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Linden v. Siamas1/31/2002
d the rule that expert testimony is not necessary to establish malpractice if an attorney's negligence is readily apparent. (Goebel, supra, at p. 1508.) This, however, is not such a case. In contrast to both Goebel and Stanley, the only competent evidence here shows that defendants researched and briefed the attorneys' fees issue in the arbitration, and, further, that they had located and considered the cases plaintiff claims were controlling. Their decision not to cite that authority, without more, is not evidence of attorney malpractice.
III. Breach of Fiduciary Duty
Plaintiff contends defendants breached their fiduciary duties by (1) terminating the representation after the arbitration; and (2) concurrently representing his friend Warren Davis and Davis's company in a separate action against PAI. The trial court ruled that defendants' evidence established they did not breach any fiduciary duty; that their alleged conduct did not proximately cause plaintiff's injury; and that plaintiff failed to produce competent evidence to raise any triable issue of material fact.
A. Concurrent Representation
Plaintiff's contention that a conflict of interest arose from defendants' representation of Davis fails as a matter of law. While an attorney may not represent clients whose interests are adverse to each other without obtaining informed written consent (Rules Prof. Conduct, rule 3-310(C)), plaintiff supplies neither evidence nor authority for his proposition that representing two clients in separate proceedings against the same defendant, without more, constitutes a conflict of interest. Defendants, on the other hand, submitted expert evidence that rule 3-310(C) does not apply to the separate representation of two concurrent clients against the same adverse party in unrelated matters. Defendants' expert specifically opined that, absent a direct adverse interest not apparent here, the fact that both plaintiff and Davis were pursuing claims against PAI created neither an actual nor a potential conflict.
Plaintiff points to no countervailing expert evidence, but asserts Davis's interests were adverse to his own because defendants allegedly knew PAI was insolvent. In view of the limited assets available, he maintains, defendants' representation of Davis was adverse because "If the Defendants had successfully asserted my license rights there may have been nothing left for the Davis group." Analogizing the situation to bankruptcy or dual representation in settlement negotiations, he concludes, defendants' "duty of loyalty to the Davis action plaintiffs was inherently and totally irreconcilable with their duty of loyalty to him."
The analogy, and the assertion, lack merit. The record is bare of competent evidence that PAI had insufficient funds to pay either party's claim at the time of their respective settlement or final award, that PAI could not pay plaintiff's judgment when it was awarded in 1996, or that defendants knew at the time of the concurrent representation that PAI would be unable to pay both awards. Plaintiff's assertion that "If [respondents] had successfully asserted my license rights there may have been nothing left for the Davis group" is mere speculation insufficient to raise a material issue of fact. (Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668, 672.) While plaintiff cites allegedly contradictory "evidence" from his declaration and that of his legal expert, that evidence was ruled inadmissible in the trial court and plaintiff has not challenged that ruling on appeal. He may not, therefore, rely on the excluded evidence here. (Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6.)
B. Abandonment
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