Pepper v. Superior Court

Pepper v. Superior Court (1977) 76 Cal.App.3d 252, was a case involving to some extent rule 7-103 of the Rules of Professional Conduct. An attorney brought on behalf of a client a class action against a country club of which both the attorney and the client were members, alleging that the club's imposition of transfer fees upon sales of memberships was illegal and contrary to the club's bylaws. The trial court disqualified the attorney on the basis of what it perceived to be a conflict of interest because of the attorney's membership in the defendant club. The attorney sought a writ of mandate from the Court of Appeal, which was denied because, the appellate court determined, he had unclean hands in that he had communicated directly with the board of directors of the club about the litigation without the consent of its counsel in violation of rule 7-103. The client then died, naming the attorney as his coexecutor. The trial court denied the attorney's motion to be substituted as party plaintiff for the deceased client and the attorney again sought a writ of mandate, this time successfully. The Court of Appeal held that the unclean hands with which it had previously been concerned was in a different transaction, though a related one, from the instant matter, that its effect had been substantially attenuated by the death of the client and that the petition could not longer be denied on that basis. It concluded that the attorney's membership in the club did not in itself create a conflict of interest which would bar him from suing the club, decided that he was entitled to be substituted as party plaintiff as the coexecutor and ordered the trial court to vacate its order denying the substitution. While there are obviously some differences from the instant case, Pepper indicates that a violation of rule 7-103 should not necessarily bar an attorney for all time from participating in a lawsuit in connection with which the violation occurred.