Mediation Of Dispute Between Brothers Drew Our Attention To This Case.
Jogani v. Jogani, B268162 (2/1 11/25/16, mod. 11/28/16) (Chaney, Rothschild, Johnson) (unpublished) is about attorney disqualification and conflicts. The underlying dispute among the Jogani brothers appears to have been sliding up and down the California courts for fifteen years, involving a number of reversals by the Courts of Appeal. Perhaps the intensity of the brotherly dispute about how to carve up profits of a real estate portfolio has been fueled by “apartment units with a value in excess of $1 billion and equity of around $550 million.”
What caught my attention was that the transactional attorney who initially represented Shashikant and Haresh Jorgani in their real estate matters “at first attempted to mediate the dispute between the brothers, but ultimately ceased representing Haresh and continued representing only [Shashikant] Jogani by assisting Jogani’s trial attorneys . . . “ An attorney who tries to mediate a dispute between clients steps into a perilous situation. As the saying goes, “no good deed goes unpunished.” Resulting conflicts can become a quagmire.
In a prior appeal, the Court held that the transactional attorney violated the Rule of Professional Conduct governing concurrent conflicting representation, that subsequent representation of Shashikant only, violated the ethical rule against successive conflicting representation, and that as a result, the transactional attorney was disqualified from representing.
In the current appeal, the issue was whether the transactional attorney’s disqualification required that the trial attorneys to whom the transactional attorney transferred his file also had to be disqualified.
While the disqualification of the transactional attorney would have resulted in the vicarious disqualification of his own law firm, it did not lead here to the disqualification of the law firm to whom he transferred files. The record showed the transactional attorney had only assisted “to prosecute the lawsuit” by facilitating the retention of the trial attorneys and delivery of files to the law firm. While that was enough to disqualify the transactional attorney, it was not enough to disqualify an independent law firm that did not employ him. “To hold otherwise would be to disqualify not only a conflicted attorney but also any subsequent attorney to whom he delivered the client’s file.”
COMMENT: Rather than try to mediate a dispute among two existing clients, the transactional attorney could have suggested that the clients retain independent counsel and try mediating with someone other than himself. Of course, given a soured relationship among the parties, legal nuclear warfare might still have been the unhappy result.
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