January 22, 2014
Generally, the attorney that the client wants to retain is the attorney that they are able to retain ultimately. Still, there are occasions when the desired attorney is unable to be retained because of a prior representation.
For example, the attorney might have represented a past client who is now an adversary of the current client. Since representation of the prior client might yield confidential information that is not discoverable, this could give an unfair advantage to the current client. In particular, the attorney might know the past client's habits, vulnerabilities, personality, etc. This could prove very beneficial to the current client because the attorney would know how the past client could be exploited. Similarly if a professional football team spied on their opponent by taping their practices or their pre-game walk-through, this too would create an unfair competitive advantage because the spying team would know beforehand how that team will run its plays.
In light of this obvious conflict, the past client is given the ability to disqualify their past attorney even if it deprives the current client of their attorney of choice. This scenario played out in a recent probate case in Los Angeles County Superior Court, Case No GP016054.
Richard E. and Mary Holder, husband and wife, created a revocable trust on February 11, 2009. Richard passed away a few weeks later on February 26, 2009 and Mary passed away on July 19, 2010. The couple had two children, Shyla and Richard L. These two children were named as successor co-trustees of the trust.
Shyla petitioned in June 2011 to have her brother Richard L. removed as trustee for breach of fiduciary duty. Allegedly, Richard L. had mismanaged trust assets and engaged in self-dealing. The interesting aspect of the case was that Shyla was represented by her husband, attorney David Cordier. Consequently, Richard L. filed a motion to disqualify
Mr. Cordier from representing his wife. The trial court granted the motion and this decision was upheld on appeal in an unpublished decision by the 2nd district court of appeal.
The court of appeal's decision can be summarized as follows: "we conclude there was sufficient evidence for the probate court to find that Cordier represented Richard regarding his business and received confidential financial information from him; Cordier represented and advised the settlors in creating the trust; Cordier represented both co-trustees in preparing the sales agreement and urging Richard to just sign the agreement; and Cordier assisted his son Brian and his wife Shyla in a manner adverse to Richard, as the co-beneficiary of the trust. Accordingly, the probate court did not abuse its discretion in granting Richard's motion to disqualify Cordier."
Thus, Mr. Cordier was barred from representing his wife Shyla with the proceeding to attempt to remove her brother as a trustee of the Holder trust.