Styles v. Mumbert, __ Cal.Rptr.3d __, 2008 WL 2737451 (Cal.App. 6 Dist. 2008)
Brief Summary
An attorney who had ceased representing a defendant was not allowed to switch sides by purchasing the plaintiff’s interest in the suit in which he had represented the defendant because doing so would violate the attorney’s duty to the defendant-former client.
Complete Summary
Plaintiff Delia Styles sued Edward Mumbert who was defended by attorney Anthony Pagkas. When Pagkas failed to respond to discovery requests, the trial court ordered terminating sanctions against Mumbert. Mumbert then retained new counsel in the Styles case, but the trial court still entered default judgment against Mumbert. Mumbert appealed.
While Mumbert’s appeal was pending, Pagkas purchased Styles’ interest in the suit. Pagkas sought to substitute himself for Styles in the appeal and to be represented by another lawyer in his firm. By this time, Mumbert was also suing Pagkas for malpractice. The appellate court denied Pagkas’ motion to substitute into Styles’ position on the appeal because doing so would violate the Rules of Professional Conduct and Pagkas’ fiduciary duties to Mumbert.
The court held that by switching sides, Pagkas would be violating his duty to safeguard client confidences. While an attorney may use client confidences to defend a legal malpractice claim or fee dispute, the court noted that this rule was inapposite because the present suit (Styles v. Mumbert) fit neither category. Moreover, the court found significant the fact that by replacing Styles, Pagkas would have to argue to uphold the default judgment against Mumbert—a judgment for which Pagkas was allegedly professionally responsible.
The court also held that Pagkas’ violation of “a myriad of ethical duties” would undermine public confidence in the legal system. Id. at *3. The court also sanctioned Pagkas, awarding Mumbert $5,260.
Significance of Opinion
The facts of this as found by the court clearly reveal a breach of fiduciary duty. Query, however, whether the result would have been the same if Pagkas’ insurer, and not Pagkas, had bought Styles’ interest.
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