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Court of Appeal:
Disqualification of Counsel Who Insulted Represented Opposing Party Is Proper
By a MetNews Staff Writer
Div. Three of the First District Court of Appeal has held that a trial judge did not abuse his discretion in disqualifying an attorney from representing her client in a family law proceeding due to the lawyer communicating directly—and profanely—to the represented opposing party following a hearing which did not go her way.
The court found that the presence of the opposing party’s attorney during the profanity-laced outburst did not save the incident from qualifying as misconduct.
Presiding Justice Alison M. Tucher wrote the unpublished opinion affirming the disqualification order by Contra Costa Superior Court Judge Leonard Marquez. Justices Carin T. Fujisaki and Ioana Petrou joined in the opinion.
Appealing the order was Michelle Woodruff of the Divorce Legal Services law firm, operating in the Contra Costa area. Woodruff represented David Martin in a family law proceeding against Kristin Valtier.
Adverse Rulings
On June 22, 2022, Marquez made multiple orders adverse to Martin, including a domestic violence protection order, custody orders, and an order for child support.
After the judge left the bench, Woodruff allegedly stormed at Valtier, accusing her of lying and using profanity to insult her, in the presence of Valtier’s attorney Herbert Ferdinand Layton. The bailiff asked Woodruff to leave the courtroom.
On Sept. 2, 2022, Valtier filed a request for Woodruff’s recusal, saying she was afraid of her and would be unable to participate effectively in the court proceedings if Woodruff remained as Martin’s counsel. Woodruff filed a responsive declaration denying calling Valtier names but asserting that any communication was permissible as it was done in front of Valtier’s attorney.
At a Jan. 5, 2023 hearing on the motion, Layton testified under oath that he was sitting with his client after the June hearing when Woodruff walked behind him to address his client directly. Woodruff also testified.
Marquez found Layton’s testimony to be credible and declared that Woodruff’s conduct violated Rule of Professional Conduct 4.2, prohibiting direct communication with a represented party.
The order disqualified her from representing Martin in the present matter and in a separate proceeding between the parties.
Direct Communication
Rule 4.2(a) provides that “a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”
Woodruff contended in her brief on appeal that Layton’s presence during the incident amounted to implied consent. She argued that a State Bar ethics opinion “makes clear that as to the question of consent, it does not have to be express but may be implied by the facts and circumstances surrounding the communication” and that “[o]ne such factor is the presence of the other attorney.”
Tucher disagreed and said:
“Rule 4.2(a) is not limited to communications made in the absence of the party’s counsel; rather, it applies by its terms to all communications made without counsel’s consent. And there is nothing in this record to show counsel consented to Woodruff approaching Valtier and speaking to her in vulgar and insulting terms and an angry manner.”
Tucher was similarly unpersuaded by Woodruff’s assertion that her statements did not concern the subject of the representation. The jurist remarked: “Woodruff characterizes the ‘subject of the representation’ as ‘whether or not [Martin] committed acts enjoined under the Domestic Violence Protection Act against [Valtier].’ Even assuming this defines the scope of Woodruff’s representation of Martin, her comments—which impugned the result of the proceeding and Valtier’s honesty in bringing the allegations forward—appear to concern that subject.”
Propriety of Disqualification
Tucher acknowledged that the right to counsel of one’s choice is significant but said that it must yield to ethical considerations that affect the administration of justice.
She wrote that the “trial court balances competing policy considerations in deciding whether to disqualify an attorney” and those include the “hardship on the client of the disqualified attorney, who must bear the costs of finding a replacement.”
The justice rejected Woodruff’s contention that the delay of two months between the incident and the motion to disqualify—and the fact that two additional hearings were held during that time—meant that Valtier waived her right to object to opposing counsel. Tucher commented:
“Woodruff also relies on the two additional hearings that she tells us the parties participated in while the disqualification request was pending. Based on these hearings, which she asserts were productive, she argues both that Martin became more committed to the attorney-client relationship during this time—thus establishing prejudice—and that disqualification was shown to be unnecessary because Valtier was able to participate in the proceedings, even as Woodruff continued to represent Martin. But Martin provided neither a declaration nor testimony showing that he suffered prejudice from the disqualification, and Woodruff points to no other evidence in the record to support her assertions. In short, this record does not support her claim.”
She added:
“Woodruff also argues the trial court’s ruling was excessively punitive. She is correct that the purpose of disqualification is not to punish an attorney’s bad behavior….But there is no indication here that the trial court sought to punish Woodruff rather than to protect the integrity of the judicial proceedings.”
The case is Martin v. Valtier (Woodruff), A167676.
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