California Family Law Monthly (Vol. 2016; Issue No. 5)

Blank Rome Partners Stacy Phillips and Kevin Martin, and Of Counsel Pauline Martin, provide the following commentaries in the May 2016 edition of California Family Law Monthly.

Trial Court Erred in Failing to Consider All Relevant Factors in Making Detriment Determination in Third Parent Case

COMMENTARY by Stacy Phillips and Pauline Martin:

Only a year ago, family law practitioners took a step back with horror when, in Marriage of Davis, the California Supreme Court instituted a ''bright line'' (some might say ''hard line'') approach to the legal effect of cohabitation in determining the date of separation. In Martinez v. Vaziri - in the completely different context of custody and presumed parentage -- the Court of Appeal took a ''big picture'' approach and refused to read into Family Code ยง 7612(c) a cohabitation requirement. Indeed, the Court of Appeal criticized the trial court for an improperly ''narrow construction'' of the term ''stable placement'' in the context of Family Code Section 7612(c).

Here, the Petitioner, who was the child's uncle, sought to be declared a ''third parent'' under Family Code sections 7611 (d) and 7612 (c). The court had already determined that Petitioner's half-brother was the child's biological father, in an earlier paternity action brought by the mother. However, the father had been incarcerated for much of the child's life and had spent no more than seven or eight hours with her, in total. The uncle, in contrast, had assisted the mother throughout her pregnancy and had lived with her and the child for the first six months of the child's life. After moving out, the uncle continued to spend two or three days and nights a week with the child and continued to hold her out as his daughter.

Because of unspecified substance abuse issues and an incident where he admitted to spanking the one-year-old child, Child Protective Services did not allow the uncle to see the child for six months. After the six-month period, the uncle spent five to 20 hours a week with the child. The mother testified that the uncle was the only male figure in her child's life, that he had financially cared for both mother and child, and that he was the child's father in an ''emotional sense.'' Yet, the uncle no longer lived with the child and the trial court took that fact to heart.

The trial court found (and the mother agreed) that the uncle was a presumed parent under section 7611(d) because he received the child into his home and openly held out the child as his own. However, the court found that recognizing only two parents would not be detrimental to the child within the meaning of section 7612(c), because it would not result in ''removing the child from a stable placement'' with the uncle.

The trial court chose to define ''stable placement'' very narrowly. Because the uncle and mother did not live under the same roof and because the uncle was not permitted to see the child for six months, the trial court reasoned that there would no detriment to denying the uncle's request. The trial court's message to the uncle was clear: you are already out of the picture (by virtue of not living with the child) -- so no detriment to the child. Not only is this an unnecessarily narrow, indeed myopic, approach, it disregards the many different kinds of emotional bonds a child can form with an adult - whether or not they pass the bright line test of living together. As the Court of Appeal made clear in refusing to equate ''stable placement'' with living together, the ''critical distinction is not the living situation, but whether a parent-child relationship has been established.''

The Court of Appeal reversed the trial court's order denying the uncle's request to be deemed a third parent and remanded the case to the trial court for a hearing to reconsider the issue of detriment. In doing so, the Court of Appeal also provided important guidance for the trial court: (1) evaluate the relationship, not the residences; (2) review all factors that define the proposed presumed parent's role in a child's life; and (3) consider whether the recognized societal value of two parents in a child's life can be fulfilled in a meaningful way if the presumed parent's request is denied. Relationships - whether those between spouses or parents and children - cannot be defined by one single factor (here, cohabitation). These relationships are multi-faceted and are established through the existence of numerous factors, and a court's approach to analyzing such relationships should be equally multi-faceted.

As practitioners, we should remember to include all facts that are potentially relevant to a particular request before the court - particularly when dealing with a statute requiring consideration of all factors - because we will never know precisely what fact or facts will sway the court. To add to the framework of our statutes, illustrating the potential third parent's involvement, care and love through vignettes can be very powerful and influence even the toughest judge.

Court Properly Disqualified Attorney Appearing against Former Client in Unrelated Action

Highlight: A trial court acted within its discretion in granting plaintiff's motion to disqualify defendant's attorney, when the attorney had previously represented plaintiff in an unrelated matter while she was romantically involved with defendant, there was evidence that plaintiff shared confidential information about her romantic relationship with the attorney during the previous representation, and the attorney was basing his defense in the current action on the nature of the relationship between plaintiff and defendant.

COMMENTARY by Stacy Phillips and Kevin Martin:

It is not precedent-setting law that an attorney owes his or her client ''undivided fidelity'' both during and after the representation. This duty requires the attorney to refrain from acting for others in any matter in which the client's confidences or knowledge of the client's affairs can be used against the client. Given this long-standing legal precedent, why is it worth reviewing Costello?

The fact pattern in Costello v. Buckley is unique and worth considering when accepting clients in the future. The plaintiff, Leslie, sued her former boyfriend, Peter, to collect money she purportedly loaned him during their relationship. Peter retained his brother, Robert, to represent him in the collection matter. Robert had previously represented Leslie in an unrelated real property matter against a third party, during the course of which Robert learned information about Leslie's relationship with Peter. Based on this prior representation, Leslie moved to disqualify Robert from representing his brother in the collection matter. It was undisputed that the two lawsuits were factually and legally unrelated and that there was no ''presumptive substantial relationship'' between the two suits that would merit the disqualification of counsel. Instead, Leslie provided a declaration under oath that, during the earlier representation, she gave Robert information about her relationship with Peter. Robert did not dispute receiving this information. Leslie argued that the information was confidential, even though it was unrelated to Robert's prior representation of her, and that Robert could use the information to support Peter's argument that the money Leslie gave him was a gift and not a loan. The trial court agreed and disqualified Robert, and the Court of Appeal upheld the disqualification.

Importantly, the Court of Appeal was not persuaded by Robert's argument that he should not be disqualified because Leslie did not need to use any information about her relationship with Peter to prevail in her collections case. Instead of using the traditional test, which considers whether the legal or factual issues in the two cases are substantially similar, the Court based its disqualification decision on the fact that ''Robert may have acquired information that could be used against Leslie in his subsequent representation.'' The Court of Appeal was clear that for disqualification purposes, a showing that the information acquired was actually used in the subsequent representation is not required -- all that is required is a showing that the information ''could be'' used.

In this case, the need to disqualify Robert was clear from the Request for Admissions, by means of which Robert attempted to establish that, based on Leslie's and Peter's prior romantic relationship, Leslie gifted the money to Peter. However, most cases are not as clear as Costello and it is important to remember that the direct linkage that existed between Leslie's disclosure and Robert's grounds for defense is not a prerequisite for disqualification. All that is required is a showing that the lawyer may have received information that could be used.

What is the lesson to be learned from Costello? Firms are built on the cases they turn down, just as much as the cases they take. Attorneys must choose their clients carefully and strategically. We are all routinely asked to assist family and friends with legal issues. We may even allow ourselves to be retained on a small matter, believing that it costs very little to grant a favor to a friend. Now, imagine that Peter and Leslie were married and Robert represented Leslie in a small real estate transaction and over time Leslie shared information with Robert about her marriage issues with Peter. If Peter subsequently filed for divorce, under Costello, Robert could be disqualified from representing his brother in the dissolution proceeding based simply on what Robert may have perceived as listening to his sister-in-law vent -- an unwanted outcome for both Peter and Robert.

As shown in Costello, disqualification may be based on information unrelated to the representation, including casual small talk between lawyer and client. This leads to another the thorny question: when does the attorney client relationship begin? Think about how many times you are at a social event and someone wants to bend your ear because you are a lawyer. If in that very casual conversation information is passed from the ''client'' to the ''lawyer'' and that information could later be used against the ''client,'' that attorney and that attorney's law firm, by extension, could be barred from taking on a matter averse to that ''client.''

This is a real concern for divorce lawyers, because seemingly everyone asks for divorce advice once our profession is known. So, that annoying man or woman who won't stop asking questions at a social event could very easily interfere with your future representation of his or her spouse or partner.

The takeaway from this commentary is to think before having a casual conversation and before jumping into any representation simply to help a family member or friend. Before agreeing to this representation, it is worth spending a few minutes considering whether the representation could run counter to your firm's strategic goals and result in breeding unwanted conflicts and harming your practice in the long run. And remember, the threshold is whether the attorney may have acquired information that could be used against the prior client, not whether that information was actually used.

Reprinted from California Family Law Monthly with permission. Copyright 2016 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved.