related matter depends on the individual facts of
each case. Cornish involved a dispute between a contractor and its subcontractor arising
from a construction project. Several lawsuits were filed regarding the project, and the
contractor, acting through his independent counsel, agreed to tender defense of several of
the actions to the subcontractor‟s bond company, Capital. Prior to accepting the defense
tender, Capital‟s attorney obtained the contractor‟s consent that if Capital and the
contractor became “adversaries in a future litigation,” the attorney could continued to
represent Capital regardless of any conflict with the contractor. Moreover, at all times
during the defense, the contractor retained personal counsel to advise him and there was
no evidence that Capital‟s attorney ever provided advice directly to the contractor. In a
subsequent related action, Capital, using the same attorney, sued the contractor, who then
moved for the attorney‟s disqualification.
       The appellate court ruled that, under such circumstances, disqualification was not
required. The court cited Croce in support of its holding, but rejected the apparent
breadth of its holding: “[A]n attorney should not always be free to represent one former
joint client against another merely because of the joint-client exception to the attorney-
client privilege and we can easily envision situations where such action would seriously
undermine the integrity of the attorney-client relationship, the present case is not such a
situation.” (Cornish, supra, 209 Cal.App.3d at p. 477.) The court noted that, in the case
before it, the contractor maintained an attorney-client relationship with his personal
attorney, who he had looked to “not only to advise him but to represent his interests [in
the litigation].” (Ibid.) It further noted that Capital‟s attorney had informed the
contractor that it intended to continue to represent Capital in the event a conflict
developed between the parties. The court explained that its “conclusion [wa]s based on
the specific facts present” and “would be significantly altered if petitioner had not been
independently represented by counsel or if there was evidence that petitioner looked to



                                             19
both its personal counsel and [Capital‟s attorney] for advice and counsel.” (Id. at
pp. 477-478.)
       Finally, in Western Continental, supra, 212 Cal.App.3d 752, the court rejected
outright Croce’s conclusion that the joint-client exception to the attorney-client privilege
had any relevance to the issue of disqualification. The plaintiff in Western Continental
jointly litigated a claim with the Natural Gas Corporation of California (NGC) against a
third party. Years later, plaintiff, utilizing the same attorney, filed a breach of contract
action against NGC, which then moved to disqualify plaintiff‟s attorney. The trial court
concluded that the matters were substantially related and granted the motion.
       On appeal, plaintiff argued that the ethical rules applicable to successive
representations “did not apply where the attorney jointly represented the parties in the
former matter.” (Western Continental, supra, 212 Cal.App.3d at p. 761.) Plaintiff
asserted that, pursuant to Evidence Code section 962, “each party fully understood that
information disclosed by either party [during the joint representation] should be shared
with both parties.” (Ibid.) As a result, the attorney was permitted to disclose to plaintiff
any information NGC had provided during the course of the joint representation.
       In rejecting this argument, the court adopted the reasoning set forth in prior federal
decision that had rejected Croce: “We disagree that the privilege exception [in Evidence
Code section 962] . . . ha[s] any application here. . . . [W]e are not concerned in this case
with discovery of allegedly privileged communications. Instead, the pertinent issue is the
propriety of an attorney‟s representation adverse to a former client. Our courts have
distinguished the rule against representing conflicting interests from the attorney-client
evidentiary privilege noting that the former is broader than the latter. „“„ . . . The
evidentiary privilege and the ethical duty not to disclose confidences both arise from the
need to encourage clients to disclose all possibly pertinent information to their attorneys,
and both protect only the confidential information disclosed. The duty not to represent
conflicting interests . . . is an outgrowth of the attorney-client relationship itself, which is
confidential, or fiduciary, in a broader sense. Not only do clients at times disclose
confidential information to their attorneys; they also repose confidence in them. The

                                               20
privilege is bottomed only on the first of these attributes, the conflicting-interests rule, on
both.‟ [Citation.]‟ [Citation.]” (Western Continental, supra, 212 Cal.App.3d at p. 762
[citing and quoting E. F. Hutton & Company v. Brown (S.D. Tex. 1969) 305 F.Supp. 371,
393-394 [“What the court in Croce failed to note is that the basis for the rule against
representing conflicting interests is broader than the basis for the attorney-client
evidentiary privilege”].)
       We agree with Western Continental’s reasoning and follow its holding here. In
explaining the standard for evaluating whether representation adverse to the interests of a
former client is prohibited, the California Supreme Court has “broadly . . . explained that
„an attorney is forbidden to do either of two things after severing his relationship with a
former client. He may not do anything which will injuriously affect his former client in
any matter in which he formerly represented him nor may he at any time use against his
former client knowledge or information acquired by virtue of the previous relationship.‟
[Citation.] The prohibition is in the disjunctive. An attorney „may not use information or
“do anything which will injuriously affect his [or her] former client.”‟ [Citation.]” (City
National Bank v. Adams (2002) 96 Cal.App.4th 315, 323-324 [citing and quoting
Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574 and People ex rel.
Deukmejian v. Brown (1981) 29 Cal.3d 150, 156] [footnote omitted].) In this case,
Sandler & Rosen‟s conduct falls squarely within the prohibition. Although the firm
previously represented both Betty and Willet in the estate planning matters, it is now
asserting (on behalf of Willet‟s representatives) that the documents it prepared during the
joint representation should be interpreted in a manner that would substantially reduce the
value of Betty‟s estate (or her trust), thereby harming her interests.
       The California Supreme Court has also repeatedly held that the disqualification
rules are not merely intended to protect client confidences or “other interests of the
parties”; rather, “[t]he paramount concern . . . [is] to preserve public trust in the
scrupulous administration of justice and the integrity of the bar.” (Speedee Oil, supra, 20




                                              21
Cal.4th at p. 1145.) In light of these significant public interests, we do not agree that
matters of disqualification should be determined solely by reference to evidentiary rules. 5
       Moreover, even if, as Cornish indicates, there may be some circumstances under
which an attorney may represent one former joint client against another in a substantially
related matter, this is not such a case. None of the factors underlying the court‟s decision
in Cornish are present here: Sandler & Rosen directly and personally advised Betty on
the estate planning matters; there is no evidence that Betty retained independent counsel
to advise her; and, as discussed in more detail below, there is no evidence Sandler &
Rosen disclosed to Betty the adverse aspects of the joint representation nor did it obtain
her consent that, if a conflict arose, Sandler & Rosen could continue to represent Willet.

                             ii.    Zador v. Kwan supports disqualification

       The trustees next contend that, under Zador v. Kwan, supra, 31 Cal.App.4th 1285,
courts should not use the substantial relationship test to assess disqualification motions
predicated on successive representations if the attorney jointly represented the parties in
the prior proceeding. According to the trustees, Zador held that, under such
circumstances, the only relevant inquiry is whether the attorney complied with the Rules
of Professional Conduct governing disclosure of conflicts that were in effect at the time
of the prior joint representation. The trustees further assert that when Sandler jointly
represented Betty and Willet in 1992, there was no ethical rule requiring him to disclose
the potential conflicts inherent in the joint representation or to obtain Betty‟s consent
before proceeding with the representation. As we explain, even if we accept the trustees‟
interpretation of Zador, there is no basis for their assertion that the Rules of Professional
Conduct in effect in 1992 did not require Sandler & Rosen to obtain Betty‟s consent prior
to jointly representing her and Willet in the estate matters.


5      For the same reasons, we reject the trustees‟ assertion that Evidence Code sections
957 and 960, which set forth additional attorney-client exceptions for communications by
a deceased client regarding the client‟s intent with regard to a conveyance, are relevant to
determining the issue of disqualification.

                                             22
       The plaintiff In Zador–the Zador Corporation– purchased a property through its
agent C.K. Kwan. Zador subsequently sold the property through a partnership owned by
James Claitor and Roy Bolton. Bolton later filed a lawsuit against Zador, Kwan and
Claitor arising from the sale. After Zador retained Heller, Ehrman, White & McAuliffe
(Heller) to defend it in the matter, Kwan requested indemnity based on his status as
Zador‟s agent. Heller agreed to jointly represent Kwan and presented him with a conflict
waiver indicating that, in the event a conflict arose between Zador and Kwan, Heller
would discontinue its representation of Kwan and continue its representation of Zador.
Kwan reviewed the waiver and signed it. At some point in the litigation, Heller
discovered Kwan may have committed fraud against Zador in the initial purchase
transaction and immediately advised him that he needed to retain separate counsel. Kwan
agreed and reaffirmed his consent to Heller‟s continued representation of Zador. Zador
later filed a cross-claim against Kwan, who then moved to disqualify Heller. The trial
court “ruled that there was a substantial relationship between Heller‟s prior representation
of Kwan and the current litigation. Accordingly, the motion to disqualify was granted.”
(Zador, supra, 31 Cal.App.4th at p. 1292.)
       The appellate court reversed, concluding that, under the circumstances, the
substantial relationship test was insufficient to determine whether disqualification was
required: “[Generally,] if there is a substantial relationship between the pending suit and
the prior representation, then such disclosure is presumed. At this point, disqualification
is justified. [¶] However, when the prior representation involves joint clients, and the
subsequent action relates to the same matter, the substantial relationship test adds nothing
to disqualification analysis. This is because a substantial relationship between the former
representation and the subsequent action is inherent in such situations. In other words,
clients A and B are jointly represented by C until C discovers a conflict between the legal
position of A and B. Client B retains separate counsel. Client A then sues Client B. In
these circumstances, a substantial relationship will always exist between C‟s prior
representation of B and the litigation between A and B. Accordingly, in this situation, the
substantial relationship test does not „test‟ anything. It should not determine whether C

                                             23
should be disqualified from representing A.” (Zador, supra, 31 Cal.App.4th at p. 1294.)
The court further noted that although the substantial relationship test was devised as a
means of determining when “confidences were likely disclosed, in a joint client situation,
confidences are necessarily disclosed.” (Ibid.)
       The court concluded that because the substantial relationship test would always be
satisfied where the prior action involved joint clients and the subsequent action related to
the same matter, the “propriety of disqualification” in such cases should “generally turn[]
upon the scope of the clients‟ consent.” (Zador, supra, 31 Cal.App.4th at pp. 1294-
1295.) The court explained that “[n]ot all conflicts of interest require disqualification. In
some situations, the attorney may still represent the client if the client‟s consent is
obtained. . . . [¶] For example, informed written consent is required before an attorney
can jointly represent clients in the same matter. California Rules of Professional Conduct,
Rule 3–310(C)(1) requires an attorney to obtain each client's informed written consent
before accepting representation of more than one client in a matter in which the interests
of the clients potentially conflict. Similarly, Rule 3–310(C)(2) requires an attorney to
obtain each client‟s informed written consent before accepting or continuing
representation of more than one client in a matter in which the interests of the clients
actually conflict.” (Id. at p. 1296.)
       Zador reviewed several cases (including Cornish) in which courts had held that
disqualification was not required if, prior to the joint representation, the attorney obtained
written consent that it could represent one of the clients against the other in any future,
related proceedings. It further concluded that the consent form Heller provided to Kwan
was sufficiently detailed and that Kwan‟s consent was informed. In summarizing its
ruling, the Zador court explained that the “[substantial relationship] test was not
determinative . . . [b]ecause Kwan consented to Heller's continued representation of
Zador . . .” (Zador, supra, 31 Cal.App.4th at p. 1303.)
       It is not clear whether (as trustees contend) Zador held that the substantial
relationship test does not apply when the attorney seeks to represent one former joint
client against another in a matter related to the prior joint representation. An alternative

                                              24
reading of the case is that the substantial relationship is always satisfied in such cases
and, as a result, disqualification is required unless the attorney obtained consent. Stated
more simply, Zador might be properly interpreted as a straightforward application of the
rule that “if the prior representation was „substantially related‟ to the current
representation[,] . . . disqualification is unnecessary „“where the client expressly or
impliedly consents to the adverse representation [citation].”‟ [Citations.]” (In re Lee G.
(1991) 1 Cal.App.4th 17, 27.) In any event, the essential holding of Zador is that, when
an attorney undertakes a representation of one former joint client against another in
substantially related matter, disqualification motions should be evaluated based on
whether the attorney complied with ethical disclosure and consent rules applicable to
multiple party representations.
       At the hearing on Fiduciary‟s disqualification motion, the trustees‟ contended that
because Rule 3-310, subdivision (C)(1)–which requires an attorney to obtain consent
before representing more than one client in a matter in which the interests of the clients
potentially conflict–was not in effect at the time Sandler provided the estate planning
services to Betty and Willet, Sandler had no duty to disclose the potential conflict to
Betty or obtain her consent prior to proceeding with the joint representation.
       While it is true that Rule 3-310, subdivision (C)(1) was not adopted until August
in 1992 (several months after Betty signed the will that Sandler drafted for her), the prior
version of the Rule 3-310, adopted in 1989, imposed identical duties. The prior version
of rule 3-310, subdivision (A) states: “If a member has or had a relations with another
party interested in the representation, or in its subject matter, the member shall not accept
or continue representation without all affected clients‟ informed written consent.”
       The Drafter‟s Notes to former Rule 3-330 subdivision (A) explain: “Paragraph
(A) is intended to apply to all types of legal employment, including the representation of
multiple parties in litigation or in a single transaction or in some other common enterprise
or legal relationship. Examples of the latter include the formation of a partnership for
several partners or a corporation for several shareholders, the preparation of an anti-
nuptial agreement, or joint or reciprocal wills for a husband and wife . . . In such

                                              25
situations, for the sake of convenience or economy, the parties may well prefer to employ
a single counsel, but a member must disclose the potential adverse aspects of such
multiple representation (e.g., Evid. Code, § 962) and must obtain the consent of the
clients thereto. Moreover, if the potential adversity should become actual, the member
must obtain the further informed written consent of the clients pursuant to subparagraph
(B).”6 The Drafter‟s Notes to the current version of Rule 3-330 include an almost
verbatim explanation regarding subdivisions (C)(1) and (C)(2).7
       The Drafter‟s Notes to the prior version of Rule 3-310, subdivision (A)
specifically list the preparation of “joint or reciprocal wills for a husband and wife” as a
form of multiple party representation that has “adverse aspects” and requires written
consent. As a result, there is no basis for the trustees‟ assertion that the rules in effect at
the time of Sandler‟s 1992 representation did not require him to obtain Betty‟s written
consent before jointly representing her and Willet in the estate planning matters. The
trustees have never presented any evidence that Sandler complied with this requirement.
Accordingly, under the principles articulated in Zador, disqualification is proper here.



6       The former version of Rule 3-310, subdivision (B) stated: “A member shall not
concurrently represent clients whose interests conflict, except with their informed written
consent.” Similar requirements are now imposed under Rule 3-310, subdivision (C)(2),
which provides that an attorney shall not, without the informed written consent of each
client, “Accept or continue representation of more than one client in a matter in which the
interests of the clients actually conflict.”

7       The notes state: “Subparagraphs (C)(1) and (C)(2) are intended to apply to all
types of legal employment, including the concurrent representation of multiple parties in
litigation or in a single transaction or in some other common enterprise or legal
relationship. Examples of the latter include . . . the preparation of . . . joint or reciprocal
wills for a husband and wife . . . . In such situations, for the sake of convenience or
economy, the parties may well prefer to employ a single counsel, but a member must
disclose the potential adverse aspects of such multiple representation (e.g., [Evid. Code,]
§ 962) and must obtain the informed written consent of the clients thereto pursuant to
subparagraph (C)(1). Moreover, if the potential adversity should become actual, the
member must obtain the further informed written consent of the clients pursuant to
subparagraph (C)(2).”

                                               26
       D. The Trustees Failed to Make a Prima Facie Showing that Betty Waived her
          Right to Seek Disqualification

       Finally, the trustees argue that, even if the substantial relationship would otherwise
require disqualification under the circumstances of this case, Betty Brown and Fiduciary
have waived any right to disqualification based on their unreasonable delay in seeking
such relief. In the trial court proceedings, the trustees submitted a declaration from
Sandler & Rosen indicating that: (1) prior to her death, Betty litigated multiple disputes
against the Marital Trust; and (2) in each of those cases, Marital Trust was represented by
Sandler & Rosen and Betty never moved for disqualification. The trustees further
asserted, that in the current action, Fiduciary discovered Sandler & Rosen‟s 1992
representation of Betty more than two months before filing its motion for
disqualification.
       “[A]ttorney disqualification can be impliedly waived by failing to bring the
motion in a timely manner.” (Liberty Nat. Enterprises, L.P. v. Chicago Title Ins. Co.
(2011) 194 Cal.App.4th 839, 845 (Liberty).) As explained by one court, “it is not in the
interests of justice to make the „substantial relationship‟ rule so unyielding as to permit
the former client to inexcusably postpone objections without penalty. Therefore, a
narrow exception should apply if the present client, by way of opposition, offers prima
facie evidence of an unreasonable delay by the former client in making the motion and
resulting prejudice to the current client.” (River West, Inc. v. Nickel (1987) 188
Cal.App.3d 1297, 1308-1309.) To operate as a waiver, however, the “the delay [and] . . .
the prejudice to the opponent must be extreme.” (Liberty, supra, 194 Cal.App.4th at
p. 845; Western Continental, supra, 212 Cal.App.3d at pp. 763-764 [“Delay will not
necessarily result in the denial of a disqualification motion; the delay and the ensuing
prejudice must be extreme. [Citation.]”].) If the opposing party makes a prima facie
showing of extreme delay and prejudice, the burden then shifts to the moving party to
justify the delay. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 599;
Western Continental, supra, 212 Cal.App.3d at p. 763.)



                                             27
       In this case, we need not consider whether the trustees have made a prima facie
showing of extreme delay because they have offered no evidence demonstrating that they
suffered extreme prejudice as a result of that delay. Indeed, trustees have offered no
evidence or argument on the issue of prejudice. Accordingly, they have failed to make a
prima facie showing of an implied waiver.8


                                      DISPOSITION

       Let a peremptory writ of mandate issue directing the trial court to vacate its order
of February 5, 2013, denying the motion to disqualify Sandler & Rosen from representing
the trustees in this matter, and to enter a new and different order granting the motion.
Petitioner shall recover its costs on appeal.




                                                     ZELON, J.
We concur:




       PERLUSS, P. J.




       WOODS, J.




8      The trustees further assert that we should evaluate a variety of other factors in
assessing Fiduciary‟s disqualification motion, including whether Sandler & Rosen
“wrongfully obtained an unfair advantage,” the “practical consequences of [its] former
representation of [Betty]” and the trustees‟ interests in selecting the counsel of their
choice. However, as discussed at length above, it is well-established that a motion for
disqualification predicated on a conflict arising from a successive representation is to be
evaluated under the substantial relationship test. We therefore decline to consider the
additional factors set forth by the trustees.

                                                28
