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.
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,
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
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."
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
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.
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. Stender declared that the People's declarants were advised that Guajardo did not represent them and that Stender or other attorneys in the office were handling their files. 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
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.
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.
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
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),
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."
The injunction required Stender and IPG to provide two copies of a specified notice to all clients
Stender and IPG filed a timely notice of appeal on March 25, 2011.
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 Rules of Professional Conduct, 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 [196 Cal.Rptr. 715, 672 P.2d 121].) `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.)
"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 [11 Cal.Rptr.2d 252].)" (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 624-625 [43 Cal.Rptr.2d 774] (Shoemaker).)
On appeal, we do not reweigh conflicting evidence or assess the 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. (Shoemaker, supra, 37 Cal.App.4th at 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 [60 Cal.Rptr.2d 641].)
"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 [219 Cal.Rptr. 467, 707 P.2d 840]; Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1039-1040 [264 Cal.Rptr. 194].) 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." (Shoemaker, supra, 37 Cal.App.4th at pp. 625-626.)
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, 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) (2012)) and Penal Code section 653.55.
Appellants offer Olson v. Cohen (2003) 106 Cal.App.4th 1209 [131 Cal.Rptr.2d 620] as supporting their position that IPG could not violate a State Bar rule because it was not a member of the California State Bar and
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
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 [53 Cal.Rptr.2d 741] (Janken), which held that only a corporation, not individual supervisory employees, could be liable for age discrimination in personnel practices in part because the employees could not be viewed as aiding and abetting the corporation. Janken explained that aiding and 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
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 Janken, where the challenged actions 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 rule 1-300(B), 8 Code of Federal Regulations part 1003.102(m) (2012) and section 6133 was direct.
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 [38 Cal.Rptr.3d 759], 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 federal portion of the practice because 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." (Benninghoff, 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." (California v. Guajardo (N.D.Cal., Jan. 7, 2011, No. C 10-05658 WHA) 2011 U.S.Dist. Lexis 3401, p. *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 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.'" (Id. at p. 1009, quoting Desert Healthcare Dist. v. PacifiCare FHP, Inc. (2001) 94 Cal.App.4th 781, 795 [114 Cal.Rptr.2d 623].) 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.
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 was 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
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 guy" 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 State 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.
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
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 Guajardo if he has been acting as their 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," "[a]ppear as a representative of the client at a deposition or other discovery matter," "[n]egotiate or transact any matter for or on behalf of the client with third parties," "[r]eceive, disburse or otherwise handle the client's funds," or "[e]ngage in activities which constitute the practice of law." (Rule 1-311(B) & (D).) The representations in the notice are indisputable: Guajardo is not a licensed attorney, he resigned from the bar in the circumstances stated, and he is prohibited from performing the specified functions on behalf of clients.
Finally, appellants argue that the trial court erred in issuing a mandatory injunction because they were precluded from presenting evidence in their defense by their obligation to protect the privacy and attorney-client privileges of their clients. Appellants claim they cannot defend against the application for injunction without divulging clients' privileged information, and the People have not obtained waivers from the clients.
Appellants maintain that "absent a waiver by each client whose confidential information will be disclosed, a lawsuit may not be prosecuted against a defendant who reasonably needs to disclose attorney-client privileged information in order to prepare a defense." For example, in dismissing a shareholder derivative suit alleging attorney malpractice in which the corporation had not waived attorney-client privilege, the court stated, "We simply cannot conceive how an attorney is to mount a defense in a shareholder derivative action alleging a breach of duty to the corporate client, where, by the very nature of such an action, the attorney is foreclosed, in the absence of any waiver by the corporation, from disclosing the very communications which are alleged to constitute a breach of that duty." (McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378, 385 [99 Cal.Rptr.2d 622].) In Solin an attorney filed a malpractice suit against a law firm from which he had obtained advice regarding his representation of clients whose confidential information he had disclosed in obtaining the advice. Affirming the trial court's dismissal of the action, the court found that the confidential information was critical to determining the central issues in the case, including what advice was given and why, and concluded that "because this lawsuit `is incapable of complete resolution without breaching the attorney-client privilege, the suit may not proceed.'" (Solin, supra, 89 Cal.App.4th at p. 467, quoting General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1170 [32 Cal.Rptr.2d 1, 876 P.2d 487].)
Here, it is not apparent how clients' confidential information would be necessary to defend against the People's claims. The allegations of unfair business practices upon which the injunction was issued pertain to appellants' conduct regarding Guajardo's loss of the right to practice law, such as what formal notice appellants did or did not give to clients and the bar and what clients were told and observed about whether Guajardo or a different attorney was performing legal services on their behalf. It is not obvious how any details of the clients' legal cases or legal advice they were provided would be required by appellants' defense.
The only specific example appellants discuss in arguing their defense would require them to divulge clients' confidential information is the identity of their clients. Appellants urge that because theirs is an immigration practice, revealing clients' identities carries the risk of prosecution or deportation as well as damage to the immigration case.
In Rosso, Johnson, Rosso & Ebersold v. Superior Court, supra, 191 Cal.App.3d 1514 (Rosso), the plaintiff in a suit against attorneys who had advertised for potential clients among women who might have suffered problems from using the Dalkon Shield intrauterine device sought discovery
Although "disclosure of the identity of the client in the attorney-client setting usually says nothing regarding the reason for legal counsel or the content of the communication with the attorney ..." (Smith v. Superior Court(1981) 118 Cal.App.3d 136, 142 [173 Cal.Rptr. 145]), we acknowledge that the situation may be different for a practice that specializes in a specific area of the law. In the medical context, "[i]f the disclosure of the patient's name reveals nothing of any communication concerning the patient's ailments, disclosure of the patient's name does not violate the [doctor-patient] privilege. (Rudnick v. Superior Court (1974) 11 Cal.3d 924, 933, fn. 13 [114 Cal.Rptr. 603, 523 P.2d 643]; Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 515-516 [62 Cal.Rptr. 547].) However, disclosure of the identity of the patient violates the physician-patient privilege where such disclosure reveals the patient's ailment. (Blue Cross v. Superior Court (1976) 61 Cal.App.3d 798, 800 [132 Cal.Rptr. 635] [patients treated for psoriasis]; Marcus v. Superior Court (1971) 18 Cal.App.3d 22, 24 [95 Cal.Rptr. 545] [patients given angiogram]; Costa v. Regents of Univ. of California (1953) 116 Cal.App.2d 445, 463 [254 P.2d 85] [patients receiving certain cancer treatments].) Any identification of a psychotherapist's patient is precluded because any treatment `reveals the existence and, in a general sense, the nature of the malady.'" (Rosso, supra, 191 Cal.App.3d at p. 1519, quoting Smith, supra, 118 Cal.App.3d 136, 141-142.)
The fact that the factual allegations of the complaint describe misconduct going beyond the actual causes of action, alleging charges of exorbitant fees and performance of substandard work, does not change our analysis. Even if these allegations might require appellants to disclose details of particular cases that would violate attorney-client privilege, these are not the allegations upon which the injunction was issued. The trial court's findings address only the allegations concerning Guajardo's unlawful practice of law and appellants' facilitation of that practice. Accordingly, defense against the injunction did not require any revelation of privileged information.
Finally, as we have indicated, the findings underlying the trial court's decision to grant the injunction demonstrate the weakness of appellants' privilege claim. The injunction was issued to prevent further violations of appellants' duties to inform clients of Guajardo's bar status and refrain from assisting his unauthorized practice of law. The attorney-client privilege appellants claim prevents them from presenting their defense, as we have also stated, is meant to protect clients' right to freely confide in and receive advice from a trained attorney who can represent their interests and provide a defense. (Solin, supra, 89 Cal.App.4th at p. 457.) The People's claims against appellants are not based on the substance, content and details of their representation of their clients but, in essence, on their failure to protect the clients from, and active facilitation of, an unlicensed lawyer's provision of legal services. The advice given to the clients on their legal matters is not the point. The point is simply whether they were unlawfully provided legal services by an attorney who had resigned from the bar with disciplinary charges pending and was not authorized to practice law. To allow appellants to avoid liability for permitting and assisting an unlicensed lawyer to provide
The judgment is affirmed. Costs to the People.
Lambden, J., and Richman, J., concurred.
In 1993, Guajardo was suspended from practice by the California Supreme Court for one year, with execution of suspension suspended and an additional year of probation, consecutive to the previously imposed discipline, for failure to comply with conditions of probation requiring him to file quarterly reports and develop a law office management/organization plan. Guajardo was suspended from practice by the Ninth Circuit Court of Appeals in 1996 for failure to avoid and acknowledge conflicts of interest and continuing failure to abide by court orders and rules; the findings in this case formed the basis of another one-year suspension by the California Supreme Court in 1998, with execution of suspension stayed and one year of probation.
In 2006, the Ninth Circuit Court of Appeals ordered Guajardo to show cause why he should not be sanctioned, suspended or disbarred for repeated violations of the court's rules and orders and for conduct unbecoming a member of the court's bar. The court's order referred to numerous cases in which Guajardo violated court rules and failed to represent clients competently. On the day of the hearing, Guajardo filed his resignation from the Ninth Circuit Court of Appeals Bar. The court accepted his resignation in November 2007, imposed monetary sanctions for his admitted violations of the court's rules and orders, and imposed orders regarding his withdrawal from cases and from representation of clients. Later, Guajardo was suspended from practice before the Board of Immigration Appeals, the immigration courts and the Department of Homeland Security.
In 2007, the California State Bar brought new disciplinary charges against Guajardo based upon his failure to return unearned fees to clients, failure to perform legal services competently and charging of an unconscionable fee. These were the charges pending when Guajardo resigned from the bar in 2008.
"If Mr. Guajardo has been acting as your lawyer, you are free to fire him and get a licensed attorney to represent you. If you choose to do so, Mr. Guajardo and IPG
