Filed 12/20/23 Rothstein v. Samsung Electronics America CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

PAUL S. ROTHSTEIN,

Appellant,

v.

SAMSUNG ELECTRONICS 

AMERICA, INC., et al.,

Defendants and Respondents.

B324148

Los Angeles County

Super. Ct. No.

20STCV20962

APPEAL from an order of the Superior Court of Los

Angeles County, Maren E. Nelson, Judge. Reversed.

Paul S. Rothstein, in pro. per.; Spitz Law Group, Jeffrey 

Spitz; Center for Constitutional Litigation and Robert S. Peck for 

Appellant.

Hunton Andrews Kurth, Brandon M. Marvisi, Michael J. 

Mueller, and Trevor S. Cox for Defendants and Respondents.

_______________________________________
2

INTRODUCTION

Appellant Paul S. Rothstein appeals the order granting the 

motion to revoke his pro hac vice admission, filed by defendants 

Samsung Electronics America, Inc. (SEA) and Samsung 

Electronics Co., Ltd. (together, defendants). The court concluded

that Rothstein violated rule 4.2 of the State Bar Rules of 

Professional Conduct (Rule 4.2) by contacting non-party A-Plus 

Electronics and Engineering (A-Plus), an authorized service 

center (ASC) of defendants, because Rothstein argued that ASCs 

are defendants’ agents and Rothstein knew that defendants were 

represented. On appeal, Rothstein contends, among other things, 

that the court failed to decide whether A-Plus was defendants’ 

agent, erred in concluding that the topic of the communications 

was any act or omission by A-Plus that could be imputed to 

defendants, erred in applying a rebuttable presumption of 

disqualification, and failed to find that the violation would have 

an ongoing effect on litigation. Although Rothstein’s conduct 

gives us pause, we agree with him in part and reverse. 

FACTS AND PROCEDURAL BACKGROUND

This appeal arises from a putative class action alleging that 

defendants violated Civil Code1 section 1793.03, subdivision (b), 

of the Song-Beverly Consumer Warranty Act (§ 1790 et seq.) by 

failing to make replacement parts for plasma televisions 

available for the required seven years post-manufacture.2

1 All undesignated statutory references are to the Civil Code. 

2 Section 1793.03, subdivision (b), provides: “Every manufacturer 

making an express warranty with respect to an electronic or appliance 

product described in subdivision (h), (i), (j), or (k) of Section 9801 of the 
3

Rothstein, who is a member of the State Bar of Florida, filed the 

instant action against defendants and their ASC, Service Quick, 

Inc. (Service Quick),

3 on May 29, 2020 on behalf of plaintiff 

Manuel Rivera-Melo. In July 2020, the court granted Rothstein’s 

application for pro hac vice admission. The operative second 

amended complaint (SAC), filed on November 17, 2021, added Eli 

Cesaletti as a plaintiff. 

The merits of the underlying litigation are not at issue. 

Rather, this appeal concerns the court’s order revoking 

Rothstein’s pro hac vice status based on its finding that Rothstein 

violated Rule 4.2 when he directly contacted A-Plus, one of 

defendants’ ASCs, during the pendency of the litigation. 

Prior to filing the instant action, Rothstein filed a 

complaint in federal court in the Northern District of California 

in April 2018 on behalf of Alexis Bronson against defendants, 

captioned Bronson v. Samsung Electronics America, Inc. (N.D. 

Cal., No. 3:18-cv-02300-WHA) (Bronson).

4 In June 2019, 

Business and Professions Code, with a wholesale price to the retailer of 

one hundred dollars ($100) or more, shall make available to service 

and repair facilities sufficient service literature and functional parts to 

effect the repair of a product for at least seven years after the date a 

product model or type was manufactured, regardless of whether the 

seven-year period exceeds the warranty period for the product.”

3 Service Quick has since been dismissed from the action.

4 In May 2023, Rothstein filed a motion for judicial notice in this 

appeal. By order filed June 12, 2023, we deferred ruling on the motion 

to our decision of this appeal on the merits. Rothstein seeks judicial 

notice of briefs (Exs. A, F), complaints (Exs. B, H), discovery responses 

(Exs. C, D), an order (Ex. E), dismissals (Ex. I, J), and dockets (Exs. G, 

K) from Bronson and another federal action brought by Cesaletti. “This 

court may take judicial notice of court records outside the record on 

appeal, including unpublished orders and decisions in a related federal 
4

Rothstein persuaded the judge in the Bronson action that an 

ASC’s alleged statement to a consumer that replacement parts 

were not available fell within an exception to the federal hearsay 

rules because “[t]he statements made by the authorized repaircenter employee . . . were made by Samsung’s agent.” The 

Bronson action settled in May 2021 and was dismissed. 

Cesaletti, represented by Rothstein, previously sued 

defendants in federal court on December 1, 2020. He voluntarily 

dismissed his claims on March 16, 2021. 

Rothstein’s litigation strategy in this case involved 

establishing that A-Plus and other ASCs, including Service 

Quick, were Samsung’s agents. The operative second amended 

complaint alleges that the defendants failed to maintain an 

adequate inventory of parts or otherwise make functional parts 

available to its ASCs for the required seven years, in violation of 

proceeding. [Citations.] However, a litigant must demonstrate that the 

matter as to which judicial notice is sought is both relevant to and 

helpful toward resolving the matters before this court.” (Deveny v. 

Entropin, Inc. (2006) 139 Cal.App.4th 408, 418.) The federal actions 

involved the same defendants and the same counsel for plaintiffs and 

defendants. Both parties discussed the existence and timing of the 

federal actions below, and most of the materials of which Rothstein 

seeks judicial notice merely substantiate those discussions. Defendants 

cited Exhibit E in their briefing before the trial court and Exhibit D is 

already part of the record. We deny the request with respect to 

Exhibits A, C, and F, which we do not find helpful or necessary to our 

decision, but otherwise grant the motion. (Evid. Code, § 452, subd. (d).)

We do not take judicial notice of the truth of the factual matters 

asserted in the documents. (Glaski v. Bank of America (2013) 218 

Cal.App.4th 1079, 1090.)
5

section 1793.03, subdivision (b).5 Plaintiffs allege that defendants’ 

ASCs told them that parts were not available to repair their 

Samsung plasma televisions. Plaintiffs further allege that ASCs 

act as defendants’ apparent and/or actual agents in any 

representations about the availability of parts to consumers. The 

defendants and the ASCs, as their agents, make up the 

communication chain necessary to make repair parts available to 

consumers to effect repairs through ASCs. Defendants 

communicate the availability of parts through a national 

database, to which ASCs have access. As the final link to 

consumers, ASCs, with actual or apparent agency on behalf of 

Samsung, communicate the availability of repair parts. Plaintiffs 

allege that defendants are liable for any failure in the 

communication chain.

During a hearing on March 22, 2021, Rothstein argued: 

“[W]e’re prepared to show the court that the part was not 

available for Mr. Melo when he went to the authorized service 

provider, that the authorized service provider, an agent of 

Samsung, did not know that — if the part was available, they 

were not provided information that that part was available. 

They’re an agent of Samsung.” Similarly, at a status conference 

on August 24, 2021, Rothstein argued: “[T]he guts of this case at 

this point are that, one, Samsung is responsible for the 

communications of its agents. And if it’s an authorized service 

provider, they provided incorrect information to the consumer. 

Does the consumer have a right to rely on that information? We 

5 The original complaint and first amended complaint similarly alleged 

that Service Quick “acted with apparent or actual agency on behalf of 

[defendants].” 
6

submit that it does.” In March 2022, Rothstein, on behalf of 

plaintiffs, served requests for admission on SEA, including: 

“Admit that in October 2020, [A-Plus] was SEA’s agent.” 

On June 14, 2022, defendants filed a motion to revoke the 

pro hac vice status of Rothstein, and effectively disqualify him 

from representing plaintiffs, contending that Rothstein violated 

Rule 4.2 (b)(2) based on communications Rothstein had with APlus. The motion was accompanied by the declarations of two APlus employees. Michael Braude, a project manager for A-Plus, 

stated in his declaration that he spoke with Rothstein “in the 

summer of 2019 or 2020” and that Rothstein “asked questions 

about replacement PDP assemblies for a Samsung plasma 

television,” and Braude referred him to one of Braude’s 

colleagues, Carmen Huma. In December of 2020, Braude received 

a call from Rothstein and a woman. He believed that Rothstein 

asked about the availability of parts for a Samsung plasma 

television and asked Braude to provide a written statement that 

a part was not available. Braude again referred Rothstein to 

Huma. 

In her declaration, Huma stated that, to the best of her 

recollection, she received at least two calls from Rothstein and a 

woman in his office. She believed the first was in the summer of 

2019, but was not certain. Huma believed that, during the first 

call, Rothstein asked about the availability of replacement parts 

for the PN51F8500 Samsung plasma television and for a list of 

customers who had tried to get their televisions repaired but 

could not due to a lack of replacement parts. Huma did not 

remember what specific information she provided. Huma later 

received another call from Rothstein and the woman in his office 

and believed that they asked about the availability of 
7

replacement parts for Samsung plasma televisions generally, 

rather than a specific model. Rothstein asked for an affidavit 

regarding the availability of parts, which Huma did not provide. 

Using a program on her phone that permanently logs the phone 

numbers of all callers, Huma verified that she had received at 

least one call from Rothstein’s office phone number. Huma 

recalled that she received enough calls from Rothstein that she 

blocked his number, although she did not have record of this 

because she had switched phones since the time she received his 

calls. 

In further support of their motion, defendants cited 

Cesaletti’s response to defendants’ request for “all the facts 

supporting the contention in Paragraph 50 of the Second 

Amended/Supplemental Class Action Complaint that ‘[u]pon 

information and belief, Samsung Authorized Service Centers, tell 

consumers that parts are not available to repair their Samsung 

plasma televisions.’ ” In a supplemental response, Cesaletti 

stated: “I have become aware through this litigation that Mike at 

A-plus, through his associate name Carmen (phonetic), could 

check the Samsung GSPN database for parts. In or around 

October 7–10, 2020 and again in December 2020, Mike indicated 

that after checking with Carmen who consulted GSPN, that he 

knows the parts were not available and they were not available 

for a long time. When he checked the model number of my 

television, he indicated that the parts were not available.” 

Defendants’ attorney further declared: “On April 29, 2022, 

counsel for the parties, including Mr. Rothstein and I, conferred 

by telephone. Mr. Rothstein refused to substantively discuss his 

communications with A-Plus, including whether those 
8

communications violated California Rule of Professional Conduct 

4.2.” 

In response to the motion, plaintiffs argued that Samsung 

did “not identify any information [Braude and Huma] actually 

revealed that would bias the litigation” and thus failed to 

demonstrate that any new, material information revealed in 

communications with A-Plus would have any continuing effect on 

the litigation. They further contended that Rothstein’s limited 

communications with A-Plus did not violate Rule 4.2 because 

“Samsung does not contend that ASCs are officers, directors, or 

managing agents of the corporation to fall within the ‘control 

group’ specified in Rule 4.2(B)(2)” and because its 

communications with A-Plus involved only its percipient 

knowledge, not its own actions or omissions concerning the 

dispute. They also argued that actual knowledge of 

representation is a bright line test for violation of Rule 4.2, that 

“Samsung has not provided any evidence that A-Plus was 

represented,” and that, “[w]ithout actual representation, there 

would be no way to have actual knowledge of representation.” 

Plaintiffs further argued that defendants had consented to 

the communication by refusing to answer discovery on behalf of 

its purported agents and by advising plaintiffs to seek discovery 

directly from ASCs in the Bronson litigation, and that consent

provides a complete defense to a would-be violation. Finally, they

argued that defendants had been on notice since 2019 that the 

information that ASCs relayed to customers based on their 

review of defendants’ database was at issue, yet defendants “did 

nothing to eliminate the possibility of ex parte contact with 

ASCs.” 
9

In a declaration filed with the response, Rothstein stated 

that he had limited communications with A-Plus in October and 

December of 2020. No person with whom he spoke at A-Plus 

indicated that either an attorney represented A-Plus or he should 

speak to an attorney. Rothstein represented that, before he 

communicated with A-Plus, he “had a great body of information 

from Samsung through previous litigation and independent fact 

investigation,” that he had “no notes and no memory that I 

obtained any new material information from my communications 

with A-Plus,” and that his “communications with A-Plus did not 

provide any information other than general information about 

the availability of parts as reported on Samsung’s database.” He 

further noted that the communications with A-Plus took place 

before Cesaletti was added as a plaintiff and before he alleged 

that A-Plus was an agent of defendants. Rothstein also stated 

that, in the Bronson action, Rothstein prepared subpoenas for

repair facilities and recalled “Samsung’s counsel directing the 

plaintiffs to obtain information from ASCs because that was not 

information Samsung had or was willing to obtain.” His 

“communications with A-Plus took place after Samsung refused 

to respond to discovery in Bronson/Hardin on behalf of its 

agents.” 

Plaintiffs also submitted the declaration of Robert L. Kehr, 

an expert in attorney professional responsibility, in support of the 

response. Kehr opined that Rothstein did not violate Rule 4.2, 

and that there is no proper basis for disqualification even if there 

were a Rule 4.2 violation. Kehr opined that the purpose of Rule 

4.2 (b)(2) is to prevent ex parte contact with employees who 

engaged in acts or conduct for which the employer might be 

liable. Because section 1793.03 imposes liability only on a
10

manufacturer, he opined that there is no conduct on the part of 

A-Plus for which defendants might be liable because any liability 

would rest solely on defendants’ own conduct and thus Rule 

4.2(b)(2) does not apply. Kehr further opined that disqualification 

was justified only if there might be a continuing litigation effect, 

i.e., if the lawyer had obtained material information he could use 

to his advantage from an individual who was off limits under 

Rule 4.2. However, defendants had not demonstrated a 

continuing litigation effect or that Rothstein had obtained 

material information. 

On reply, defendants argued that Rule 4.2(b) applies to 

Rothstein’s communications, that they did not consent to 

Rothstein’s communications with A-Plus, and that the Kehr 

declaration should be given no weight. For the first time, they 

also argued that revocation of his pro hac vice admission was 

appropriate because “[c]ourts employ a rebuttable presumption of 

disqualification when the challenged party alone holds the 

information wrongfully obtained.” Defendants cited In re 

Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 596 

(Complex Asbestos) for this proposition. Defendants further 

asserted that Rothstein “continues to hide the specific 

information that A-Plus provided to him during the course of his 

improper communications” and “never discloses to the Court how 

many conversations he had with A-Plus employees, which 

employees he spoke with, when he spoke with them, or what the 

employees told him.”

Following oral argument, the court issued an order 

granting the motion to revoke Rothstein’s pro hac vice status. The 

court declined to consider the Kehr declaration on the grounds 

that “[l]egal conclusions, even if contained in an expert opinion, 
11

are improper and inadmissible.” The court concluded that 

Rothstein violated Rule 4.2 because “[w]hen Rothstein called APlus, Plaintiffs were pursuing a theory of the case based on the 

agency status of the ASCs.” The court rejected the argument that 

its ruling on demurrer that section 1793.03, subdivision (b), “does 

not make manufacturers liable for inaccuracies if an ASC advises 

a customer that a needed part is not available when such parts 

are available” did not “foreclose all possibilities that Samsung 

could be liable for its ASCs conduct.” The court also observed that 

Rothstein contacted A-Plus long before its ruling on defendants’ 

demurrer. The court further rejected the arguments that no 

violation had occurred because, at the time of the challenged 

communications, Cesaletti (who had sought repairs from A-Plus)

was not yet a party, it was not yet pleaded that A-Plus was 

defendants’ agent, and defendants had consented to Rothstein’s 

contact by telling Rothstein to contact ASCs directly in the 

Bronson action. 

The court concluded that revocation of Rothstein’s pro hac 

vice status was warranted. Three factors were relevant to the 

court’s determination: (1) “the extent of information gained by 

Rothstein as a result of the communications is unclear,” which 

led it to apply the Complex Asbestos rebuttable presumption; (2) 

“Plaintiffs have indicated that they do not wish to continue with 

this action and will seek to be dismissed from it” and any 

prejudice to the unnamed clients who will seek to be substituted 

in is “thin”; and (3) that the motion to disqualify was not the 

result of tactical abuse but defendants’ “legitimate concern that 

its reading of the statute may be incorrect, that Rothstein will 

improperly use the statements, and that such statements are 

likely to have a ‘ “continuing effect on future judicial 
12

proceedings.” ’ [Citation.]” In holding that the Complex Asbestos 

rebuttable presumption applied, the court adopted defendants’ 

formulation of the presumption as applying “when the challenged 

party alone holds the information wrongfully obtained.” The court 

concluded that “maintenance of the integrity of the proceedings is 

paramount,” “Plaintiffs will suffer little or no prejudice,” and 

“[t]he prejudice alleged to be suffered by other clients of 

Rothstein is not persuasive.” 

Rothstein filed a petition for writ of mandate, which this

court denied.6 He also timely appealed. 

DISCUSSION

Rothstein contends that the trial court erred both in finding 

a violation of Rule 4.2 and, if a violation did occur, in revoking his 

pro hac vice admission. He contends that the court could not find 

a violation of Rule 4.2 without making a dispositive finding that 

A-Plus is an agent of defendants, that the court’s prior ruling 

establishes that defendants could not face liability for the acts or 

omissions of ASCs, and that the communications did not concern 

the acts or omissions of the ASCs. Rothstein asserts that 

defendants repeatedly denied agency and refused to answer 

6 “A summary denial of a writ petition does not establish law of the 

case whether or not that denial is intended to be on the merits or is 

based on some other reason.” (Kowis v. Howard (1992) 3 Cal.4th 888, 

899.) “When the court denies a writ petition without issuing an 

alternative writ, it does not take jurisdiction over the case; it does not 

give the legal issue full plenary review. A summary denial does not 

decide a ‘cause’ [citation], and should therefore not be given law of the 

case effect.” (Id. at p. 897.)
13

discovery on behalf of ASCs in the Bronson action, and therefore 

consented to Rothstein’s communications with them. 

Rothstein further argues that revocation was not an 

appropriate remedy because defendants failed to show that the 

communications with A-Plus would have a continuing effect on 

the litigation. He contends that there should have been no 

burden shifting under Complex Asbestos because: (1) defendants 

failed to identify “the nature of the information and its material 

relationship to the proceeding”; (2) he was not the only person 

with access to the information exchanged in communications 

with Samsung’s witnesses; and (3) “employees of A-Plus, did not 

breach any obligation of confidentiality and were not employed by 

or even very cooperative with Rothstein.” Finally, he argues that 

the court abused its discretion in excluding the Kehr declaration.7

Defendants argue that the court properly found a violation 

of Rule 4.2 because Rothstein’s communications with A-Plus 

involved matters that “may be” binding on defendants.

Defendants refute that they invited the communications by 

7 Defendants have moved to strike portions of Rothstein’s reply brief 

because they claim the argument that A-Plus was not a represented 

party was not made below or in Rothstein’s opening brief. However, 

Rothstein argued below in connection with the actual knowledge 

requirement of Rule 4.2 that “Samsung has not shown any evidence 

that A-Plus was represented (either by Samsung’s counsel or 

otherwise)” and “Samsung has not provided any evidence that A-Plus 

was represented.” Further, Rothstein argued in his opening brief: 

“There is nothing to suggest that A-Plus was actually represented or 

told Rothstein it was represented by Samsung’s attorneys related to 

the subject matter of the conversations.” Although we do not disagree 

with defendants that the argument was made in greater depth in the 

reply than any point prior, we deny the motion. We note, however, that 

this argument does not form the basis of our opinion.
14

declining to respond to discovery requests on behalf of ASCs in 

Bronson. Defendants also contend that revocation of Rothstein’s 

pro hac vice status was appropriate because the court did find an 

ongoing litigation effect and because the application of the 

Complex Asbestos rebuttable presumption of disqualification was 

appropriate. Finally, they contend that the court properly 

declined to consider the Kehr declaration. 

We conclude that the court did not abuse its discretion in 

excluding the Kehr declaration. Without reaching all of the many 

arguments advanced by the parties on the merits, we also 

conclude that the order revoking Rothstein’s pro hac vice status 

must be reversed.

1. The Exclusion of Rothstein’s Expert Evidence

1.1. Standard of Review 

“ ‘We apply the abuse of discretion standard when 

reviewing the trial court’s rulings on evidentiary objections.’ 

[Citation.] An ‘erroneous evidentiary ruling requires reversal only 

if “there is a reasonable probability that a result more favorable 

to the appealing party would have been reached in the absence of 

the error.” [Citation.]’ [Citation.]” (Daimler Trucks North America 

LLC v. Superior Court (2022) 80 Cal.App.5th 946, 960.) This 

includes a trial court’s exclusion of an expert opinion. (Avivi v. 

Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 

463, 467.)

1.2. The court did not abuse its discretion in 

disregarding the Kehr declaration.

The court excluded the Kehr declaration on the ground that 

“[l]egal conclusions, even if contained in an expert opinion, are 

improper and inadmissible.” The court cited several authorities 
15

for this proposition, including WRI Opportunity Loans II, LLC v. 

Cooper (2007) 154 Cal.App.4th 525. Rothstein argues that the 

court erred because expert declarations are routinely admitted in 

cases concerning the revocation of pro hac vice status (see Sheller 

v. Superior Court (2008) 158 Cal.App.4th 1697, 1703 (Sheller); 

Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1196 

(Snider)), as well as in legal malpractice cases. 

In neither Sheller nor Snider was the admissibility of an 

expert opinion challenged or discussed in any depth. Moreover, it 

is unclear why the admission of expert testimony in legal 

malpractice cases is relevant here. “The general rule is that 

expert evidence is required to establish legal malpractice,” unless 

“the alleged malpractice is so utterly egregious and obvious that 

no expert testimony is needed.” (O’Shea v. Lindenberg (2021) 64 

Cal.App.5th 228, 236–237.) This is because “the legal malpractice 

suit is but one variety of negligence action and is governed by the 

general doctrines of pleading and proof prevailing in negligence 

actions” and “questions of fact in a case such as the one at bench 

require expert evidence.” (Lipscomb v. Krause (1978) 87 

Cal.App.3d 970, 975.) Rothstein has not identified, nor are we 

aware of, a general rule requiring expert testimony for a motion 

to disqualify or revoke pro hac vice admission based on a 

violation of the State Bar Rules of Professional Conduct.

Although “[a]dmissible expert opinion testimony is not 

objectionable just because it embraces the ultimate issue to be 

decided by the trier of fact,” the court correctly observed that “an 

expert may not testify about issues of law or draw legal 

conclusions.” (Nevarrez v. San Marino Skilled Nursing & 

Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 122.) Kehr 

drew a legal conclusion as to whether Rothstein violated Rule 4.2 
16

based on facts he assumed to be true. While we do not dispute 

that the testimony of ethics experts could be useful in cases such 

as this, the court’s decision not to consider the Kehr declaration 

was reasonable under the law and was not an abuse of discretion.

2. The Revocation of Rothstein’s Pro Hac Vice Admission

2.1. Standard of Review

“Code of Civil Procedure section 128, subdivision (a)(5) 

gives courts the power to order a lawyer’s disqualification.” (DCH 

Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 831.) 

“An attorney appearing pro hac vice ‘is subject to the jurisdiction 

of the courts of this state with respect to the law of this state 

governing the conduct of attorneys to the same extent as a 

member of the State Bar of California.’ ” (Sheller, supra, 158

Cal.App.4th at p. 1716, quoting Cal. Rules of Court, rule 9.40(f).) 

“Given that a California trial court’s inherent power includes the 

authority to disqualify a California attorney, and that revocation 

of an out-of-state attorney’s pro hac vice status is, in effect, a 

disqualification of the out-of-state attorney,” this Division has 

concluded “that a California trial court’s inherent powers include 

the authority to revoke an attorney’s pro hac vice status when 

that attorney has engaged in conduct that would be sufficient to 

disqualify a California attorney.” (Sheller, at p. 1716.)

“ ‘The authority to disqualify an attorney stems from the 

trial court’s inherent power “[t]o control in furtherance of justice, 

the conduct of its ministerial officers, and of all other persons in 

any manner connected with a judicial proceeding before it, in 

every matter pertaining thereto.” [Citations.]’ ” (Cal Pak Delivery, 

Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 8.) Our 

Supreme Court set forth the standard of review for a 
17

disqualification motion as follows: “Generally, a trial court’s 

decision on a disqualification motion is reviewed for abuse of 

discretion. [Citations.] If the trial court resolved disputed factual 

issues, the reviewing court should not substitute its judgment for 

the trial court’s express or implied findings supported by 

substantial evidence. [Citations.] When substantial evidence 

supports the trial court’s factual findings, the appellate court 

reviews the conclusions based on those findings for abuse of 

discretion. [Citation.] However, the trial court’s discretion is 

limited by the applicable legal principles. [Citation.] Thus, where 

there are no material disputed factual issues, the appellate court 

reviews the trial court’s determination as a question of law. 

[Citation.] In any event, a disqualification motion involves 

concerns that justify careful review of the trial court’s exercise of 

discretion.” (People ex rel. Dept. of Corporations v. SpeeDee Oil 

Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143–1144.) The 

failure of the trial court to follow the law constitutes an abuse of 

discretion as a legal matter. (Katiuzhinsky v. Perry (2007) 152 

Cal.App.4th 1288, 1294.)

2.2. Rule 4.2

“ ‘Contact with represented parties is proscribed to 

preserve the attorney-client relationship from an opposing 

attorney’s intrusion and interference.’ [Citation.]” (Snider, supra, 

113 Cal.App.4th at p. 1197.) Rule 4.2 provides in relevant part: 

“(a) In representing a client, a lawyer shall not communicate 

directly or indirectly about the subject of the representation with 

a person* the lawyer knows* to be represented by another lawyer 

in the matter, unless the lawyer has the consent of the other 

lawyer. [¶] (b) In the case of a represented corporation, 

partnership, association, or other private or governmental 
18

organization, this rule prohibits communications with: [¶] . . . [¶] 

(2) A current employee, member, agent, or other constituent of 

the organization, if the subject of the communication is any act or 

omission of such person* in connection with the matter which 

may be binding upon or imputed to the organization for purposes 

of civil or criminal liability.” The asterisks (*) identify words

defined in Rule 1.0.1(g-1). Rule 1.0.1(g-1) states: “ ‘[p]erson’ has 

the meaning stated in Evidence Code section 175.” In turn, 

Evidence Code section 175 provides that “ ‘[p]erson’ includes a 

natural person, firm, association, organization, partnership, 

business trust, corporation, limited liability company, or public 

entity.” Rule 1.0.1(f) further provides: “ ‘Knowingly,’ ‘known,’ or 

‘knows’ means actual knowledge of the fact in question. A 

person’s* knowledge may be inferred from circumstances.”

It is undisputed that Rothstein had ex parte contacts with

A-Plus employees on at least two occasions, in October and 

December 2020. However, these facts, in and of themselves, do 

not constitute a violation of Rule 4.2.

On the record before us, whether the court abused its 

discretion in concluding that Rothstein violated Rule 4.2 raises a 

number of difficult questions. Rothstein argues that the court 

erred in finding a violation of Rule 4.2 because it did not make a 

definitive finding that A-Plus was defendants’ agent. Defendants 

concede on appeal that the court did not resolve this issue, but 

argue that this is irrelevant because “Rule 4.2 does not require a 

conclusive finding that a third party’s acts are ‘binding upon or 

imputed to’ the represented party—only that they ‘may be.’ ” 

(Italics omitted.) While it is not necessary to demonstrate that 

the agent’s act or omission that was the subject of the 

communication is in fact binding on the organization, a plain 
19

reading of Rule 4.2(b) does not permit the conclusion that “may 

be” extends to whether the person with whom the attorney had 

contact is a current employee, member, agent, or other 

constituent of the organization. Courts are bound to construe the 

rule narrowly. (See Snider, supra, 113 Cal.App.4th at p. 1198 [“ ‘a 

rule whose violation could result in disqualification and possible 

disciplinary action should be narrowly construed when it 

impinges upon a lawyer’s duty of zealous representation’ ”].) 

The court correctly observed that Rothstein had taken the 

litigation position—including at the point of the contact with APlus employees—that ASCs were agents of Samsung. Rothstein’s 

communications with an entity he argued was the agent of 

defendants, which he knew to be represented, raises the 

appearance of impropriety and the court was understandably

dubious of his conduct, as are we. Rothstein should have sought 

guidance concerning the propriety of his intended actions and, if 

necessary, sought defendants’ consent to contact A-Plus. (See San 

Francisco Unified School Dist. ex rel. Contreras v. First Student, 

Inc. (2013) 213 Cal.App.4th 1212, 1232, fn. 13 [“California courts 

have held that attorneys should resolve doubts about whether 

communications violate the rule by avoiding suspect 

communications and seeking court guidance. [Citations.] The 

need to seek such guidance particularly arises where . . . ‘bright 

line’ rules . . . [citation], are lacking.”]; see also Snider, supra, 113 

Cal.App.4th at p. 1215 [“where an attorney has reason to believe 

that an employee of a represented organization might be covered 

by rule 2-100 [predecessor to Rule 4.2], that attorney would be 

well advised to either conduct discovery or communicate with 

opposing counsel concerning the employee’s status before 

contacting the employee”].)
20

Nevertheless, it was not undisputed that A-Plus was 

defendants’ agent. In their motion to revoke Rothstein’s pro hac 

vice admission, defendants stated that “Samsung denies A-Plus’s 

agency.” Thus, defendants have simultaneously argued that 

Rothstein has violated Rule 4.2 and that A-Plus was not

defendants’ agent, in which case Rothstein’s conduct—although 

ostensibly improper—could not be a true violation of Rule 4.2.

8 It 

is also unclear how it could be established that Rothstein had 

actual knowledge that A-Plus was represented based on an

agency relationship with a represented organization, where it 

remained undecided whether the agency relationship existed and 

defendants denied the relationship. 

Absent factual determinations that A-Plus was defendants’ 

agent or that Rothstein had actual knowledge that A-Plus was 

represented, the court’s conclusion that Rothstein violated Rule 

4.2 seems to be based solely on the appearance of misconduct.

And while the named plaintiffs in this case apparently wish to be 

dismissed, we are troubled by the possibility that, under a similar 

scenario, the court or a finder of fact could subsequently 

determine that the person contacted was not an agent of the 

8 The court appeared to find that inconsistency in defendants’ position 

was based on “a legitimate concern that its reading of the statute may 

be incorrect” with respect to whether defendants could be liable for the 

acts of its ASCs. However, whether the acts or omissions of ASCs could 

be binding on defendants goes to the second prong of Rule 4.2(b)(2), not 

whether an agency relationship existed. “ ‘The existence of an agency 

relationship is usually a question of fact, unless the evidence is 

susceptible of but a single inference.’ [Citation.] Because the existence 

of agency is generally a question of fact, it logically follows that agency 

must be established with evidence.” (Zimmerman v. Superior Court

(2013) 220 Cal.App.4th 389, 401.) 
21

organization, in which case the disqualified attorney’s clients will 

have been denied the “important right to counsel of one’s 

choosing” for a violation that, in retrospect, did not take place. 

(Complex Asbestos, supra, 232 Cal.App.3d at p. 586.) Further, if 

courts dispense with the requirement that the moving party 

make a factual showing of a violation, we are concerned that the

use of disqualification motions for tactical advantage will only 

increase. (See Gregori v. Bank of America (1989) 207 Cal.App.3d 

291, 301 (Gregori) [“it is widely understood by judges that 

‘attorneys now commonly use disqualification motions for purely 

strategic purposes’ ”].) 

Although we wish to acknowledge these concerns, we need 

not resolve them for purposes of this appeal. We assume, without 

deciding, that the court did not abuse its discretion in finding a

violation of Rule 4.2 and proceed to consider whether the court’s 

disqualification of Rothstein was an abuse of discretion. We 

conclude that it was. 

2.3. The court abused its discretion in granting the 

motion to revoke Rothstein’s pro hac vice 

admission.

“We do not disqualify a lawyer from representing a client to 

punish the lawyer’s mistakes or even bad behavior. [Citations.]

The discipline of lawyers in California is a function reserved to 

the State Bar. [Citations.] Rather, disqualification of counsel is a 

prophylactic remedy designed to mitigate the unfair advantage a 

party might otherwise obtain if the lawyer were allowed to 

continue representing the client. [Citation.]” (City of San Diego v. 

Superior Court (2018) 30 Cal.App.5th 457, 470–471.)

“ ‘Disqualification motions implicate several important 

interests, among them are the clients’ right to counsel of their 
22

choice, the attorney’s interest in representing a client, the 

financial burden of replacing a disqualified attorney, and tactical 

abuse that may underlie the motion. [Citation.] The “paramount”

concern in determining whether counsel should be disqualified is 

“the preservation of public trust in the scrupulous administration 

of justice and the integrity of the bar.” [Citations.] It must be 

remembered, however, that disqualification is a drastic course of 

action that should not be taken simply out of hypersensitivity to 

ethical nuances or the appearance of impropriety.’ [Citation.]”

(Sheller, supra, 158 Cal.App.4th at p. 1711.)

Where there has been a violation of Rule 4.2, a trial judge 

may disqualify the attorney from acting as counsel in an action 

related to the subject of controversy, where the misconduct will 

have a substantial continuing effect on the proceedings before the 

court. (Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 

597, 607.) The court in Chronometrics observed: “We detect a 

common theme in the cases relating to disqualification of 

attorneys by trial courts. If the status or misconduct which is 

urged as a ground for disqualification will have a continuing 

effect on the judicial proceedings which are before the court, it is 

justified in refusing to permit the lawyer to participate in such 

proceeding. . . . If, on the other hand, the court’s purpose is to 

punish a transgression which has no substantial continuing effect 

on the judicial proceedings to occur in the future, neither the 

court’s inherent power to control its proceedings nor Code of Civil 

Procedure section 128 can be stretched to support the 

disqualification.” (Ibid., italics added.) 

Similarly, the court in Gregori stated: “Since the purpose of 

a disqualification order must be prophylactic, not punitive, the 

significant question is whether there exists a genuine likelihood 
23

that the status or misconduct of the attorney in question will 

affect the outcome of the proceedings before the court. Thus, 

disqualification is proper where, as a result of a prior 

representation or through improper means, there is a reasonable 

probability counsel has obtained information the court believes 

would likely be used advantageously against an adverse party 

during the course of the litigation.” (Gregori, supra, 207 

Cal.App.3d at pp. 308–309; accord, Big Lots Stores, Inc. v. 

Superior Court (2020) 57 Cal.App.5th 773, 782 [“disqualification 

is a ‘drastic remedy’ that should only be ordered where attorney 

misconduct has a ‘ “substantial continuing effect on future 

judicial proceedings” ’ ”].)

Even assuming that Rothstein violated Rule 4.2, we 

conclude that the court abused its discretion in holding that the 

Complex Asbestos rebuttable presumption of disqualification 

applied in this case and erred in disqualifying Rothstein in the 

absence of substantial evidence supporting that his misconduct 

would have a substantial continuing effect on the proceedings.

2.3.1. The court’s application of the Complex Asbestos 

rebuttable presumption was an abuse of 

discretion.

In Complex Asbestos, a paralegal worked for Brobeck, 

Phleger & Harrison (Brobeck), a law firm that represented 

defendants in asbestos litigation cases. (Complex Asbestos, supra, 

232 Cal.App.3d at p. 580.) The plaintiffs in some of those cases 

were represented by the Harrison firm. (Id. at pp. 582–583.) 

While working for Brobeck, the paralegal acquired “confidential 

attorney-client information, materially related to the cases” 

involving the Harrison firm’s clients, then left Brobeck to work, 

eventually, for the Harrison firm. (Id. at pp. 597–598.) 
24

Specifically, the paralegal looked at “Settlement Evaluation and 

Authority Request” forms concerning the Harrison firm’s cases, 

which were “brief summaries of the information and issues used 

by the defense attorneys and their clients to evaluate each 

plaintiff’s case.” (Id. at pp. 580, 597.) Certain defendants in the 

asbestos litigation filed a motion to disqualify the Harrison firm, 

which the court granted. (Id. at pp. 583–585.)

In affirming the order, the Court of Appeal established a 

methodology “for disqualification based on nonlawyer employee 

conflicts of interest.” (Complex Asbestos, supra, 232 Cal.App.3d at 

p. 596.) “The party seeking disqualification must show that its 

present or past attorney’s former employee possesses confidential 

attorney-client information materially related to the proceedings 

before the court. The party should not be required to disclose the 

actual information contended to be confidential. However, the 

court should be provided with the nature of the information and 

its material relationship to the proceeding. [Citation.] [¶] Once 

this showing has been made, a rebuttable presumption arises 

that the information has been used or disclosed in the current 

employment. The presumption is a rule by necessity because the 

party seeking disqualification will be at a loss to prove what is 

known by the adversary’s attorneys and legal staff. [Citation.] To 

rebut the presumption, the challenged attorney has the burden of 

showing . . . that the employee has not had and will not have any 

involvement with the litigation, or any communication with 

attorneys or co[-]employees concerning the litigation, that would 

support a reasonable inference that the information has been 

used or disclosed. If the challenged attorney fails to make this 

showing, then the court may disqualify the attorney and law 

firm.” (Ibid., fn. omitted.)
25

Unlike Complex Asbestos, this is not a case in which a nonattorney employee of a law firm, who had access to (and admitted 

to accessing) confidential information concerning that firm’s 

analyses of an opposing firm’s clients and cases, later gained 

employment with the opposing law firm. Assuming that the

presumption can apply outside the circumstances of a nonattorney employee with access to confidential information moving 

from one firm to another (a scenario that bears no resemblance to 

the circumstances of this case), there is no evidence indicating

that A-Plus ever had access to any confidential attorney-client 

information from defendants or that any of the communications 

between Rothstein and A-Plus concerned information subject to

the attorney-client privilege. Thus, there does not appear to be 

any legal basis to apply the presumption from Complex Asbestos

in this case.

9

Snider, supra, 113 Cal.App.4th 1187 is also instructive. In 

Snider, the trial court disqualified the attorney of the defendant 

in the action, Dale Larabee, following Larabee’s contacts with two 

employees of Quantum Productions, Inc. (Quantum), the 

9 For the same reasons, Shadow Traffic Network v. Superior Court

(1994) 24 Cal.App.4th 1067, which the court also cited, does not 

support the application of the presumption to this case. Shadow Traffic 

involved a motion to disqualify defendant’s counsel based on its 

contacts with an expert who previously met with plaintiff’s counsel to 

discuss retention, obtained information about plaintiff’s potential 

damages theories, and offered feedback on plaintiff’s strategies. (Id. at 

pp. 1071–1073.) The Court of Appeal concluded that there was 

“substantial evidence to support the trial court’s finding that in that 

one meeting, [plaintiff’s counsel] disclosed confidential information to 

[the expert]” and thus the rebuttable presumption applied. (Id. at 

p. 1085.) 
26

defendant’s former employer. (Id. at p. 1192.) The Court of 

Appeal granted the defendant’s petition for writ of mandate and 

vacated the court’s order. (Id. at pp. 1197, 1216.) It concluded 

that there was no evidence presented that the employees Larabee

contacted “had authority from Quantum to speak concerning this 

dispute or any other matter, or that their actions could bind or be 

imputed to Quantum concerning the subject matter of this 

litigation.” (Id. at p. 1211.) The court further found that “there 

was no evidence presented that Larabee actually violated the 

attorney-client privilege” where “[t]here was no evidence 

presented that Quantum’s counsel had any communications with 

[the employees] prior to Larabee’s contacts and attempted 

contacts with them.” (Ibid.) Although one of the employees stated 

in a declaration that the attorney “asked her ‘many more 

questions I cannot remember right now,’ ” the court rejected the 

argument that this was sufficient to establish that “there might 

have been confidential information disclosed.” (Id. at p. 1212.) 

“[T]his is mere speculation that cannot support a finding of a 

violation of rule 2-100, or disqualification of counsel.” (Ibid.)

Accordingly, it is not appropriate to assume that 

confidential information was disclosed simply because the A-Plus 

employees contacted cannot remember the full details of their

communications with Rothstein. (Accord, Complex Asbestos, 

supra, 232 Cal.App.3d at p. 596, fn. 13 [“[S]howing merely 

potential access to confidences without actual exposure is 

insufficient. The threat to confidentiality must be real, not 

hypothetical.”].) Here, as in Snider, there was no evidence 

presented that counsel for defendants ever spoke with A-Plus or 

its employees prior to Rothstein’s contacts with them. 
27

Considering that defendants deny the existence of an agency 

relationship, such contact seems unlikely.

The trial court’s “discretion is ‘ “subject to the limitations of 

the legal principles governing the subject of its action, and 

subject to reversal on appeal where no reasonable basis for the 

action is shown. [Citation.]” [Citation.]’ ” (Snider, supra, 113 

Cal.App.4th at p. 1197.) Further, “ ‘[i]t is axiomatic that cases are 

not authority for propositions not considered.’ [Citation.]” (People 

v. Avila (2006) 38 Cal.4th 491, 566.) The court stated that 

Complex Asbestos stands for the proposition that “[c]ourts employ 

a rebuttable presumption of disqualification when the challenged 

party alone holds the information wrongfully obtained”

10 and that 

“ ‘[t]he presumption is a rule by necessity because the party 

seeking disqualification will be at a loss to prove what is known 

by the adversary’s attorneys and legal staff.’ ” As established 

above, the holding of Complex Asbestos does not sweep so broadly.

We see no basis to significantly expand the application of the 

rebuttable presumption when “the thrust of [Complex Asbestos] is 

to implement the important public policy of protecting against 

the disclosure of confidential information and the potential 

exploitation of such information by an adversary.” (Shadow 

Traffic Network v. Superior Court, supra, 24 Cal.App.4th at 

p. 1085.) While there was a hypothetical risk of disclosure of 

confidential information in this case, there was no showing that 

A-Plus was ever actually exposed to attorney-client confidential 

10 We note that, although they did not remember many details of their 

conversations with Rothstein, the A-Plus employees did recall and 

were able to provide information about the subject matter of the 

discussions. 
28

information, nor did the court ever make such a finding. Thus, 

the court’s reliance on the rebuttable presumption was not 

supported by the relevant law and was an abuse of discretion.

Our conclusion is bolstered by the fact that courts have 

declined to apply the rebuttable presumption where the party 

moving for disqualification continued to have access to the person 

or entity that potentially disclosed confidential information. In 

Collins v. State of California (2004) 121 Cal.App.4th 1112, 1117–

1118, counsel for defendant discussed the details of the case with 

an expert, who agreed to act as a consultant. The following year, 

the expert agreed to be an expert witness for the plaintiffs in the 

same case, having apparently forgotten about his consultancy 

with defendant. (Id. at pp. 1118–1119.) Although plaintiffs’ 

counsel stated that the expert had never disclosed his 

consultancy, the trial court granted a motion disqualifying the 

expert and plaintiff’s attorney. (Id. at pp. 1120–1121.) The Court 

of Appeal concluded that, even though substantial evidence 

supported the trial court’s conclusion that confidential attorneywork-product information was exchanged with the expert (id. at 

p. 1128), the rebuttable presumption did not apply because “[a]t 

all times, the expert witness . . . remained a consultant for 

[defendant’s] counsel” and thus “[t]he most important source of 

the information from which to ascertain whether [the expert] had 

passed on any confidential information . . . thus remained in 

[defendant’s] hands.” (Id. at p. 1129.) It observed that “[w]hen the 

expert has gone to the other side and is no longer available to the 

side that originally retained him, the shifting of the burden of 

proof makes eminent sense,” but where the expert was still 

available to the party that originally retained him, “the normal 

burdens of proof, wherein the party moving for relief must 
29

establish its right to it, is appropriate.” (Ibid.; accord, 

Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 413

[rejecting application of rebuttable presumption where there was 

no evidence that defendant’s confidential medical consultant, who

later spoke with plaintiff’s attorney, “was legally unavailable to 

[defendant] as a source for evidence of what confidential 

information” had been disclosed].)

Thus, even if we assumed A-Plus had access to confidential 

attorney-client information, there is no evidence in the record to 

support that A-Plus or its employees had “gone to the other side” 

or were legally unavailable to defendants. Rather, the 

declarations from A-Plus employees state that A-Plus remains an 

authorized service center and thus is affiliated with Samsung in 

some manner. Its employees also provided defendants’ attorneys 

with declarations concerning the subject of their discussions with 

Rothstein. This further supports that the rebuttable presumption 

did not apply in this case as a matter of law. (See Shandralina G. 

v. Homonchuk, supra, 147 Cal.App.4th at p. 414 [“Because the 

impossibilities underlying . . . [the] rebuttable presumptions 

(applicable when former employees have joined the legal staff of 

the challenged attorney) are absent [citation], the reasons for the 

presumption are not present.”].)

2.3.2. Substantial evidence does not support that 

there is reasonable likelihood of a substantial 

continuing effect on the proceedings.

In the absence of an applicable presumption, the court was 

required to conclude, based on the evidence, that there was a 

“reasonable probability” that Rothstein “wrongfully acquired an 

unfair advantage that undermines the integrity of the judicial 

process and will have a continuing effect on the proceedings 
30

before the court” before revoking his pro hac vice admission.

(Gregori, supra, 207 Cal.App.3d at pp. 300, 308–309.) The burden 

of making this showing was on defendants as the parties seeking 

disqualification. (Collins v. State of California, supra, 121 

Cal.App.4th at p. 1129.) “ ‘Even under [the abuse of discretion] 

standard, there is still a substantial evidence component. We 

defer to the trial court’s factual findings so long as they are 

supported by substantial evidence, and determine whether, 

under those facts, the court abused its discretion.’ [Citation.]” 

(McDermott Will & Emery LLP v. Superior Court (2017) 10 

Cal.App.5th 1083, 1121 (McDermott).)

We do not agree with defendants that the court’s 

observations that Rothstein sought information to support his 

allegations and that such information could hypothetically be 

used against defendants in this litigation or future litigation 

involving other plaintiffs constituted a finding that there was 

substantial evidence that Rothstein improperly obtained

information that was reasonably likely to have a continuing 

impact on the proceedings. Because the order establishes that the 

court erroneously relied on the rebuttable presumption in 

revoking Rothstein’s pro hac vice status, we will not imply that it 

made the required finding of a substantial continuing effect in 

the alternative. “A discretionary order based on the application of 

improper criteria or incorrect legal assumptions is not an exercise 

of informed discretion and is subject to reversal even though 

there may be substantial evidence to support that order. 

[Citations.]” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 26; accord, 

Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 

Cal.App.4th 1379, 1384 [“When the record clearly demonstrates 
31

what the trial court did, we will not presume it did something 

different.”].)

Regardless, on the record before us, we do not find 

substantial evidence to support the conclusion that Rothstein 

obtained an unfair litigation advantage that was reasonably 

likely to have a substantial ongoing effect on the litigation, such 

that the drastic remedy of disqualification was appropriate. 

Rothstein represented that his communications were 

“confirmatory” in nature and “did not provide any information 

other than general information about the availability of parts as 

reported on Samsung’s database.” The declarations of A-Plus’s 

employees support that he asked about the availability of parts 

on the Samsung database. Defendants do not contend that this 

was confidential or privileged information of the kind the rule is 

intended to protect. (See La Jolla Cove Motel & Hotel 

Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 

777 [court correctly denied disqualification motion where there 

was “no evidence that [offending lawyers] obtained any 

confidential information that could give their clients an unfair 

advantage or impact upon the fairness of the trial or integrity of 

the judicial system”]; see also Snider, supra, 113 Cal.App.4th at 

p. 1197.) Although defendants and the court placed great weight 

on the fact that the A-Plus employees could not recall the full 

details of what they disclosed to Rothstein, we are not permitted 

to assume that the disclosures were significant or confidential in 

nature or would have a substantial continuing effect on the 

litigation absent evidence to that effect. As discussed above, 

“mere speculation . . . cannot support . . . disqualification of 

counsel.” (Snider, at p. 1212; see also Castro v. Los Angeles 

County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1442 
32

[“Speculative contentions of conflict of interest cannot justify 

disqualification of counsel.”].) 

Defendants argued that “any information Mr. Rothstein 

gained from these queries cannot be unlearned and pose an 

ongoing threat to Samsung’s position in this litigation,” but failed 

to articulate with any specificity or reference to evidence what 

substantial continuing effect Rothstein’s understanding of the 

availability or unavailability of replacement parts may have on 

future proceedings, or how this would provide Rothstein with an 

unfair advantage. To the extent any information Rothstein 

obtained from A-Plus about the availability of parts was

inaccurate, there is no basis to believe A-Plus’s statements would 

be binding on defendants in future proceedings. The court 

previously remarked that section 1793.03, subdivision (b), “does 

not make manufacturers liable for inaccuracies if an ASC advises 

a customer that a needed part is not available when such parts 

are available.”

McDermott, supra, 10 Cal.App.5th 1083, on which the court 

relied, does not compel a different conclusion. In McDermott, the 

trial court disqualified defendants’ counsel, Gibson, Dunn & 

Crutcher LLP (Gibson Dunn), because it failed to recognize the 

potentially privileged nature of an e-mail and used the e-mail 

over an objection that it was inadvertently disclosed. The Court 

of Appeal first concluded that substantial evidence supported the 

trial court’s ruling that there was no waiver of privilege. (Id. at 

pp. 1102–1106.) With respect to disqualification, the court

observed: “ ‘ “ ‘[I]n an appropriate case, disqualification might be 

justified if an attorney inadvertently receives confidential 

materials and fails to conduct himself or herself in [accordance 
33

with his or her State Fund[11] duties], assuming other factors 

compel disqualification.’ ” ’ [Citations.]” (Id. at p. 1120.) It 

concluded that the trial court did not abuse its discretion in 

disqualifying Gibson Dunn where it produced the inadvertently 

disclosed email in response to a subpoena, refused to return the 

email and denied that it was privileged, “further reviewed and 

analyzed the e-mail to determine its relevance to the claims and 

defenses in” other actions, “formulated deposition questions 

based on the e-mail’s content,” “deposed [two individuals] about 

the e-mail while reading portions of it into the record,” “identified 

and quoted the e-mail in its interrogatory responses that 

described evidence supporting Defendants’ defenses, produced 

the e-mail in discovery, and lodged a copy with the trial court in 

opposition to the privilege motion.” (Id. at p. 1122.) The court in 

McDermott concluded “this evidence shows Gibson Dunn thought 

it could use the e-mail to Defendants’ advantage in opposing [the 

plaintiff’s] claims” and “constitutes substantial evidence 

supporting the trial court’s finding disqualification was necessary 

to prevent future prejudice or harm.” (Ibid.) The court further 

observed that “[Clark v. Superior Court (2011) 196 Cal.App.4th 

37] established that an attorney who knowingly uses 

inadvertently disclosed, privileged materials to depose witnesses 

may affect the outcome of the lawsuit and therefore justifies a 

trial court’s exercise of its discretion to disqualify the attorney.” 

(Ibid.) Thus, the McDermott court’s conclusion that 

11 State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644. 

“State Fund is the seminal California decision defining a lawyer’s 

ethical obligations upon receiving another party’s attorney-client 

privileged materials.” (McDermott, supra, 10 Cal.App.5th at p. 1106.)
34

disqualification was appropriate relied in large part on the fact 

that the email obtained by Gibson Dunn contained inadvertently 

disclosed, privileged information. No such showing was made in 

this case. 

Although the court acknowledged that the purpose of 

disqualification motions is not to punish counsel, it also held that 

disqualification was appropriate, in part, because “it is apparent 

that Rothstein sought information to be used in this case to 

support the allegations of the SAC.” However, “it is one thing to 

say [Rothstein’s] conduct was unprofessional and showed bad 

judgment and quite another to say . . . that it warrants his 

disqualification.” (Gregori, supra, 207 Cal.App.3d at p. 309; 

accord, Oaks Management Corporation v. Superior Court (2006) 

145 Cal.App.4th 453, 471 [appearance of impropriety is not a 

sufficient ground to disqualify an attorney in California].) We 

conclude that the standard for disqualification has not been met. 
35

DISPOSITION

The order granting defendants’ motion to revoke 

Rothstein’s pro hac vice admission is reversed. Rothstein shall

recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting. P. J.

WE CONCUR:

EGERTON, J.

ADAMS, J.