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Joseph Tauriac v. Sam Rosas

July 6, 2011

JOSEPH TAURIAC,
PLAINTIFF,
v.
SAM ROSAS, GENERAL TEAMSTERS LOCAL # 439, A TRADE UNION, INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL NO. 439, A TRADE UNION AND DOES 1-20, DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION TO DISQUALIFY ATTORNEY

Joseph Tauriac brought this action for unfair business practices and defamation against General Teamsters Local # 439, International Brotherhood of Teamsters Local No. 439 (collectively "Local No. 439"), and Sam Rosas. Tauriac now moves to disqualify defendants' counsel, David A. Rosenfeld, and his law firm, Weinberg, Roger & Rosenfeld ("the firm"), on the ground that Rosenfeld has a conflict of interest.

I. Factual and Procedural Background

Tauriac was a "business agent" of Local No. 439 from 2000 through September 18, 2008. (First Am. Compl. ("FAC") ¶ 6 (Docket No. 2-1).) Rosenfeld and the firm have a longstanding relationship with Local No. 439, having represented the union for nearly twenty-five years. (Rosenfeld Decl. ¶ 2 (Docket No. 35).)

Tauriac states that Rosenfeld has "represented" him on three occasions. First, Tauriac states that he once pled guilty to a misdemeanor count of stalking, and "with the assistance" of Rosenfeld, he managed to maintain his employment with Local No. 439 because Rosenfeld provided a legal opinion to Local No. 439 that Tauriac's arrest was not a terminable offense. (Tauriac Decl. ¶¶ 3-4 (Docket No. 26).) Rosenfeld states that he did not actually represent Tauriac in the criminal proceeding, and that any legal opinion he provided to Local No. 439 was part of his representation of the union.*fn1 (Rosenfeld Decl. ¶¶ 7, 10.) Tauriac does not dispute this explanation or provide any evidence of an attorney-client relationship between himself and Rosenfeld in that matter.

Second, Tauriac states that Rosenfeld represented him at a deposition in the case of Cicairos v. Summit Logistics, Inc., San Joaquin Superior Court Case No. CV 014827. (Tauriac Decl. ¶ 7; Rosenfeld Decl. ¶ 11.) Rosenfeld agrees that the firm represented Tauriac at a deposition on June 5, 2009, as part of a wage-and-hour class action related to plaintiff's prior employment with Summit Logistics. (Rosenfeld Decl. ¶¶ 11-12.) Plaintiff is not a named party in that action, but is one of 500 to 1000 truck drivers who are members of the class and one of eighty drivers whose depositions were taken. (Id. ¶¶ 11, 13.) The retainer agreement regarding the representation was expressly limited to "representation at the deposition." (Id. ¶ 13, Ex. B.)

Third, Tauriac states that Rosenfeld represents the class, which includes Tauriac, in Cicairos. (Tauriac Decl. ¶ 7.)

Tauriac filed a complaint with the State Bar of California regarding Rosenfeld's representation of defendants in this action, which was dismissed on April 18, 2011. (Rosenfeld Decl. Ex. A.)

II. Discussion

The power to disqualify an attorney against the wishes

of his client is within the discretion of the trial court as an exercise of its inherent powers. See United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996); Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100, 1103 (N.D. Cal. 2003). Motions to disqualify counsel are decided under state law. In re Cnty. of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000); City & Cnty. of San Francisco v. Cobra Solutions, Inc., 38 Cal. 4th 839, 852 (2006) ("California has not adopted the ABA Model Rules, although they may serve as guidelines absent on-point California authority or a conflicting state public policy.") (citations omitted); Sharp v. Next Entm't, Inc., 163 Cal. App. 4th 410, 433 (2d Dist. 2008) (applying ABA Model Rules of Professional Conduct when California Rules of Professional Conduct and case law had not directly addressed the issue presented).

Because a motion to disqualify is most often tactically motivated and can be disruptive to the litigation process, disqualification is considered to be a drastic measure that is generally disfavored and imposed only when absolutely necessary. Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796, 814 (N.D. Cal. 2004); see also Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045, 1050 (9th Cir. 1985) (requests for disqualification "should be subjected to 'particularly strict judicial scrutiny'") (quoting Rice v. Baron, 456 F. Supp. 1361, 1370 (S.D.N.Y. 1978)).

California Rule of Professional Conduct 3--310(E), upon which Tauriac relies in arguing for disqualification, provides that: "A member 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 client, the member has obtained confidential information material to the employment." Cal. Rule of Prof'l Conduct 3--310(E).

1. Criminal Charges

The attorney for a corporation or other entity represents the entity as an organization, not the entity's employees or agents as individuals. See United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 119 F.3d 210, 215 (2d Cir. 1997); Aragon v. Pappy, Kaplon, Vogel & Phillips, 214 Cal. App. 3d 451, 463-64 (2d Dist. 1989). This generally means that the entity, and not any individual ...


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