P. v. Stender
Filed 12/4/12 P. v. Stender CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE
ex rel. DENNIS J. HERRERA, as City Attorney, etc.,
Plaintiff and Respondent,
v.
CHRISTOPHER
STENDER et al.,
Defendants and Appellants.
A131625
(City and County
of San Francisco
Super. Ct.
No. CGC-10-505449)
This
appeal challenges a preliminary injunction requiring appellants, an immigration
lawyer and law firm, to provide notice to certain clients that another lawyer
who had been employed by the firm had resigned from the bar with disciplinary
charges pending and was not authorized to practice law. Appellants contend the injunction should not
have been granted because the statutes and rules they were alleged to have
violated do not apply to them; the required notice was inaccurate and would
cause harm to them and their clients; they were precluded from presenting
evidence in their defense by their obligation not to violate attorney-client
privilege and their clients’ rights to privacy; and the events underlying the
allegations against them were no longer occurring and unlikely to occur in the
future. We will affirm.
STATEMENT OF THE
CASE AND FACTS
Martin Resendez Guajardo
was the president, treasurer, secretary and sole shareholder of an immigration
law practice originally named “Martin Resendez Guajardo, A Professional
Corporation.†In 2008, Guajardo resigned
from the California State Bar with disciplinary
charges pending,
name="_ftnref1" title="">[1]
making him ineligible to practice law, and attorney Christopher Stender
acquired the law practice. Stender
became a shareholder, along with Guajardo, effective April 8, 2008. On April 14,
2008, Guajardo changed the name of the law firm to “Immigration
Practice Group, P.C.†(“IPGâ€). On April 16, 2008, the California
State Bar certified that IPG was registered as a law corporation. Effective April 17, Stender replaced
Guajardo as president, treasurer and secretary of IPG. Also on April 17, Guajardo’s formal
letter of resignation was filed with the State Bar.
shareholder. Stender is a member of the
state bars of New York and Connecticut
and admitted to practice before the United States Court of Appeals for the
Ninth Circuit and other federal courts;
he is not a member of the California State Bar.
On November 17, 2010, the People
of the State of California filed
a complaint against Guajardo, Stender and IPG, alleging they engaged in
unlawful, unfair and deceptive business practices in violation of Business and
Professions Code
title="">[3]
section 17200, based on Guajardo’s unauthorized practice of law.
his resignation from the bar, Guajardo continued his legal practice, aided and
abetted by Stender and IPG; that the defendants failed to give required notice
to clients and other entities of Guajardo’s resignation and the activities he
was prohibited from performing, and affirmatively led clients to believe
Guajardo was in charge of their cases; and that the defendants engaged in
representation of clients in immigration matters.
IPG were perpetuating a massive fraud, taking thousands of dollars under false
pretenses from vulnerable and desperate immigrants in custody or facing
imminent deportation and typically providing no services of value. The People sought relief including an order
under sections 17203 and 17204 enjoining defendants from performing the
unlawful acts described in the complaint and an injunction prohibiting them
from continuing their unlawful and unfair activities and financial
penalties. Citing the “imminent danger
to the People each day Martin Guajardo continues to hold himself out as a
lawyer, and Immigration Practice Group and Christopher Stender allow
Guajardo to do so,†the People sought an Order to Show Cause Re Preliminary
Injunction.
In support of the
application for a preliminary injunction, the People submitted declarations
from a number of clients who worked with Guajardo after his April 17, 2008, resignation from
the bar. Most of these clients had hired
Guajardo prior to his resignation, but a few first hired him afterward. All continued to work with Guajardo in the belief
he was their attorney after April 2008 and declared that neither Guajardo nor
anyone at IPG told them Guajardo resigned from the bar and was not authorized
to practice law. Maria Hernandez,
who first met with Guajardo in June 2010, declared that Guajardo told her that
he was the head of the firm and directed and supervised the lawyers, who
followed his orders. When
Jagdeep Singh asked after hearing in the community that Guajardo had been
suspended, Guajardo said it was only a one to two month suspension, Singh
should not worry and “I’m still you’re [sic] attorney and I’ll take care of
your case.â€
According to the
clients’ declarations, Guajardo ran the clients’ meetings and was the one who
discussed the case and legal strategy. Jaime Hernandez stated that in January
2009, Guajardo introduced him to Stender, saying he was retiring and
transferring his practice to Stender, but Guajardo remained the only person who
discussed Hernandez’s case with him.
Hernandez’s son, who had been deported and whom Hernandez had hired
Guajardo to help, spoke with Guajardo by phone every few months and formed the
impression that Guajardo was the head of the office and had people, including
Stender, working for him. Mynor Andrade
declared that when the name of the practice changed to IPG, Guajardo stopped
signing the correspondence Andrade received and most of the staff changed;
Guajardo introduced Stender and Martin Robles and told Andrade his firm
had merged with Stender’s and there would now be a team of lawyers working on
the case. When Andrade asked who was his
lawyer, Stender pointed at Guajardo and said, “ ‘He’s still your guy. We’re just here to help.’ †Subsequently, Guajardo’s treatment of Stender
led Andrade to believe Stender was Guajardo’s subordinate. Magnolia Martinez
declared that Guajardo acted like the head of the office, giving orders to
other employees and attorneys.
Denise Escober stated that Guajardo gave orders to employees while
Stender seemed more like a secretary than a lawyer. A law student who accompanied one of the
clients to a meeting with Guajardo declared that he ran the meeting and gave
orders to staff, including orders to implement a legal strategy he came up
with. Clients observed that Guajardo was
always busy with other clients when they went to see him.
The clients’
declarations also described Guajardo taking substantial sums of money but
providing little in services.
Maria Hernandez stated that after Guajardo promised to get her
daughter out of detention and obtain legal status for her, and collected
$5,000, no one from the office ever talked to the daughter or assisted at her
immigration interview or hearing, and the daughter was deported. Jagdeep Singh terminated his
relationship with Guajardo after three years, having paid $95,000, because
Guajardo made promises but did nothing on his case. Guajardo told Balbir Singh it would cost
$15,000 for him to get Singh a green card and Singh had paid $5,000 by the time
he discovered Guajardo was not licensed and consulted another attorney. Singh was not aware of Guajardo or anyone at
the firm having filed any document on his behalf. Jaime Hernandez described the
unsuccessful actions Guajardo’s firm took on his son’s case and stated that an
attorney he subsequently contacted filed a successful motion to reopen based on
Stender having provided ineffective assistance of counsel. Mynor Andrade and his family paid
Guajardo $20,000 to obtain his and his brother’s release from immigration
custody, then an additional $19,500 on Guajardo’s assertion that he could
obtain permanent resident status for the brothers. Guajardo continually assured Andrade he would
be successful, but the motions and petitions Guajardo, Stender and another IPG
attorney filed on Andrade’s behalf were unsuccessful and an attorney Andrade
subsequently consulted told him at least one of these petitions had little or
no chance of success.
Denise Escober paid Guajardo $35,000 to $40,000 to help her husband
obtain a green card and Guajardo told them he would file a document that would
guarantee her husband could stay in the United
States for another three to five years, but
her husband was deported a year later.
Additionally, the
clients declared that they discussed legal fees with Guajardo and paid him
directly. Several clients stated that
after they fired Guajardo, the files returned to them were incomplete.
The trial court
filed its Order to Show Cause on November 22,
2010, setting the matter for December 21, 2010.
Efforts to personally serve Guajardo were unsuccessful.
On
December 13, Stender and IPG filed a Notice of Removal of Action to
federal court on the ground that the case involved a federal question—the
regulation of attorneys and practitioners in federal courts and federal
immigration courts and administrative agencies.
The action was remanded to state court on January 7, 2011.
Stender and IPG
then filed objections to the People’s evidence in support of the application
for a preliminary injunction, together with documents including letters
attesting to Stender’s character and legal skill, and declarations stating that
Guajardo did not work as an attorney for IPG and clients were informed that
they were represented by other IPG attorneys.
Two attorneys who
worked for Guajardo’s law office and then for IPG, Teresa Salazar-Cosmos
and Martin Robles-Avila, declared that they worked with clients directly
without Guajardo being present and, when Guajardo was at client meetings, he
told the clients that he was not their attorney and that one of the IPG
attorneys present was their counsel.
Robles-Avila stated that Guajardo often told his former clients that he
had sold the firm to Stender and was no longer representing the clients. In early October 2010, Guajardo told
Salazar-Cosmos he was leaving IPG and moving away from San
Francisco; she had not seen him since. Robles-Avila, who left IPG in April 2010 and
moved to Los Angeles, had not seen
any member of the Guajardo family since May 2010.
Stender’s
declaration described his legal career and stated that he had a good reputation
and had never been suspended, sanctioned, reprimanded, or convicted of any
felony or state bar violation. He was a
resident of San Diego County
and a partner in the law firm of Stender & Lappin, P.C., Attorneys at Law, with
offices in San Diego and Phoenix.
Stender stated
that IPG hired Guajardo to “help in the transition of the previous client files
and case histories of those clients, to offer to the attorney staff of IPG his
information, knowledge, research and experience in immigration matters, and to
offer updates on client files as he was assisting the IPG attorney.†According to Stender, Guajardo was not hired
as an attorney or authorized to engage in activities that might constitute the
practice of law, and clients were advised that Guajardo was not an
attorney. It was IPG’s policy, and to
Stender’s knowledge its practice, not to have Guajardo meet with any client
privately, or without an IPG licensed attorney present when any client
information was being discussed, and to Stender’s knowledge, Guajardo never met
with any client without one of the IPG attorneys present while discussing
client information. This policy was
enforced in general and in particular with each of the persons whose
declarations were submitted by the People.
Stender stated that there had never been any determination that unearned
fees were charged to these declarants and there were clear instructions that
Guajardo was not to handle fees from IPG clients. IPG attorneys did not take orders or
directives from Guajardo. Guajardo’s
association with Stender and IPG ended in October 2010, when Guajardo left the
firm and told Stender he had moved out of San Francisco;
Stender had not seen Guajardo at his offices since, and did not know his
whereabouts.
Stender further
declared that prior to the filing of the complaint, he had no notice that there
were any complaints about IPG employing Guajardo and no official agency had
informed him or IPG that it believed any of the alleged violations were occurring. Soon after the City Attorney’s press
conference about this case on November 17,
2010, the attorneys and most of the support staff left IPG, leaving
Stender as the only attorney. IPG closed
its office at 555 Clay Street,
vacated the premises, and ceased active operation as a law firm after December 15, 2010. Since then, Stender had been working with
former IPG clients to ensure they were represented by other attorneys or by
Stender’s immigration law firm.
name="_ftnref6" title="">[6]
None of the
attorneys representing the former IPG clients employed Guajardo, and neither
Stender, his law firm nor any attorney associated with him intended to have any
future association with Guajardo in any capacity. Stender declared that the People’s declarants
were advised that Guajardo was not a licensed attorney and did not represent
them, that their files had been transferred to IPG and that Stender or other
attorneys in the office were handling their files.
According to
Stender, because Guajardo was no longer associated with IPG or its clients and
Stender and his associates had no intent to associate with Guajardo in any way,
there was no possibility of continuing harm that would justify the requested
preliminary injunction. Stender urged
that the notices the People requested to be posted or sent to present clients
would “have an irreparable and chilling effect on their cases, especially in
that many would wish not to give any information to any agency that may be able
to prosecute them or that might have the ability to forward information to the
Department of Homeland Security, or that becomes available to other prosecuting
offices to review.†According to
Stender, “[a]ll information concerning a client’s name, address, etc. would
divulge their whereabouts to Immigration and Customs Enforcement†and any act
that caused him or his firm “to make such information available would, in
effect, place me in an impossible ethical dilemma and cause the practical
effect of preventing me from the practice of law for my clients[,]†causing
irreparable harm to him and his clients.
Stender’s
declaration also responded to the declarations of the former clients, although
Stender noted that he could not “fully respond†without violating
attorney-client privilege. In essence,
Stender stated that actions attributed to Guajardo were in fact taken by
licensed IPG attorneys, as evidenced, for example, by pleadings and other
documents signed by those attorneys; that the clients were informed of
Guajardo’s inability to practice law; that Guajardo did not run client meetings
or direct other attorneys; and that fees were paid to IPG, not Guajardo. Stender stated it was IPG’s practice to
provide all clients with a copy of the March 5,
2008, order suspending Guajardo from practice before the Board of
Immigration appeals, Immigration Court
and Department of Homeland Security.
Appellants submitted copies of the March 5, 2008, order signed by several of the
declarant clients in April and May 2008.
In response to
appellants’ showing, two of the clients whose signatures appear on copies of
the March 8 order stated that they recognized their signatures but did not
recall signing the document or having it explained to them. Ledezma-Galvan stated that she is unable to
read, write or speak English and until the document was translated for her in
2011, no one had ever translated or explained its contents to her. Andrade stated that Guajardo would give him
several documents to sign at one time, explaining generally that they would be
filed with the immigration service or the court but not reviewing each document
separately. Jagdeep Singh’s wife
declared that the document was not explained to him at any time when she was
present, and that he was often given multiple documents to sign without the
documents being individually explained.
Richard Kung,
an investigator for the San Francisco City Attorney’s Office, called IPG on November 9, 2010, in an effort
to determine whether it would be possible to serve Guajardo at the office. He asked for an appointment with Guajardo and
was told there was no appointment available on the date he requested but one
could be scheduled on a different date.
He was not told that Guajardo had left IPG. On November 17, Kung went to the IPG
offices, asked for Guajardo and was told he was not in and would not return for
months but Kung could talk with Guajardo’s wife. Kung left the summons and complaint with a
man who introduced himself as the office secretary. Two days later, when Kung returned and asked
for Guajardo, he was told Guajardo was not in but was not told he was no longer
associated with the firm. Later that
day, Kung returned and asked for Guajardo again, and was told Guajardo would
return to the office in three weeks.
The hearing on the
motion for a preliminary injunction was held on March 7, 2011.
The court found that the People had established a likelihood of success
on the merits, as least with respect to failures to properly notify clients of
Guajardo’s resignation, and that the balance of prejudices supported issuing
the injunction. After going through the
specific language of the proposed injunction and ordering certain
modifications, the court directed the People to submit a revised order for its
signature. At Stender’s request, the
court ordered a stay for 10 days following the entry of the order.
On March 16,
the People filed notice of ex parte application for a signed order, stating the
parties had been unable to agree on modifications that Stender proposed and the
People maintained should have been raised at the March 7 hearing. The order granting the preliminary injunction
was filed on March 17. The court
found that the People had presented sufficient evidence they would likely
prevail on the merits of their claims that IPG is bound by the same Rules of
Professional Conduct as individual members of the bar; that IPG violated Rules
of Professional Conduct, rule 1-311(D),
by failing to provide the State Bar with written notice that it employed a
resigned member and acknowledgment that Guajardo would not engage in prohibited
activities; that IPG violated sections 6180 and 6180.1 by failing to
provide notice of Guajardo’s resignation to Guajardo’s clients, opposing
counsel, courts and agencies in which Guajardo had pending matters or the Chief
Counsel of the State Bar; that IPG violated rule 1-311(D) by failing to
provide each client whose case Guajardo worked on with written notice of its
employment of a resigned member and of the activities in which that person was
prohibited from engaging; that IPG violated rule 1-300(A), sections 6125,
6126 and 6133, and 8 C.F.R. § 1003.102(m) by aiding and abetting
Guajardo’s unauthorized practice of law; and that IPG violated Penal Code
section 653.55 and 8 C.F.R. § 1003.102(f) by failing to inform
Guajardo’s clients that he was no longer an attorney and inducing clients to
rely upon Guajardo for legal advice and representation. The court found sufficient evidence that the
People would likely prevail on their claims that Stender controlled the business
practices of IPG and its employees and associated attorneys; that Stender
engaged in unlawful and unfair business practices in violation of Business
& Professions Code section 17200 by causing IPG to fail to provide
written notice to the State Bar of its employment of a resigned member and to acknowledge
that Guajardo would not engage in prohibited activities, in violation of rule
1-311(D), failing to provide notice of Guajardo’s resignation to his clients,
opposing counsel, courts and agencies in which he had pending matters, or the
Chief Counsel of the State Bar, in violation of sections 6180 and 6180.1,
and failing to provide each client on whose case Guajardo worked written notice
of its employment of a resigned member, in violation of rule 1-311(D);
that Stender aided and abetted Guajardo’s unauthorized practice of law in
violation of rule 1-300(A), sections 6133, 6125 and 6126, and
8 C.F.R. § 1003.102(m); and that Stender violated Penal Code
section 653.55 and 8 C.F.R. § 1003.102(f) by failing to inform Guajardo’s
clients that he was no longer an attorney and inducing Guajardo’s clients to
rely on him for legal advice and representation.
The court found
the preliminary injunction necessary “to protect individuals in need of legal
advice from seeking assistance from Martin R. Guajardo in the
mistaken belief that he is a licensed attorney,†to “ensure that Defendants
Stender, and IPG comply with their obligations to notify clients that Guajardo
is no longer licensed to practice law,†and to “ensure that IPG and Stender no
longer aid and abet the unauthorized practice of law by Guajardo.â€
The injunction
required Stender and IPG to provide two copies of a specified notice to all
clients
by first class mail within 30 days of the date of the order, together with a
self-addressed stamped envelope, and to keep all returned copies of the notice
until one year after the conclusion of the litigation. The notice states in large, boldface type
that Guajardo is not a lawyer, describes the circumstances of his resignation,
lists six actions Guajardo is prohibited from taking on the client’s behalf,
and advises the client of his or her right to fire Guajardo and secure return
from him and IPG of all unearned fees and the client’s entire case file. The notice states that the San Francisco
Superior Court has ordered Stender and IPG to send it and asks the client to
sign and return to IPG a verification that he or she understands that Guajardo
is not a lawyer and may not help with his or her legal case.
translations of the notice into Spanish, Hindi and Chinese by court certified
translators, within 15 days of the date of the order, and include these
translations in the mailings to clients; to make reasonable efforts to locate
and re-send the notice to any client whose notice is returned as undeliverable;
within 15 days of the order, to personally hand the notice to clients who meet
with Stender or any associated attorney, and, within five days of the order, to
remove Guajardo’s name from all advertising and promotional material used by
IPG. The order further directs IPG and
Stender to immediately cease and desist from assisting Guajardo in the
unauthorized practice of law, to not allow Guajardo to meet alone with persons
seeking legal advice or to engage in the unauthorized practice of law, and, in
the event of a client terminating his or her relationship with IPG, Stender or
Guajardo, to return the client’s entire file within two weeks, including all
original documents and photographs.
Stender and IPG
filed a timely notice of appeal on March 25,
2011.
DISCUSSION
Appellants
contend the injunction was moot when issued because Guajardo had left IPG and
IPG had ceased operations, and the notice required by the injunction would
irreparably harm IPG, Stender and their clients. Additionally, appellants argue the injunction
should not have been issued because IPG and Stender were ethically precluded
from presenting evidence in their defense by their obligation to maintain their
clients’ privacy and attorney-client privilege.
Finally, appellants maintain that the injunction was improperly based
upon alleged violations of the California State Bar Act Rules, which should be
enforced through the court’s regulatory systems rather than the Unfair
Competition Law (UCL).
“ ‘The law is well settled that the decision to grant a
preliminary injunction rests in the sound discretion of the trial court.’ (IT
Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.) ‘A trial court will be found to have abused
its discretion only when it has “ ‘exceeded the bounds of reason or
contravened the uncontradicted evidence.’ †’ (Ibid.) ‘Further, the burden rests with the party
challenging the [trial court’s ruling on the application for an] injunction
to make a clear showing of an abuse of discretion.’ (Ibid.) “ ‘[T]rial courts should evaluate two interrelated factors when deciding
whether or not to issue a preliminary injunction. The first is the likelihood that the
plaintiff will prevail on the merits at trial.
The second is the interim harm that the plaintiff is likely to sustain
if the injunction were denied as compared to the harm that the defendant is
likely to suffer if the preliminary injunction were issued.’ (IT
Corp. v. County of Imperial, supra, 35 Cal. 3d at pp. 69-70.)
“An appeal from an order granting a preliminary
injunction involves a limited review of these two factors—likelihood of success
on the merits and interim harm. If the
trial court abused its discretion on either factor, we must reverse. (Carsten
v. City of Del Mar (1992) 8 Cal.App.4th 1642, 1649.)†(
37 Cal.App.4th 618, 624-625 (Shoemaker).)
On appeal, we do not reweigh
credibility of witnesses; we only determine whether, interpreting the facts in
the light most favorable to the prevailing party and indulging all reasonable
inferences in favor of the trial court’s order, the trial court’s factual findings
are supported by substantial evidence. (
p. 625.) With respect to the
construction of statutes, however, our standard of review is de novo. (Davenport
v. Blue Cross of California (1997) 52 Cal.App.4th 435, 445.)
“ ‘Where,
as here, the preliminary injunction mandates an affirmative act that changes
the status quo, we scrutinize it even more closely for abuse of
discretion. “The judicial resistance to
injunctive relief increases when the attempt is made to compel the doing of
affirmative acts. A preliminary
mandatory injunction is rarely granted, and is subject to stricter review on
appeal.†’ (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286,
295, fn. omitted.) The granting of a
mandatory injunction pending trial ‘ “is not permitted except in extreme
cases where the right thereto is clearly established.†’ (Ibid.,
quoting Hagen v. Beth (1897)
118 Cal. 330, 331.)†(
p. 625.)
Additionally,
“[i]njunctive relief is appropriate only when there is a threat of continuing
misconduct.†(Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440,
463.) “[T]he general rule is that an
injunction may not issue unless the alleged misconduct is ongoing or likely to
recur. . . . ‘Injunctive
relief has no application to wrongs which have been completed [citation],
absent a showing that past violations will probably recur. [Citation.]’ (People v. Toomey [(1984)] 157 Cal.App.3d
[1,] 20.)†(Madrid v. Perot Systems Corp., supra, 130 Cal.App.4th at
pp. 464-465.) Thus, while a trial
court has broad authority to enjoin conduct that violates section 17200,
“in order to grant injunctive relief under
section 17204 . . ., there
must be a threat that the wrongful conduct will continue. ‘Injunctive relief will be denied if, at the
time of the order of judgment, there is no reasonable probability that the past
acts complained of will recur, i.e., where the defendant voluntarily
discontinues the wrongful conduct.’ (
Union Oil Co. [(1991)] 232 Cal.App.3d [44,] 57; see
LLC [(2005)] 134 Cal.App.4th [997,] 1012 [under § 17203, the
‘ “injunctive remedy should not be exercised ‘in the absence of any
evidence that the acts are likely to be repeated in the future’ †’];
Stern, Bus. & Prof. C. § 17200 Practice [(The Rutter Group 2005)]
¶ 2:36, p. 2-10, fn. 27.)â€
(Colgan v. Leatherman Tool Group,
Inc. (2006) 135 Cal.App.4th 663, 702.)
“Finally, our decision does not constitute a final
adjudication of the ultimate rights in controversy. (See Cohen
v. Board of Supervisors (1985) 40 Cal.3d 277, 286;
215 Cal.App.3d 1034, 1039-1040.) In
reviewing the propriety of a ruling on an application for a preliminary
injunction, we merely decide whether the trial court abused its discretion
based on the record before it at the time of the ruling.†(
pp. 625-626.)
I.
Appellants
argue that the injunction should not have been granted because it was based
upon alleged violations of statutes and regulations that do not apply to them
and constitutes an improper attempt to regulate a law practice. With respect to appellants, the unlawful
practices alleged under section 17200 included violations of provisions of
the State Bar Act (§§ 6180, 6180.1, 6132 and 6133), Rules of Professional
Conduct (rules 1-300(A), 1-311(B),1-311(D), 1-311(F), 1-320(A) & 2-200(A)),
federal regulations (8 C.F.R. §§ 1003.102(f), 1003.102(m)) and Penal
Code section 653.55.
Appellants
urge that violations of the Rules of Professional Conduct do not support a
cause of action. Rule 1-100
provides that the rules “are intended to regulate professional conduct of
members of the State Bar through discipline†and “are not intended to create
new civil causes of action. Nothing in these rules shall
be deemed to create, augment, diminish, or eliminate any substantive legal duty
of lawyers or the non-disciplinary consequences of violating such a duty.†Accordingly, violation of a rule of
professional conduct cannot, in and of itself, serve as the basis for a damages
award. (Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1484;
100 Cal.App.4th 736, 746; Mirabito v.
Liccardo (1992) 4 Cal.App.4th 41, 46.)
Violation of the rules can be used, however, to establish a breach of
fiduciary duty. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097;
at pp. 45-46.) Similarly, here, the
complaint does not allege any independent cause of action for breach of a rule
of professional conduct. Rather, the complaint alleges unlawful
business practices under section 17200, using violation of the Rules of
Professional Conduct as a measure of the unlawful practice. (See, Mirabito
v. Liccardo, supra, 4 Cal.App.4th at p. 46.) It is well established that a
section 17200 claim may be based on violation of a statute that the
plaintiff could not directly enforce with a private action. (Stop
Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553,
562.)
Appellants
further urge that the injunction cannot be based upon violation of the State
Bar Rules because neither Stender nor IPG are members of the State Bar. IPG, however, is a registered California law
corporation. Section 6167
provides: “A law corporation shall not
do or fail to do any act the doing of which or the failure to do which would
constitute a cause for discipline of a member of the State Bar, under any
statute, rule or regulation now or hereafter in effect. In the conduct of its business, it shall
observe and be bound by such statutes, rules and regulations to the same extent
as if specifically designated therein as a member of the State Bar.†Appellants view section 6167 as solely a
rule for discipline that does not make the corporation a member of the State
Bar. In a different context, the
Attorney General has taken the opposite view.
Opining that a law corporation is exempt from a requirement to register
as a tax preparer from which a member of the State Bar would be exempt, the
Attorney General stated, “Since section 6167 specifically designates law
corporations as members of the State Bar and inasmuch as law corporations are
registered with the State Bar and are entitled thereby to practice law it is
concluded that a law corporation is a ‘member of the State Bar’ within the
meaning of section 9891.2 subd. (b) and is exempt from registration as a
tax preparer.â€
(58 Ops.Cal.Atty.Gen. 665 (1975).)
The logic expressed in this opinion holds in the present context as
well. As a law corporation entitled to
practice law in California, IPG is bound to adhere to the rules an individual
member of the bar would be required to follow.
Appellants
offer Olson v. Cohen (2003)
106 Cal.App.4th 1209 as supporting their position that IPG could not
violate a State Bar rule because it was not a member of the California Bar and
not subject to discipline for violating such a rule. Olson
upheld the dismissal of a suit under the UCL in which clients sought
disgorgement of fees from a law corporation that had failed to register with
the State Bar as required by law.
Appellants emphasize the Olson court’s
statement that “[i]ncorporation is not undertaken for the protection of
clients†and that failure to comply with laws governing incorporation of law
corporations “may result in an order to cease and desist or suspension or
revocation of registration.†(
to the present case. There, the
corporation registered before the complaint was filed and there were no
allegations that clients had relied upon the corporate form in seeking legal
services or been injured by the corporation’s delay in registering. (Id.
at p. 1214.) Here, respondents are
not attempting to use the UCL to remedy a technical violation of the laws
governing the corporate structure but rather to remedy an alleged fraud
committed by the corporation and its officers and employees.
Rule 1-311
prohibits a bar member from employing a resigned (or disbarred, suspended, or
involuntarily inactive) bar member to provide legal services for clients
(rule 1-311(B)) but permits the employment of a resigned member to perform
specified non-legal and preparatory activities (rule 1-311(C)). In the event of such employment, the bar
member is required to notify the State Bar, and each client upon whose matter
the employee will work, of the employee’s current bar status, and state that
the employee will not perform the prohibited activities. (Rule 1-311(D).)
adhere to these rules. Consequently, IPG
can be prosecuted for violation of the rules as an unlawful practice under the
UCL. Stender, as the sole shareholder,
director, president, treasurer and secretary of IPG, necessarily controlled
IPG’s practices in general and, in particular, the information it gave to the
State Bar and to its clients, about Guajardo’s status and practice. By virtue of his direct participation in
these practices, Stender can be found liable for IPG’s unlawful business
practices. (People v. Toomey, supra, 157 Cal.App.3d
at pp. 14-16 [president
and operating officer of corporation could be held liable for unlawful conduct
of corporate employees where evidence showed he “orchestrated all aspects of
the business†and had “unbridled control over the practices which were found
violative of section 17200 and 17500â€].)
Appellants’
argument that they cannot be liable for violating sections 6180 and 6180.1
is no more tenable. Section 6180
provides: “When an attorney engaged in law practice
in this state dies, resigns, becomes an inactive member of the State Bar, is
disbarred, or is suspended from the active practice of law and is required by
the order of suspension to give notice of the suspension, notice of cessation
of law practice shall be given and the courts of this state shall have
jurisdiction, as provided in this article.â€
Section 6180.1 specifies the required contents and recipients of
the notice, and provides that in cases other than death or incompetency of the
attorney, “the notice shall be given by the attorney or a person authorized by
the attorney or by the person having custody and control of the files and
records.â€
title="">[11] Appellants maintain that these
statutes apply only to the attorney who resigns (here, Guajardo) and only when
there is an order or other requirement of the State Bar (which they say did not
occur here), and that the statutes do not apply to corporations. As we have said, section 6167 ensures
that these rules do apply to law
corporations, and section 6180.1 expressly requires that the notice be
given by the resigning attorney or “the person
having custody and control of the files and records.†In the present case, the latter phrase
necessarily applies to IPG and Stender.
Appellants’
suggestion that no notice was required because the Supreme Court did not order
Guajardo to provide notice of his resignation is entirely unpersuasive. Guajardo’s resignation letter stated, “I
further agree that within thirty (30)
days of the filing of this resignation by the Office of the Clerk, State
Bar Court, I shall perform the acts specified in Rule 9.20(a) and (b),
California Rules of Court; and within forty
(40) days of the date of filing of this resignation by the Office of the
Clerk, State Bar Court, I shall notify that Office as specified in
Rule 9.20(c), California Rules of Court.â€
California Rules of Court, rule 9.20(a), provides that the Supreme
Court “may include in an order disbarring or suspending a member of the State
Bar, or accepting his or her resignation, a direction that the member mustâ€
perform specified actions, including notifying clients, co-counsel and opposing
counsel or parties, returning clients’ files and property, and refunding
unearned fees.
title="">[12] Rule 9.20(b) requires that “notices
required by an order of the Supreme Court or the State Bar Court under this
rule†be given by registered or certified mail, return receipt requested, and
contain an address where communications may be directed to the resigned member.
Appellants
take the view that neither they nor Guajardo were required to provide the
notice described in California Rules of Court, rule 9.20, because the
Supreme Court’s order accepting Guajardo’s resignation did not expressly order
compliance with rule 9.20 and the rule requires notice only if the Supreme
Court so orders. This view is based on
the rule’s provision that the Supreme Court “may†include the specified actions
in its order accepting a member’s resignation.
But Guajardo’s letter of resignation, in compliance with rule 9.21,
expressly stated his agreement to “perform the acts specified in Rule 9.20(a) and
(b).†The “acts specified in Rule
9.20(a) and (b)†are the notices, return of property and refund of unearned
fees listed therein. The Supreme Court’s
acceptance of Guajardo’s resignation required him to comply with the conditions
upon which it was based, and obviated the need for the order to state that
compliance with rule 9.20 was required. Moreover,
rule 9.21, which specifically governs resignations of bar members with
disciplinary charges pending, independently requires such a bar member to
“perform the acts specified in rule 9.20(a)(1)-(4) and (b).†(Cal. Rules of Court, rule 9.21(a).)
rule 9.20(a)-(b)†is one of the grounds upon which the Supreme Court may
reject a resignation, forcing the member to proceed with the disciplinary
action.
In
addition to the notice issues, appellants challenge the trial court’s findings
that they aided and abetted Guajardo’s unauthorized practice of law as lacking
both factual and legal support. The
trial court found that IPG and Stender aided and abetted Guajardo’s unauthorized
practice of law in violation of rule 1-300(A), sections 6125, 6126
and 6133, and 8 C.F.R. § 1003.102(m).
Section 6125 prohibits the practice of law in California
by anyone who is not an active member of the State Bar, section 6126 sets
forth the criminal penalties for violating this prohibition,
prohibits bar members from aiding any person or entity in the unauthorized
practice of law. Title 8 C.F.R.
§ 1003.102(m) provides for disciplinary sanctions against a practitioner
who assists a person in the unauthorized practice of law. Section 6133 prohibits any attorney or
law firm employing a resigned attorney from permitting that attorney to
practice law or hold himself out as practicing law, and requires the employer
to supervise the resigned attorney in any other assigned duties.
As a factual
matter, appellants urge that they were permitted to appear before the
immigration and federal courts, that Guajardo neither made appearances nor
signed documents, and that since Stender and other IPG attorneys signed the
pleadings filed in federal court, they were responsible for legal actions taken
on behalf of clients and it was irrelevant whether Guajardo gave legal or
factual advice to IPG clients. This
argument misses the point. The complaint
alleges, in essence, that by assuming the legal responsibility for actions
undertaken on behalf of IPG clients, Stender and other IPG attorneys provided
the means for Guajardo to continue his law practice. According to the clients’ declarations, they
were told, and led to believe by the conduct they observed, that Guajardo was
their attorney, and it was Guajardo who developed the legal strategies for
their cases, gave legal advice, and discussed and collected legal fees. Based on these declarations, the trial
court’s finding that appellants aided and abetted Guajardo’s unauthorized
practice of law was amply supported.
Appellants
argue, however, that IPG and Stender cannot be liable for aiding and abetting
because a corporation can act only through its employees and both Stender and
Guajardo are employees or agents of IPG.
They point to Janken v. GM Hughes
Electronics (1996) 46 Cal.App.4th 55, 77-78, which held that only a
corporation, not individual supervisory employees, could be liable for
practices in part because the employees could not be viewed as aiding and
abetting the corporation.
abetting, like conspiracy, requires concerted action by separate persons. (Ibid.) “A corporation can act only
through its individual employees. . . . [¶] A corporate employee
cannot conspire with his or her corporate employer; that would be tantamount to
a person conspiring with himself. Thus when a corporate employee acts in
his or her authorized capacity on behalf of his or her corporate employer,
there can be no claim of conspiracy between the corporate employer and the
corporate employee. (
49 Cal.3d 39, 45; Marin v. Jacuzzi
(1964) 224 Cal.App.2d 549, 554.) In
such a circumstance, the element of concert is missing. [¶] Similar
reasoning applies to aiding and abetting. . . . [S]ince a corporation can act only through
its employees, the element of concert is missing in the ‘aiding and abetting’
context just as in the conspiracy context.â€
(Janken, supra, 46 Cal.App.4th
at pp. 77-78.)
As appellants acknowledge without
discussing the point, this “agent’s immunity rule†(Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994)
7 Cal.4th 503, 512) applies only when the corporate employee acts “in his
or her authorized capacity on behalf of his or her corporate employer.†(Janken,
supra, 46 Cal.App.4th at p. 78.)
“[A]gents and employees cannot conspire with their
principal or employer where they act on its behalf, ‘ “and not as
individuals for their individual advantage.†’ (
p. 45.)†(1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568,
591; Applied Equipment Corp., supra, 7 Cal.4th
at p. 512, fn. 4; Everest
Investors 8 v. Whitehall Real Estate Limited Partnership XI (2002)
100 Cal.App.4th 1102, 1107.) But
agents can “be subject to ‘conspiracy liability for conduct which the
agents carry out “as individuals for their individual advantage†and not solely
on behalf of the principal [citation].’ â€
(1-800 Contacts, Inc. v.
Steinberg, supra,107 Cal.App.4th at p. 591, quoting
Here, the complaint alleged that Guajardo practiced law
without being licensed to do so, and that Stender and IPG aided and facilitated
his doing so. Unlike the situation in
were taken by employees implementing corporate policies on behalf of the
corporation, here the corporation (and agent through which it acted) were
charged with aiding an employee’s unlawful practice. In practicing law without a license, Guajardo
was not acting on IPG’s behalf; rather, the complaint alleged that IPG and
Stender made it possible for Guajardo to continue practicing law despite his
resignation from the bar. That pleadings
were signed by Stender and other IPG lawyers does not, as appellants maintain,
render irrelevant any legal advice Guajardo may have given to clients. On the contrary, the signing of pleadings is
one of the means by which IPG and Stender were alleged to aid Guajardo in his
unauthorized practice of law.
Further,
although appellants’ violation of section 6125 could only be
based on aiding and abetting Guajardo, their violation of Rules of Professional
Conduct, rule 1-300(B), 8 C.F.R. § 1003.102(m) and
section 6133 was direct. While
section 6125 prohibits the unauthorized practice of law, these other
provisions directly prohibit attorneys from assisting another person’s unauthorized
practice of law.
More
generally, appellants argue that the City is improperly using
section 17200 as a means to regulate the practice of law, usurping the
duties of the State Bar. Emphasizing that Stender is
not a member of the California State Bar and practices in federal courts,
appellants urge that the purpose of the State Bar rules is to regulate the
practice of members of the California State Bar, not members of the federal
bar. They rely upon Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 64, a
case in which an attorney who resigned from the California State Bar with
disciplinary charges pending went on to represent parties before state and
federal agencies as a “self-styled ‘lay representative.’ †Finding that the former attorney was
continuing to provide legal services to his clients, Benninghoff upheld the trial court’s order taking jurisdiction over
his state practice under section 6180.
The trial court erred, however, in taking jurisdiction over the
the State Bar Act applies only to state courts and “state law cannot restrict
the right of federal courts and agencies to control who practices before
them.†(Id. at p. 74.) Here—as
the federal district court has already recognized in rejecting appellants’
attempt to remove the action to federal court—the City is not attempting to
regulate IPG’s or Stender’s practice in federal court but only to prevent the
commission of unlawful business practices.
As the federal district court put it, “[T]he gravamen of the
complaint is not to regulate the practice of law but rather is to prevent a
fraud upon the public. There is a
distinction for our purposes between trying to regulate professional conduct,
which plaintiff is not trying to do, and trying to prevent fraud on the public,
which plaintiff is trying to
do.†(
Dist. LEXIS 3401, *9.) This point
is also dispositive of appellants’ contention that the City is improperly using
section 17200 as a means to usurp the duties of the California State Bar
in regulating the practice of law.
Appellants
additionally urge that this action is preempted because the regulation of
practice before federal courts and agencies is a field completely occupied by
federal law. Aside from the fact that,
again, the present case is concerned with violation of state laws prohibiting
unfair business practices rather than with regulation of the legal profession,
the proposition that disciple of immigration attorneys is preempted by federal
law has been rejected by the Ninth Circuit.
(Gadda v. Ashcroft (9th Cir.
2004) 377 F.3d 934, 946.) As the
federal district in the present case explained in rejecting appellants’
preemption argument: “This
order disagrees that any scheme of federal regulation implicated in the
complaint is so pervasive as to establish complete preemption. Defendants
essentially argue that state laws governing professional conduct cannot apply
to attorneys and law corporations practicing immigration law, because federal
law preempts such application. Our court of appeals has expressly held to the
contrary. See Gadda v. Ashcroft, 377 F.3d 934, 946 (9th Cir. 2004) (‘Gadda
fails to show that federal regulation of attorneys before the immigration courts
preempts state regulation of attorneys by express, field, or conflict
preemption.’). . . .
[¶] Yes, state court holdings concerning professional conduct under
state law do not automatically pass for professional standards under federal
law. See, e.g., Benninghoff, [supra,]
136 Cal.App.4th at [p.] 74.
But if the state courts can enjoin malpractice by federal
practitioners—as has been conceded—then surely they can enjoin their frauds on
the public without fear of complete preemption.†(California v. Guajardo, supra, 2011 U.S.
Dist. LEXIS 3401, 13-14.)
Appellants do not explain their
contention that this court should apply the doctrine of abstention except to
quote from Feitelberg v. Credit Suisse
First Boston, LLC, supra, 134 Cal.App.4th 997 that “courts may decline
to decide UCL claims where a regulatory or administrative mechanism addresses
the conduct at issue†and “ ‘[w]here a UCL action would drag a court of
equity into an area of complex economic policy, equitable abstention is
appropriate.’ †(
Inc. (2001) 94 Cal.App.4th 781, 795.)
Feitelberg was not about
abstention; it discussed this point only as part of its explanation of the
scope of the UCL. Desert Healthcare found abstention appropriate where the claimed
unfair practices—which involved capitation agreements that the court stated
were standard in the industry and approved of by governing legislation—would
have required the court to delve “deep into the thicket of the health care
finance industry, an economic arena that courts are ill-equipped to meddle
in.†(94 Cal.App.4th at
p. 796.) The present case involves
no such complex economic policy arena.
II.
Appellants contend the trial court
erred in issuing the injunction because Guajardo had already left IPG, IPG
itself was no longer in operation, and there was no continuing risk of clients
receiving legal services from Guajardo in the mistaken belief he is licensed to
practice law. They note the trial
court’s question at the outset of the hearing “whether the defendant should
be . . . subject to an injunction barring his participation with
Guajardo going forward, in light of the evidence concerning Mr. Guajardo’s
current whereabouts and/or affiliation,†and the court’s removal of the
language “continues to aid and abet†from the injunction.
The trial court’s question was
nothing more than its statement of direction for the hearing: After stating its general inclination to
grant the request for the injunction, the court identified the areas in which
it had concerns as to the “details and breadth†of the proposed
injunction. The People
argued that the injunction was necessary because Stender had not disavowed
Guajardo or Guajardo’s actions, Stender’s declaration demonstrated that he
continued to hold Guajardo in high regard, the clients’ declarations
established that Stender failed to notify them that Guajardo was no longer
associated with the firm, that failure indicated that Stender hoped to continue
to benefit from the lure of Guajardo’s name and reputation, and there was no
evidence Stender would refuse to be associated with Guajardo if Guajardo
returned. Stender, by contrast, argued
that it was he who stepped in to take care of the clients who would have been
left without representation after Guajardo’s resignation, and that he and other
IPG attorneys, not Guajardo, provided legal services to the clients. Stender argued that there was nothing wrong
with an attorney taking over the practice of a suspended attorney and using the
former attorney to assist in the transition and continued representation.
The trial court
rejected this argument, finding that the People’s evidence established a
probability of success on the merits of the claims that Guajardo continued to
provide legal services after Stender took over the practice. The picture painted by the clients’
declarations was starkly contrary to that presented by Stender. According to the clients, they hired Guajardo
because of his reputation as an immigration attorney; they were never informed
that Guajardo lost his license to practice law; after Stender came into the
practice and the name of the firm changed to IPG, Guajardo continued to act as
their attorney and acted as the “boss†of Stender and other attorneys; and as a
result, they continued to believe Guajardo was their attorney. As described above, after Guajardo’s
resignation from the bar, he expressly told several clients that he remained
their attorney, and Stender told one client that Guajardo was “still your guyâ€
and the other lawyers were “just here to help.†Even in November 2010, after
appellants say Guajardo left IPG, when the San Francisco City Attorney’s
investigator called IPG for an appointment with Guajardo, he was told he would
be able to schedule one.
The clients’
declarations amply support the court’s determination that there was a
probability the People would succeed on the merits of their claims. Notably, the record reflects no written
notice to clients regarding Guajardo’s resignation from the California Bar and
inability to practice law. The only
written notice documented in the record is the March 5, 2008, order regarding Guajardo’s resignation from
the Ninth Circuit Bar, which appellants demonstrate was signed by four of the
clients who submitted declarations in this case. Putting aside the clients’ insistence that
they did not comprehend its meaning, this notice says nothing about Guajardo’s
status before the California
bar.
Stender’s high
regard for Guajardo was evident in his declaration, which explained that
Guajardo was a “highly experienced, longtime immigration attorney who had a
reputation of being able to help clients†and that Stender intended to “learn
how he was so successful in the vast majority of his cases.†The evidence that Stender saw Guajardo as an
asset to the practice, facilitated Guajardo’s practice of law, and in fact
assured clients that Guajardo continued to be their attorney, as well as that
Guajardo left IPG of his own accord rather than at Stender’s behest, supported
the trial court’s conclusion that the injunction was necessary to prevent
Stender from resuming such practices again if Guajardo returned. The court’s recognition that the injunction
should not recite that IPG “aided and abetted and continues to aid and abet
Guajardo’s unauthorized practice of law,†as originally proposed, but only that
IPG “aided and abetted†the unauthorized practice, reflects the fact that at
the time the injunction was issued, IPG was not currently aiding and abetting the practice. It does not undermine the court’s conclusion
that an injunction was necessary to prevent such conduct in the future.
Appellants further
urge that the notice required by the court would cause irreparable injury to
them by interfering with their relationships with their clients, while no
irreparable injury would occur if the notice is not given. According to appellants, the notice wrongly
states or implies facts that have yet to be proven, such as that Guajardo has a
continuing relationship with appellants, that Guajardo gave legal advice,
represented clients in immigration matters and otherwise acted as an
attorney. Because the notice states that
it is required by the court, appellants maintain that a recipient would view it
as reflecting a final decision by the court on such facts. The notice would undermine clients’ faith and
trust in appellants by suggesting the court has a problem with appellants, and
would interfere with appellants’ relationship with their clients and invite
speculation and confusion by implying that there is an ongoing relationship
between appellants and Guajardo and suggesting actions for the client to take
that are not justified by the evidence.
Appellants contend it is improper for the notice to inform clients of
their right to fire Guajardo and hire a licensed attorney because Guajardo no
longer represents them and appellants already do, or to inform clients that IPG
must immediately return unearned fees, when IPG no longer exists and Stender or
other new attorneys may continue to represent the clients. They argue the notice wrongly states that it
is illegal for Guajardo to discuss cases with the clients when
rule 1-311(C) permits a resigned member to perform certain tasks on legal
cases. They urge that the notice’s
reference to return of unearned fees invites clients to fire Stender or IPG and
sue for return of fees, creating an immediate conflict between them and their
clients.
Balanced against
these harms, appellants maintain there would be no irreparable harm to clients if
the notice is not given because there is no evidence Guajardo was attempting to
represent clients at the time the injunction was ordered or would do so in the
future. Appellants argue that all IPG
clients had a licensed attorney representing them, and no client has lost his
or her right to hold those attorneys accountable.
As we have
explained, these latter arguments miss the point. The trial court found a probability that the
People would prevail on their claims that appellants facilitated Guajardo’s unauthorized
practice of law by providing the structure—not least of which was provision of
licensed attorneys who could sign pleadings and perform formal functions
Guajardo could not—within which Guajardo could continue to function as a lawyer
for clients who believed him to be licensed.
The evidence that the clients were originally Guajardo’s, or came to IPG
for Guajardo’s services, that Stender held Guajardo in high regard and
benefitted from his role in the practice, and that Guajardo chose to leave IPG
rather than Stender and IPG taking action to stop his unlawful practice of law,
supported the trial court’s determination that the injunction was
necessary.
As for the claimed
harm to appellants and their relationship with their clients, nothing in the
notice casts any aspersion on appellants or their representation. The notice is required to be provided to
persons who are former clients of Guajardo or current or former clients of
appellants on whose matters Guajardo worked.
Since appellants assumed Guajardo’s practice and employed him, there
would be no reason for a client receiving this notice to infer anything more
than that the court was requiring appellants to ensure that clients on whose
cases Guajardo had worked were aware of Guajardo’s resignation from the
bar. The notice does not imply any fact
found against appellants. Nor does it
invite clients to fire appellants; it refers only to clients’ rights to fire
attorney.
Under
sections 6180 and 6180.1 and rule 1-311, appellants were required to
give notice to the bar and to clients of Guajardo’s bar status, stating in the
notice that Guajardo was not permitted to, and would not “[r]ender legal
consultation or advice to the client,†“[a]ppear on behalf of a client in any
hearing or proceeding or before any judicial officer, arbitrator, mediator,
court, public agency, referee, magistrate, commissioner, or hearing officer,â€
“[a]ppear as a representative of the client at a deposition or other discovery
matter,†“[n]egotiate or transact any matter f
| Description | This appeal challenges a preliminary injunction requiring appellants, an immigration lawyer and law firm, to provide notice to certain clients that another lawyer who had been employed by the firm had resigned from the bar with disciplinary charges pending and was not authorized to practice law. Appellants contend the injunction should not have been granted because the statutes and rules they were alleged to have violated do not apply to them; the required notice was inaccurate and would cause harm to them and their clients; they were precluded from presenting evidence in their defense by their obligation not to violate attorney-client privilege and their clients’ rights to privacy; and the events underlying the allegations against them were no longer occurring and unlikely to occur in the future. We will affirm. |
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