Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SPR077336
Jones, P.J.
In October 1999, Loyal L. Polston created a trust and named Kathleen Verniest as the primary beneficiary. In an October 2004 amendment to the trust, Polston altered the way trust property was to be distributed. Among other things, the amendment provided that Betty LeDonne — not Kathleen Verniest — would receive the bulk of the trust estate and that various other beneficiaries, including Stephen Keating and Genevieve Bellefeuille, would receive trust property.
After Polston’s death, the beneficiaries under the differing versions of the trust engaged in a battle over trust assets. Verniest hired William McDevitt to represent her in the dispute and LeDonne engaged Benjamin Gale and James Thompson to represent her. Keating and Bellefeuille hired James P. Nevin, Sr., to represent them.
In early 2008, attorney Gale’s investigator, Daniel Gare, contacted Keating. Gare said Keating would get $70,000 if he worked with Gale. In February 2008, Verniest moved to disqualify LeDonne’s attorneys, contending they violated California Rules of Professional Conduct, Rule 2-100(A) (Rule 2-100(A)). The court granted the motion. It determined Keating was a “party” within the meaning of Rule 2-100 and that Gare — acting at Gale’s behest — communicated with Keating about the subject matter of the dispute. The court also concluded that Gale, Gare, and Thompson knew Keating was represented by Nevin when Gare contacted Keating.
Rule 2-100(A) provides: “While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”
On appeal, LeDonne contends the court erred in granting the motion to disqualify because: (1) Keating is not a “party” within the meaning of Rule 2-100(A); and (2) Gale did not know Keating was represented by counsel when Gare contacted him. We disagree, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We recite facts only as germane to LeDonne’s contention that the court erred in granting Verniest’s motion to disqualify.
Verniest’s Motion to Disqualify
On February 21, 2008, Verniest moved to disqualify Gale and Thompson from representing LeDonne on the grounds that the attorneys and their agent, Gare, contacted Keating in violation of Rule 2-100. Nevin, Keating’s attorney, submitted a declaration in support of the motion. In it, he averred he informed Gale “at the outset of this litigation” that he represented Keating and one of Keating’s sisters, Bellefeuille. Nevin stated that Gale contacted him several times throughout 2007 to schedule a deposition for Keating. During these conversations, Gale asked Nevin whether he “was acting as [ ] Keating’s attorney” and Nevin “replied in the affirmative.” Nevin’s declaration attached letters to Gale wherein Nevin refers to Keating and Bellefeuille as his clients. Finally, Nevin stated that Gale and his representatives contacted Keating and “discussed this case and [Nevin’s] representation” with Keating.
LeDonne’s Opposition
In her opposition to the motion, LeDonne argued: (1) Keating was not a “party to these proceedings” within the meaning of Rule 2-100; (2) Keating was not represented by counsel when Gare contacted him; and (3) the communications were not “about the ‘subject of the representation.’” Gale and Gare offered declarations in support of the opposition. Gale, LeDonne’s attorney, stated he had never “spoken with or otherwise communicated with [ ] Keating, directly or indirectly, except to find out if [he] was represented by counsel and whether [he] would appear as a witness at trial.” Gale averred that when he contacted Keating, Keating told him he “wanted to talk to [Gale] further” and provided him with a letter stating “that he is not represented by counsel.” Gale’s declaration attached a February 15, 2008 note addressed to Gale and signed by Keating. The note stated, “This is to confirm that I am no longer represented by attorney... Nevin with respect to the Polston trust case, Verniest v. LeDonne, or any other matter.”
In his declaration, Gare described his communications with Keating. Gare explained that he went to the Safeway store where Keating worked at Gale’s request. He asked Keating whether he would be willing to testify at trial and whether he was represented by counsel. According to Gare, Keating said he “did not have an attorney” and he “had not heard from his former attorney [ ] Nevin, in a long time.” Gare met with Keating a second time; during this meeting, Keating told Gare he “would be happy to confirm in writing... that he was no longer represented by [ ] Nevin.”
Verniest’s Reply
In reply, Verniest submitted the declarations of Keating, Sharon O’Brien, Bellefeuille and Nevin.
In his declaration, Keating stated Nevin “ha[d] been [his] attorney since the outset of this case” and that he wanted Nevin to “continue representing [him] in this case.” He also stated he did not want Gale or Gare contacting him. Keating averred that Gare contacted him at the end of January 2008 and “identified himself as a representative of [ ] Gale, the attorney for Betty L[e]Donne.” Gare told Keating he “‘would get at least a $70,000 check and so would [Bellefeuille]” if Keating worked with him. Gare met Keating at work “almost daily” and told him Nevin: (1) moved his office without telling Keating; (2) was conspiring with Keating’s sister’s attorney “to defeat [Keating’s] claim and advance hers;” and (3) “was not taking any actions to protect [Keating’s] interests.”
Gare also told Keating that firing Nevin was the only way for him to get money out of the trust estate. Gare insisted that Keating “sign a letter he prepared discharging Mr. Nevin as [Keating’s] attorney.” Keating signed the letter “only because” Gare told Keating “every day for two weeks” that Nevin was “conspiring” with Keating’s sister’s attorney. According to Keating, Gare was “very assertive and demanding.”
In her declaration, O’Brien, whom Keating described in his declaration as his “significant other,” averred that Gare drove Keating home from work because Gare wanted to talk to Keating “about the Polston litigation.” When they arrived at the home O’Brien shared with Keating, O’Brien told Gare that Keating “is represented by... Nevin.” According to O’Brien, Gare “lied to [Keating] about how much money he would get if [ ] LeDonne won.” O’Brien stated that Keating signed the letter discharging Nevin as his attorney “only to make [ ] Gare leave us alone.”
Bellefeuille averred that she and her brother, Stephen Keating, are represented by Nevin. She stated that “a representative of Mr. Gale’s office” called her at her place of employment. She instructed her colleague to tell Gale’s office that she and Keating were represented by Nevin “and all communication should be with [ ] Nevin.” After that conversation, Gale “and/or his representative” met with Keating at his home.
In his declaration, Nevin stated that “Gale... is aware that I represent... Keating and... Bellefeuille as beneficiaries [of the Loyal L. Polston Trust] although they have never been parties to the litigation.” Nevin stated that he participated in the mediation in the matter in June 2006 and signed a confidentiality agreement in behalf of his clients Bellefeuille and Keating “as beneficiaries.” Nevin further stated that he learned that Gale “and/or his office had contacted my clients [Stephen] Keating and Genevieve Bellefeuille directly, on [ ] several separate occasions.” Nevin informed Gale that neither he, nor his agents, were to contact Nevin’s clients again.
In response to these declarations, Gare submitted a detailed supplemental declaration. In it, he called Keating’s declaration “false,” and denied offering Keating money to settle the litigation or work with Gale. LeDonne also offered a rambling, irrelevant declaration of Michael Keating, another brother, setting forth his version of circumstances surrounding the litigation. See discussion of the issue of sanctions in part III.
The Court’s Order
Following a hearing, the court granted the motion and barred Gale and Thompson from representing or assisting LeDonne in the case. In a detailed, five-page order, the court held that Keating was a “party” and an interested person within the meaning of Rule 2-100(A) in part because he is a “beneficiary under one version of the trusts at issue.” The court also concluded Gale and Gare “knew that Keating was represented by Nevin, since Gale contacted Nevin to arrange for the taking of Keating’s deposition.... Furthermore, where as here the attorney directly confirms his representation of a client, any further efforts to contact the client by the opposing side can only be viewed with extreme alarm. According to Keating, even after Mr. Nevin notified Gale and Thompson that Gare had wrongfully contacted his client, Gare continued to contact Keating.”
DISCUSSION
I. Standard of Review
“The authority of a trial court ‘to disqualify an attorney derives from the power inherent in every court “[t]o control in furtherance of justice, the conduct of its ministerial officers.”’ [Citations.] ‘Ultimately, disqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.’ [Citation.] As we have explained, however, ‘[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.’ [Citation.]” (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846 (Cobra Solutions).)
We review the trial court’s ruling on the disqualification motion for abuse of discretion. (Cobra Solutions, supra, 38 Cal.4th at p. 848.) As our high court has explained, “If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court’s express or implied findings supported by substantial evidence. [Citations.]” (Ibid; see also Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft (1999) 69 Cal.App.4th 223, 230 (Morrison), bracket omitted [“‘“We must consider the evidence in the light most favorable to the prevailing party and take into account every reasonable inference supporting the trial court’s decision”’”].) The trial court’s discretion is limited by “applicable legal principles” (Cobra Solutions, supra, 38 Cal.4th at p. 848) and is “‘“subject to reversal when there is no reasonable basis for the action.”’” (Morrison, supra, 69 Cal.App.4th at p. 230.)
II. The Court Did Not Abuse Its Discretion by Granting the Motion to Disqualify Gale and Thompson
As noted above, the trial court concluded Keating was a “party” within the meaning of Rule 2-100(A) even though he was not a “named party to this matter.” The court explained that the term “‘party’ broadly denotes person, and is not limited to litigants.... [H]ere, Keating is far more than just ‘any person.’ He is an interested person as a beneficiary under one version of the trusts at issue.” We agree. “Rule 2-100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory schedule or case law will override the rule.” (Rule 2-100, Discussion; see also 1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 423, p. 537 [“As used in the Rules of Professional Conduct, Rule 2-100(A), ‘the subject of the representation,’ ‘matter,’ and ‘party’ are not limited to litigation”]; see also Jackson v. Ingersoll-Rand Co. (1996) 42 Cal.App.4th 1163, 1167 (Jackson) [“Under Rule 2-100, ‘party’ broadly denotes person, and is not limited to litigants...”].)
Relying on In the Matter of Dale (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 798, 807 (Dale), an opinion from the Review Department of the California State Bar Court, LeDonne contends Jackson is “no longer good authority” for the proposition that the term party denotes “person, and is not limited to litigants.” (Jackson, supra, 42 Cal.App.4th at p. 1167.) LeDonne argues “the term ‘party’ as used in Rule 2-100, [is] limited to a party to litigation, i.e., a party who had made a formal appearance in the case.”
In Dale, the defendant confessed to setting fire to an apartment building. He pleaded guilty to various counts of murder and arson with the condition that he retain his right to appeal the murder conviction. (*2.) On appeal, he contested the voluntariness of his confession. (*1.) Attorney Joshua Dale represented the tenants of the apartment building in a negligence lawsuit against the apartment owner. Dale befriended the defendant while he was in jail and persuaded him to sign an incriminating declaration. Dale then obtained a favorable settlement in the civil action.
The Review Department concluded the defendant was not a “party” within the meaning of Rule 2-100 because his “involvement with the civil suit was only as a witness.” (*5) It “narrowly” interpreted the word ‘party’ and held that Dale was not culpable for his communications with the defendant under Rule 2-100 because the defendant “was not a represented party in the [civil] lawsuit” filed against the owner of the apartment building.
LeDonne’s reliance on Dale is misplaced. As an initial matter, we are not bound by decisions of the Review Department. (Calvert v. State Bar (1991) 54 Cal.3d 765, 781.) Second, the Review Department did not — as LeDonne contends — define party as a person or entity who has made a formal appearance in the case. The court merely concluded the defendant was a witness in the civil lawsuit, not a party. Here, and in contrast to Dale, Keating is more than a witness. He is an interested party — and a potential beneficiary — to the Polston trust.
Next, LeDonne seems to contend that Gare’s contact with Keating was “unintentional” because Gale did not know that Keating was represented by counsel. Again, we disagree. Substantial evidence supports the court’s conclusion “Gale and Gare knew that Keating was represented by Nevin” when Gare communicated with Keating. Gale contacted Nevin in the fall of 2007 to schedule Keating’s deposition. In their correspondence, Nevin repeatedly referred to Keating and Bellefeuille as his clients and informed Gale that he represented them. In support of the motion to disqualify, Nevin averred he informed Gale “at the outset of this litigation” that he represented Keating and Belefeuille. In her declaration, Bellefeuille averred that a representative of Gale’s office contacted Keating after she told Gale’s office she and Keating were represented by Nevin. And O’Brien averred that she told Gare that Nevin represented Keating.
More than ample evidence supports the trial court’s conclusion that Gale and Gare knew Keating was represented by counsel when Gare contacted Keating. And as result, the court properly concluded Gale and Thompson violated Rule 2-100(A). (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1215 [Rule 2-100 bars contact with represented parties where the attorney knows the party is represented]; see also Jackson, supra, 42 Cal.App.4th at p. 1167, fn. 2 [“No violation of Rule 2-100 occurs unless opposing counsel contacts a represented party whom counsel ‘knows’ to be represented”].)
We hold, moreover, that the court properly concluded that Gale and Thompson’s violation of Rule 2-100(A) required their disqualification. “Contact with represented parties is proscribed to preserve the attorney-client relationship from an opposing attorney’s intrusion and interference.” (Jackson, supra, 42 Cal.App.4th at p. 1167.) “Disqualification is proper to assure fairness in judicial proceedings — its point is not to punish ethical transgressions, but to prevent continuing, detrimental effects upon the proceedings.” (Id. at pp. 1166.) Here, disqualification was necessary to prevent Gare (at Gale’s behest) from aggressively pursuing Keating and attempting to persuade him to work with Gale.
III. Verniest’s “Motion for Sanctions” Is Denied
California Rules of Court, rule 8.276 authorizes the court to impose sanctions on a party or an attorney for “[i]including in the record any matter not reasonably material to the appeal’s determination.” (Cal. Rules of Court, rule 8.276(a)(2).) Verniest moves for “reasonable monetary sanctions” because LeDonne has included irrelevant material in the record. Although the record does contain material not relevant to the appeal, we decline to award sanctions. Verniest failed to comply with the requirement that a motion for sanctions made pursuant to rule 8.276 “must include a declaration supporting the amount of any monetary sanction sought....” (Cal. Rules of Court, rule 8.276(b)(1).)
See footnote 2.
DISPOSITION
The order granting Verniest’s motion to disqualify Gale and Thompson is affirmed. Verniest’s motion for sanctions is denied. Verniest shall recover her costs on appeal.
We concur: Simons, J., Needham, J.