by Robert M. Dato
During litigation, lawyers are sometimes required to speak, and other times are prohibited from speaking. Two recent California Court of Appeal opinions issued on the same day, one of them not certified for publication, address this conundrum. The takeaways are instructive.
1. You Must Tell Your Adversary That Her Lawyer Is Ineligible to Practice Law In Prato v. Gioia, 112 Cal. App. 5th 651 (2025), our own court of appeal in Santa Ana held that lawyers who know their opponent’s attorney is ineligible to practice law and has been suspended by the State Bar must notify the other side. An extended discussion of the facts is necessary because of the multiple opportunities the offending lawyers had to rectify the situation.
A property owner (Prato) and her company sued a commercial real estate services company (Lee) and its president (Gioia) in November 2021 for breach of fiduciary duty. Gioia had acted as a joint agent for both Prato and a lessee, who allegedly sublet the property without Prato’s approval. Prato alleged that Gioia assisted the lessee with the sublease in violation of his duties to her. Prato hired attorney Timothy McFarlin to represent her, and McFarlin included a request for attorney fees in the complaint, presumably pursuant to the lease. Id. at 657.
Attorneys for both Gioia (Thomas Aplin) and Lee (Desmond Collins) propounded discovery on Prato but McFarlin never responded or even communicated in any fashion. Aplin and Collins tried without success to speak with McFarlin for months. The trial court granted Gioia’s motion to have requests for admissions deemed admitted in September 2022. Id.
In late January 2023, the State Bar filed disciplinary charges against McFarlin. In early February, Collins discovered the charges and told Aplin and his client. Both Aplin and Collins then filed motions for terminating sanctions against Prato; those motions did not mention the disciplinary charges against McFarlin. Those motions were denied without prejudice in early March. Id. at 658.
Trial was set to begin on May 22. However, in early April, the State Bar ordered McFarlin inactive and ineligible to practice law. Id. at 659.
Two weeks before trial, Collins sent a letter by email and mail to McFarlin, telling him that he had failed to arrange an issues conference as required by Orange County Local Rule 317. McFarlin did not respond. A week before trial, Aplin renewed his motion for terminating sanctions and Collins filed a motion concerning the failure to arrange an issues conference. Both Aplin and Collins made reference to the fact that McFarlin was ineligible to practice law. The motions were served only on McFarlin, not Prato. Id. at 658.
On the first day of trial, neither McFarlin nor Prato appeared. Aplin and Collins orally moved for a judgment of dismissal, which was granted. The court clerk sent the judgment of dismissal only to McFarlin. Aplin served notice of entry only on McFarlin. Id. at 658-59.
Obtaining the dismissal was evidently not enough. Aplin and Collins both filed motions for attorney fees, again serving only McFarlin. The motions were continued when the trial court ordered defendants to provide proper service on Prato and her company under Code of Civil Procedure section 286 of the need to appoint new counsel or appear in propria persona. After another continuance, Prato retained new counsel (David Chaffin) and filed oppositions. Chaffin argued that defendants failed to give notice of the trial under section 286. The oppositions also established that McFarlin had been ineligible to practice law since April 2023. The trial court granted the motions, awarding Aplin over $42,000 and Collins over $28,000. The trial court did not address the section 286 issue. Id.at 469-470.
Representing herself on appeal, Prato did not seek to reverse the dismissal of her case. However, she argued that the fee award was improper because defendants and their attorneys “behaved in an ‘ethically questionable’ manner by failing to ensure that she was informed when they knew about her counsel’s lack of communication.” Id. at 661. The court of appeal found that this argument was sufficient to preserve the section 286 issue.
Section 286 is part of a rarely-cited portion of the Code of Civil Procedure concerning “Attorneys and Counselors at Law.” Originally enacted in 1872 and reading like it, section 286 states: “When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.”
In modern English, section 286 obligates an adverse party to give notice to his opponent to appoint another attorney or to appear in person in any further proceedings if the opponent’s lawyer has been suspended or “ceases to act” as a lawyer. Here, neither Aplin nor Collins provided such notice until after the case had been dismissed. The court of appeal reversed the attorney fee award because the trial court never addressed the section 286 issue.
The real import of the opinion, however, is the court of appeal’s dim view of the conduct of Aplin and Collins: “What might have changed the course of events here? We have an idea. Perhaps just a modicum of courtesy on the part of respondents’ attorneys would have made all the difference. Something to the effect of: ‘Your Honor, we’re not sure Ms. Prato knows her lawyer is ineligible to practice.” Or, “Your Honor, with the court’s permission, may we send notice to Ms. Prato directly to ensure she is aware of her counsel’s status?”
“We do not know why respondents’ counsel chose not to make such nominal attempts at basic professionalism and civility. What we do know is the attorneys’ conduct was more tactical than anything else—they obtained a dismissal of Ms. Prato’s lawsuit while she was unrepresented, and then had the audacity to move for an award of attorney fees against her. This conduct does not comport with the professional and ethical standards we expect from lawyers.” Id. at 655.
Lack of civility among lawyers is an all-too-common occurrence. Despite the strongly-worded opinion, however, the court of appeal did not direct the clerk to transmit a copy of the decision to the State Bar.
The takeaway: Don’t take advantage of a litigant when her lawyer is suspended.
2. When Withdrawing From Representation, Do Not State in Your Motion That Your Client Has Failed to Pay His or Her Bill Under rule 1.16(b)(4) of the Rules of Professional Conduct, a lawyer may move to withdraw from representation if the client breaches a “material term” of an engagement agreement. When most lawyers see that in a motion to withdraw, a likely supposition is that the client hasn’t paid his or her bill. But what if you actually state that in your motion? That additional information can be fatal.
In Jamgotchian v. Wagenseller, 2025 Cal. App. Unpub. Lexis 4031 (2025), attorney Wagenseller represented Jamgotchian and two of his companies as defendants in a business lawsuit. The fee agreement required Jamgotchian to replenish a deposit into his trust account every month for fees and costs incurred. Jamgotchian was late on two occasions and Wagenseller threatened to withdraw, but payments were eventually made. Nonetheless, the relationship between Jamgotchian and Wagenseller deteriorated, and Jamgotchian criticized Wagenseller’s work and billing practices. Id. at 2-3.
On July 19, 2022, Wagenseller told Jamgotchian that he owed $5,000 in unpaid fees and $20,000 to replenish the deposit account. Three days later, after an email exchange, Wagenseller wrote that “it is time to sever our relationship” because the attorney-client relationship had broken down and Jamgotchian was “in breach of the attorney-client retainer agreement.” Id. at 4. Wagenseller further stated that he would file motions to withdraw “to ensure that the transition [to new counsel] is done promptly.” Id.
Jamgotchian asked Wagenseller not to file motions to withdraw and instead allow a substitution of attorney. But Wagenseller filed the motions two days later. In the motions, Wagenseller stated that Jamgotchian’s conduct “renders it unreasonably difficult for the lawyer to carry out the representation effectively” and that Jamgotchian “breached a material term of an agreement . . . (Client Retainer Agreement; payment of fees).” Id. at 5. The motions were granted.
Jamgotchian later sued Wagenseller for legal malpractice and breach of fiduciary duty. Wagenseller filed an anti-SLAPP motion under Code of Civil Procedure section 425.16, arguing that all of his alleged conduct constituted protected petitioning activity. The court of appeal affirmed the denial of Wagenseller’s motion, finding Jamgotchian presented a prima facie case that Wagenseller breached his professional duties: “According to Jamgotchian, he did not consent to Wagenseller disclosing the existence of their fee dispute. Therefore, a reasonable trier of fact could conclude Wagenseller’s reference to the dispute in public filings constituted a breach of his duty not to disclose confidential information compromising the confidentiality of the attorney-client relationship.” Id. at 22-23.
The court cited Rule 3.1362(c) of the California Rules of Court, which prohibits a lawyer from revealing information “compromising the confidentiality of the attorney-client relationship,” as well as rule 1.16(d) of the Rules of Professional Responsibility, which prohibits a lawyer from terminating a representation “until the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client . . . .”
The takeaway: Use only generic descriptions in a motion to withdraw.
Robert M. Dato is of counsel to Buchalter, A Professional Corporation, in Irvine. Bob’s primary practice is appellate law, and he is co-chair of Buchalter’s appellate department. Bob is a member of the OCBA Professionalism and Ethics Committee and is former chair of the State Bar’s Committee on Administration of Justice. He can be reached at rdato@buchalter.com.