Wednesday, April 30, 2008

Luce Forward v. Koch (Cal. Ct. App. - April 30, 2008)

Sure, I've been listed (as most of us have) on the counsel line in a variety of published appellate opinions. And my academic pieces are occasionally cited by courts, so my name appears there as well. But I've never been singled out by name in the text of a published opinion. So, as of today, my former student Todd Kinnear -- an attorney at Luce Forward -- has me beat on that one.

It's actually an interesting case, and mentions by name a number of other notable San Diego legal figures in the text of the opinion as well. Basically it's an opinion about challenges to arbitrators. Justice McConnell holds -- sensibly, I think -- that even though an arbitrator can be dismissed as a matter of right based upon a variety of compelled legal disclosures (significant business ties, attorney-client or familial relationship, etc.), there's no similar absolute right to dismiss an arbitrator based upon voluntary disclosures made by the arbitrator about his or her connections to various parties or counsel beyond those required by law. And this matters, since the common practice among informed arbitrators is to make as full and complete a disclosure as possible, even if it involves totally minor things that don't especially matter. To grant a party an absolute right to dismiss the arbitrator based upon those things seems wrong, and it instead seems better to strike the balance in favor of a discretionary recusal (pursuant to the judgment of the arbitrator or some other neutral) for those more minor nonmandatory disclosures.

So, here, it's an attorney fee arbitration before former Judge Haden, who works with JAMS. Not surprisingly, Judge Haden knows a wide variety of people at Luce Forward, who's suing the defendants for unpaid legal fees. So he makes a variety of disclosures, and, later on, when additional attorneys at Luce appear on various briefs, he makes additional disclosures as well, including that he was on the Board of the ABTL with a couple of them. This, as you might imagine, is fairly common in the relatively close-knit legal community in San Diego, at least amongst higher profile judges and attorneys. Defendant then moves to dismiss Judge Haden, he declines to let them do so, and then, after Judge Haden finds for Luce Forward in the arbitration, the defendant appeals on the ground that Judge Haden had an obligation to step aside.

To which the Court of Appeal demurs, saying that "Judge Haden's candor was commendable" -- always gotta love being complimented by the Court of Appeal, eh?! -- and that "arbitrators should, of course, be encouraged to err on the side of disclosure," but holding that the voluntary disclosures by Judge Haden did not give rise to an absolute right to dismiss him (e.g., would not create an impression of bias to a reasonable person). Which, as a policy matter, I think does encourage extensive voluntary disclosures by arbitrators, and I agree with Judge McConnell wholeheartedly that that's a good thing, and something that the law should advance.

My former student was mentioned multiple times in the opinion since his name was on the briefs and Judge Haden thought that he -- not those lawyers at Luce Forward with whom Judge Haden had a more extensive relationship -- was going to be the lead counsel at the arbitration. Which, I might add, would assuredly have been an equally smashing success for Luce Forward had Todd in fact been lead counsel, since he was a great student and is, I am confident, an utterly outstanding attorney. So that's the nature of Todd's brush with fame -- and, more importantly, his entrenchment in the California Appellate Report and California Reporter for all eternity.

So great job Luce Forward, great job Justice McConnell, great job Judge Haden, and great job Todd.

FULL DISCLOSURE: Especially since the underlying case is all about full and frank disclosure, I too should voluntarily reveal that I'm connected with just about every one of the participants here as well. As I said, Todd Kinnear is a former student, and I (obviously) know a variety of former students and others at Luce Forward as well. Plus, continuing on the student side, Judge Haden's son, Andrew, is a former student of mine (and, parenthetically, like Todd, is also exceptionally talented) as well. Lastly, I also know Judge Haden, who presided over a case on which I worked several years ago and who is, ironically enough, the arbitrator on an upcoming case I'm working on as well. None of which matters in the slightest, but I thought I'd mention them. Oh, one more thing. Todd's even balder than I am.