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The California State Bar Court Review Department recommends a 30-day suspension for a conflict of interest violation

This case underscores the need for attorneys to understand the broad scope of our conflicts of interest rules, which require the avoidance of adverse interests, and it demonstrates the perils that can result when an attorney is not careful in following the requirements of these rules. In her first disciplinary matter, Elana Thibault is charged with four counts of misconduct stemming from her agreement to represent a client in a litigation matter whose interests were adverse to a prior client of Thibault’s former employer. The hearing judge found Thibault culpable on three of the four charges and recommended a 30-day actual suspension. Thibault appeals the judge’s recommendation, maintaining that the evidence is not sufficient to support the culpability findings made by the judge. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and requests that we uphold the judge’s recommendation. Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the judge’s culpability findings, the aggravating and mitigating circumstances, and the discipline recommendation.

Her employer Peshawaria (a non-lawyer apparently engaging in unauthorized practice) had represented a party (Rattan) to whom she later became adverse, leading to a disqualification motion

The superior court held its disqualification hearings on July 13 and 19, 2018. During the July 19 hearing, Thibault attempted to introduce two documents into evidence while cross-examining Rattan, which she had retrieved from Peshawaria’s database: a written narrative that Rattan had prepared for Peshawaria in connection with the 2008 representation and the purported retainer agreement between Rattan and Peshawaria. At one point during the hearing, Superior Court Judge Gregory Syren asked, “I’m asking you a question very directly, Ms. Thibault. You’re offering to show [Rattan] documentation regarding [her] consultation with Ms. Peshawaria . . . back in 2008?” Thibault replied, “That’s correct.” Judge Syren then stated, “Alright. This examination is done. I’m not going to hear any further testimony at this point from Ms. Rattan.” The judge further stated, “Ms. Thibault, the fact that you brought to court today a document . . . from a database which purports to be the, quote, unquote, story which Ms. Rattan provided to Ms. Peshawaria in 2008[,] I don’t think I need to hear anything else at this point.”

Findings

Here, Thibault’s misconduct includes her violation of the superior court’s sanctions order, her failure to timely report the sanctions to the State Bar, and her decision to maintain an adverse representation. She also still fails to fully understand the wrongfulness of actions and her ethical obligations as an attorney in avoiding conflicts of interest. We are mindful that Thibault conferred with the State Bar’s Ethics Hotline for guidance before deciding to accept Prasad’s representation, which we commend. Nevertheless, while it is one thing to explore the parameters of an ethical obligation before deciding to represent a potential client, we view Thibault’s misconduct as unreasonable and without careful consideration or regard to what should have been an obvious conflict of interest.

(Mike Frisch)