IN THE SUPERIOR COURT 2 OF GUAM
3 JUNG YE KANG, ) Domestic Case no. DM 0675-09 4 ) 5 Plaintiff, ) ) 6 v. ) DECISION AND ORDER 7 ) re: Motion to Disqualify Opposing Counsel BYONG HI KANG, ) 8 ) 9 ) Defendant. 10
II INTRODUCTION 12 This matter came before the Honorable Judge Michael J. Bordallo on August 2, 2012. I3
14 The Plaintiff was represented by Attorney Leslie Travis. The Defendant was represented b 15 Joaquin C. Arriola. After considering the matter presented, the court now issues the followin 16 decision and order denying Defendant's Motion to Disqualify Opposing Counsel. 17
18 BACKGROUND 19 This matter arises out of Defendant's Motion to Disqualify Attorney G. Patrick Civill 20 and the law firm of Civille & Tang, PLLC ("Civille & Tang") from representing the Plaintiffs i 21
22 the instant action. Defendant alleges that confidential information was disclosed when Attorne 23 G. Patrick Civille represented Defendant in previous civil litigation. 24 DISCUSSION 25
26 Defendant moves this Court to order the disqualification of Attorney Patrick Civille an 27 his firm, Civille & Tang based on a conflict of interest between its current representation 0 28 Plaintiff and its former representation of Defendant. Defendant argues he previously retaine
Attorney G. Patrick Civille to represent him in matters that are substantially related to the firm'
current representation of Plaintiff. Defendant alleges Plaintiff's interests are material adverse t
Page 1 of6 Defendant's and does not give written consent to such representation. Guam Rules 0
2 Professional Conduct, Rules 1.9 and Rule 1.10 provide: 3
4 Rule 1.9: Duties to Former Clients
5 (a) A lawyer who, has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interest 6 are materially adverse to the interests of the former client unless the former client gives 7 informed consent, confirmed in writing. 8 Rule 1.10: Imputation of Conflicts of Interest: General Rule 9 (a) While lawyers are associated in a firm, none of them shall knowingly represent a client 10 when anyone of them practicing alone would be prohibited from doing so by Rules 1.7 11 or Rule 1.9, unless the prohibition is based on a personal interest in the prohibited lawyer and does not present a significant risk of materially limiting the representation of the 12 client by the remaining lawyers in the firm. 13 Guam R. Prof. Condo 1.9 (2002); see also ABA Model R. of Prof. Cond., Rule 1.9 (2002) 14
15 The moving party is subject to a "high standard of proof to show that 16 disqualification is warranted." Victors V. Kronmiller, 553 F.Supp.2d 533, 551 (D. Md. 17 2008) (applying Maryland's Lawyers' Rules of Professional Conduct 1.9(a), modeling 18
19 the ABA Model Rules) (citation omitted). In the instant case, Defendant carries this 20 burden and must show a "substantial relationship between the former and current 21
22 representation." Somascan Plaza, Inc. V. Siemens Medical Systems, Inc., 187 F.R.D. 34,
23 38 (D. Puerto Rico 1999). Disqualification must be warranted because Courts have found 24 "an attempt to disqualify the opposing attorney is often tactically motivated and 25 disruptive to the litigation process, [therefore] disqualification is a drastic measure that is 26
27 generally disfavored," Skyy Spirits, LLC V. Rubyy, LLC, No. CV-00646-09 WHA, 2009 28 WL 3762418.
Mr. Civille formerly represented Defendant in a federal criminal case, Reich V.
Guam Construction Co. and Byong Hi Kang (CR- 00043-98), and federal civil matter,
Page 2 of6 USA v. Byong Hi Kang (CV-00062-96). Defendant asserts the matters are substantially 2 related as the previous litigation involved the assets of the community, the character and 3
4 conduct of Defendant, the interest of Mrs. Kang (if any) in Guam Construction Co. Mr.
5 Civille disputes Defendant's statements in his Declaration. Mr. Civille's prior 6 representation was 14-16 years ago, due to this extreme passage of time, the office may 7
8 have lost or destroyed the criminal file during a move to their current office. And after
9 review of the civil case file, Mr. Civille finds the file to be incomplete and nothing in the \0 file has a bearing on the issues in the current divorce action. Thus, Mr. Civille and the 11
12 attorneys of Civille & Tang do not personally have confidential information material to
13 the case. Defendant's marital status was not an issue in either case and there were no 14 particular details which were "significant, confidential, personal, private, and financial 15
16 information about [Defendant] and Guam Construction Company ("GCC")" were
17 revealed. See Motion to Disqualify Counsel, Memo of Pts. & Aths ("MPA"), p. 2 (July 18 13,2012). 19 Defendant further cites to ABA Model Rules of Professional Conduct, which wer 20
21 adopted and made part of the Guam Rules of Professional Conduct in 2003, per Supreme Co 22 of Guam Promulgation Order No. 04-002. The Comment to ABA Model Rule 23
24 guidance on matters which are "substantially related".
25 Matters are "substantially related" for purposes of this Rule if they involve the 26 same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the 27 prior representation would materially advance the client's position in the 28 subsequent matter. For example, a lawyer who has represented a business person and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce.
Page 3 of6 Defendant submits Rule 1.9 mandates the disqualification of an attorney based on 2 impermissible conflict of interest due to former representation where the following elements ar 3 met 1) former representation of a client 2) the current representation involves a matter that is th 4
5 same or substantially related to the subject of the prior representation and 3) the pres en 6 representation is materially adverse to the interests of the former client. Defendant contends Mr. 7 Civille and his law firm previously represented him and his business, thereby learned extensiv 8
9 private financial, and other, information about Defendant and the business. As such, Mr. Civill 10 may not then represent Plaintiff in a divorce matter. II
12 Plaintiff rebuts Defendant's argument with important competing policies "such
13 permitting a litigant to retain counsel of his choice and enabling attorneys to practice withou 14 excessive restrictions.'" Id. at 513-14 (quoting United States v. Miller, 624 F.2d 1198, 1201 (3 15
16 Cir.1980)). Therefore, courts have uniformly held that "[d]disqualification is not automatic" jus
17 because the elements have been met. The governing test explained by the court in Skyy Spirits, 18 LLC v. Rubby, LLC provides guidance as to what would warrant disqualification. If "th 19
20 information acquired during the first representation [must] be "material" to the second; that is, i
21 must be found to be directly at issue in, or have some critical importance to, the secon 22 representation." Farris v. Fireman'sfund Ins. Co., 119 Cal.AppAth 671, 680,14 Cal.Rptr.3d 61 23
24 (Ct.App.2004).
25 With conflicting public policies in mind, the Court must first examine the nature of th 26 prior representation and compare the similarities with the nature of the claims and defense 27
28 asserted in the current lawsuit.
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IN THE SUPERIOR COURT 2 OF GUAM
3 JUNG YE KANG, ) Domestic Case no. DM 0675-09 4 ) 5 Plaintiff, ) ) 6 v. ) DECISION AND ORDER 7 ) re: Motion to Disqualify Opposing Counsel BYONG HI KANG, ) 8 ) 9 ) Defendant. 10
II INTRODUCTION 12 This matter came before the Honorable Judge Michael J. Bordallo on August 2, 2012. I3
14 The Plaintiff was represented by Attorney Leslie Travis. The Defendant was represented b 15 Joaquin C. Arriola. After considering the matter presented, the court now issues the followin 16 decision and order denying Defendant's Motion to Disqualify Opposing Counsel. 17
18 BACKGROUND 19 This matter arises out of Defendant's Motion to Disqualify Attorney G. Patrick Civill 20 and the law firm of Civille & Tang, PLLC ("Civille & Tang") from representing the Plaintiffs i 21
22 the instant action. Defendant alleges that confidential information was disclosed when Attorne 23 G. Patrick Civille represented Defendant in previous civil litigation. 24 DISCUSSION 25
26 Defendant moves this Court to order the disqualification of Attorney Patrick Civille an 27 his firm, Civille & Tang based on a conflict of interest between its current representation 0 28 Plaintiff and its former representation of Defendant. Defendant argues he previously retaine
Attorney G. Patrick Civille to represent him in matters that are substantially related to the firm'
current representation of Plaintiff. Defendant alleges Plaintiff's interests are material adverse t
Page 1 of6 Defendant's and does not give written consent to such representation. Guam Rules 0
2 Professional Conduct, Rules 1.9 and Rule 1.10 provide: 3
4 Rule 1.9: Duties to Former Clients
5 (a) A lawyer who, has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interest 6 are materially adverse to the interests of the former client unless the former client gives 7 informed consent, confirmed in writing. 8 Rule 1.10: Imputation of Conflicts of Interest: General Rule 9 (a) While lawyers are associated in a firm, none of them shall knowingly represent a client 10 when anyone of them practicing alone would be prohibited from doing so by Rules 1.7 11 or Rule 1.9, unless the prohibition is based on a personal interest in the prohibited lawyer and does not present a significant risk of materially limiting the representation of the 12 client by the remaining lawyers in the firm. 13 Guam R. Prof. Condo 1.9 (2002); see also ABA Model R. of Prof. Cond., Rule 1.9 (2002) 14
15 The moving party is subject to a "high standard of proof to show that 16 disqualification is warranted." Victors V. Kronmiller, 553 F.Supp.2d 533, 551 (D. Md. 17 2008) (applying Maryland's Lawyers' Rules of Professional Conduct 1.9(a), modeling 18
19 the ABA Model Rules) (citation omitted). In the instant case, Defendant carries this 20 burden and must show a "substantial relationship between the former and current 21
22 representation." Somascan Plaza, Inc. V. Siemens Medical Systems, Inc., 187 F.R.D. 34,
23 38 (D. Puerto Rico 1999). Disqualification must be warranted because Courts have found 24 "an attempt to disqualify the opposing attorney is often tactically motivated and 25 disruptive to the litigation process, [therefore] disqualification is a drastic measure that is 26
27 generally disfavored," Skyy Spirits, LLC V. Rubyy, LLC, No. CV-00646-09 WHA, 2009 28 WL 3762418.
Mr. Civille formerly represented Defendant in a federal criminal case, Reich V.
Guam Construction Co. and Byong Hi Kang (CR- 00043-98), and federal civil matter,
Page 2 of6 USA v. Byong Hi Kang (CV-00062-96). Defendant asserts the matters are substantially 2 related as the previous litigation involved the assets of the community, the character and 3
4 conduct of Defendant, the interest of Mrs. Kang (if any) in Guam Construction Co. Mr.
5 Civille disputes Defendant's statements in his Declaration. Mr. Civille's prior 6 representation was 14-16 years ago, due to this extreme passage of time, the office may 7
8 have lost or destroyed the criminal file during a move to their current office. And after
9 review of the civil case file, Mr. Civille finds the file to be incomplete and nothing in the \0 file has a bearing on the issues in the current divorce action. Thus, Mr. Civille and the 11
12 attorneys of Civille & Tang do not personally have confidential information material to
13 the case. Defendant's marital status was not an issue in either case and there were no 14 particular details which were "significant, confidential, personal, private, and financial 15
16 information about [Defendant] and Guam Construction Company ("GCC")" were
17 revealed. See Motion to Disqualify Counsel, Memo of Pts. & Aths ("MPA"), p. 2 (July 18 13,2012). 19 Defendant further cites to ABA Model Rules of Professional Conduct, which wer 20
21 adopted and made part of the Guam Rules of Professional Conduct in 2003, per Supreme Co 22 of Guam Promulgation Order No. 04-002. The Comment to ABA Model Rule 23
24 guidance on matters which are "substantially related".
25 Matters are "substantially related" for purposes of this Rule if they involve the 26 same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the 27 prior representation would materially advance the client's position in the 28 subsequent matter. For example, a lawyer who has represented a business person and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce.
Page 3 of6 Defendant submits Rule 1.9 mandates the disqualification of an attorney based on 2 impermissible conflict of interest due to former representation where the following elements ar 3 met 1) former representation of a client 2) the current representation involves a matter that is th 4
5 same or substantially related to the subject of the prior representation and 3) the pres en 6 representation is materially adverse to the interests of the former client. Defendant contends Mr. 7 Civille and his law firm previously represented him and his business, thereby learned extensiv 8
9 private financial, and other, information about Defendant and the business. As such, Mr. Civill 10 may not then represent Plaintiff in a divorce matter. II
12 Plaintiff rebuts Defendant's argument with important competing policies "such
13 permitting a litigant to retain counsel of his choice and enabling attorneys to practice withou 14 excessive restrictions.'" Id. at 513-14 (quoting United States v. Miller, 624 F.2d 1198, 1201 (3 15
16 Cir.1980)). Therefore, courts have uniformly held that "[d]disqualification is not automatic" jus
17 because the elements have been met. The governing test explained by the court in Skyy Spirits, 18 LLC v. Rubby, LLC provides guidance as to what would warrant disqualification. If "th 19
20 information acquired during the first representation [must] be "material" to the second; that is, i
21 must be found to be directly at issue in, or have some critical importance to, the secon 22 representation." Farris v. Fireman'sfund Ins. Co., 119 Cal.AppAth 671, 680,14 Cal.Rptr.3d 61 23
24 (Ct.App.2004).
25 With conflicting public policies in mind, the Court must first examine the nature of th 26 prior representation and compare the similarities with the nature of the claims and defense 27
28 asserted in the current lawsuit. The previous actions involved labor and immigration. Plainti
submits the scope of the discussions was limited to labor laws, payroll, and corporate records.
The instant action is a claim for divorce. The information acquired during the prio
Page 4 of6 representation of Defendant is not "directly at issue in, or have some critical importance to," thi 2 case. Skyy Spirits, LLC 2009 WL 3762418. This Court finds it unlikely prior representation 0 3 Defendant divulged materially relevant information about Defendant's personal family 4
5 relationship history, personal property and financial information, and potential claims 6 defenses. 7 This Court finds based on the nature of the prior and current lawsuit, the matters in th 8
9 prior and current representation are not substantially similar. Nonetheless, this Court bears i IO mind the potential for overlapping issues because former representation involved the Gu II
12 Construction Company, which is a marital asset. Plaintiff maintains that the scope of the tw
I3 representations and issues involved therein, are not related or similar. The court in Microsoft 14 Corp. Commonwealth Scientific and Industrial Research Organization held that although th 15
16 work involved related subject matter, "the sole presence of related subject matter does no
17 establish a substantial relationship" Microsoft Corp. Commonwealth Scientific and Industria 18 Research Organization 2007 WL 4376104 (E.D. Tex. Dec. 13,2007) ("While the moving part 19 is not required to produce the actual documents to prove a substantial relationship, it does hav 20
21 the burden to prove that the matters are substantially related") Accordingly, this Court find 22 Defendant has not made any specific allegations as to the substantial similarity between the tw 23
24 representations and therefore have not meet their burden.
25 Even if the matters were substantially similar, the extreme passage in time bears heavil 26 on the accuracy of the information. Assuming arguendo, Mr. Civille did acquire extensiv 27 financial information from prior representation that information was based on his financial statu 28
14-16 years ago, Plaintiff contend that any facts that might have been relevant to the instan
matter are likely no longer accurate. Furthermore, such inaccuracy "negates the implication tha
Page 5 of6 any information Mr. Civille may have been privy to as Defendant's counsel in the prior matter 2 may have any materiality in Plaintiffs present action for divorce." See Opposition to Motion t 3
4 Disqualify Counsel, p.l1 (July 19, 2012). This Court denies Defendant's Motion to Disquali
5 Opposing Counsel on the basis that the matters in the prior representation are not substantiall 6 similar, materially relevant, or critically important to the issues in the instant action. 7
9 CONCLUSION
10 Rased on the foregoing, this Court finds Defendant has not met their burden to show tha II the prior representation by Mr. Civille and the current matter are substantially related. As state 12
13 above, Defendant's Motion for Disqualifying Opposing Counsel is DENIED.
15 SO ORDERED, this __ day of _ _ _ _ _ _ 2012. 16
20 LE MICHAEL J. BORDALLO 21
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