I'm always interested in published opinions that involve lawsuits against lawyers. Doubly so when the case involves a lawsuit against a big law frim -- here, against Cooley. And triply so when the opinion is written by the 4/1 down and arises down here in San Diego.
Hence my particular interest in this opinion earlier today. Which, as an added bonus, involves core issues of legal ethics, which is a particular interest and expertise of mine.
Justice Irion's opinion affirms the trial court's grant of summary judgment to Cooley, and her analysis seems exactly right to me. A huge problem for the plaintiff is that he admitted at his deposition that Cooley "made clear" to him that it believed (perhaps accurately) that it did not represent him, and that he was instead represented solely by his own lawyer. Once you say that in your deposition, you're hard pressed to submit a contrary (inadmissible) declaration that, as here, contradicts your deposition testimony. No representation, as a general matter (albeit with important exceptions), means no duty.
It also hurts plaintiff that their declaration from their legal ethics expert got excluded below, as well as how the plaintiff (and his counsel) attempted to address that issue on appeal. Here's what the Court of Appeal says on that front: (Plaintiff's legal ethics expert was a California lawyer, Edward McIntyre.)
"To support his contention that Cooley owed him a fiduciary duty, De Meo also relies, in extremely general terms, on the McIntyre Declaration.
De Meo has not pointed us to any specific item in the McIntyre Declaration that he wants us to consider in support of his appeal. Instead, De Meo’s opening appellate brief refers, sweepingly, to paragraphs 138 through 202 of the McIntyre Declaration and states, without elaboration, that “McIntyre’s opinions demonstrate the existence and breach of fiduciary duty, along the same lines as the issues discussed” in the section of De Meo’s brief that discusses the manner in which Cooley allegedly violated the Rules of Professional Conduct. We are not required to search the record to develop De Meo’s arguments for him. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [“The reviewing court is not required to develop the parties’ arguments or search the record for supporting evidence and may instead treat arguments that are not developed or supported by adequate citations to the record as waived.”].)
However, even if De Meo had identified any particular part of the McIntyre declaration that he wants us to consider, Cooley filed objections to large portions of the McIntyre Declaration, and the trial court sustained all of those objections. De Meo contends that the trial court erred in sustaining Cooley’s objections to the McIntyre Declaration. However, De Meo fails to develop the argument by directing us to any specific objections that he believes were improperly sustained. Instead, in a cursory argument, De Meo contends that the trial court erred, across the board, in sustaining all of Cooley’s objections."
That's not good enough. Which means, in the end, that summary judgment gets affirmed.
Did Cooley, in my view, make a mistake? Definitely. For one thing, no way should it have talked to De Meo without his lawyer present (and without the lawyer's consent) during the transaction. That's arguably (indeed, typically) a violation of the ethical rules, and it also led (in my view) directly to the lawsuit here. It also left Cooley open to De Meo claiming that Cooley told (or implied to) him that it was his lawyers. Cooley's just lucky that De Meo said what he did in his deposition. Had De Meo not done so, this case could easily have gone the other way.
Lesson of the day: Don't talk to a represented party without the other lawyer's consent (and, hopefully, presence).
