Close of Relationship Between Firm and “Of Counsel” Found Dispositive.
Presiding Justice Mallano, on behalf of a 3-0 panel of the Second District, Division 1, adopted a bright-line test in Sands & Associates v. Juknavorian, Case No. B232686 (2d Dist., Div. 1 Oct. 10, 2012) (published). The appellate court decided that a firm represented by “of counsel” in a fee dispute cannot recovery attorney’s fees as the prevailing party based on the Trope v. Katz self-representation prohibition. This was based upon the closeness of the relationship between a law firm and “of counsel” (a single, de facto firm). (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., 20 Cal.4th 1135, 1153 (1999).) Justice Mallano also provided a nice summary of the leading cases in this area–PLCM Group, Gilbert, Witte, Carpenter, Mix, and Ramona–in adopting a bright-line rule in the “of counsel” context.
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