Two interesting DQ opinions were issued last week and illustrate offensive and defensive disqualification (among other issues).
The first case involves a somewhat common scenario: the same firm represents two (or more) parties, but those parties have potentially or actually conflicting positions, claims, or defenses. Seeing this apparent conflict, the attorney on the other side often wonders whether the firm has secured informed consent from its joint clients, whether the conflict is waivable in any event, and if not, whether the attorney has standing to challenge the opposing firm’s conflicted representation. Here, the firm represented codefendants (i.e., a property management company and the owner of a rental property), defending against a renter’s suit because the renter had slipped and fallen inside the property. In moving for summary judgment, the firm asserted, among other arguments, that only the owner (not the property management company) could be liable to the renter. The opposing attorney apparently did not move to disqualify the firm on the basis of this conflict issue (i.e., that the codefendants were represented by the same firm, that the property management company was, in essence, pointing the finger at the owner, and that the owner was refraining from pointing the finger back at the property management company even though the company had a contractual obligation to the owner to prepare the property for occupancy and to schedule repairs); just to speculate, perhaps the opposing attorney was hesitant to file another motion to disqualify because the court had already denied the attorney’s earlier motion to disqualify the firm (because the firm had timely screened a conflicted lateral lawyer). At least the second time around, however, the court spotted the apparent conflict issue and sua sponte ordered the parties to brief the issue.
After a hearing, the court disqualified the firm. The court noted numerous ways in which each codefendant could point the finger at the other: “the majority of these positions, which logically might assist each defendant in exonerating itself from liability, have not been asserted in this matter. Indeed, of those listed above, only [the property management company’s] argument that it is not a possessor and thus cannot be held liable has been put forth. These potential different defenses present substantially different possibilities of settlement of the claims and liabilities in question.” Furthermore, the court was worried about the possibility that the firm might have to cross-examine one of its clients at trial: “direct adversity between the two defendants is imminent at trial once counsel for [the renter] begins its inquiry regarding which party bore the duty of inspecting the [property] and which bore the duty of repairing the [property]. Adducing evidence from one defendant that the other was obligated to either report or repair defects in the property would exculpate one defendant at the expense of the codefendant.” The court then concluded that even “if this conflict was waiveable, it was not properly waived.” The court noted in this regard that the “burden of proof, on the issue of informed consent, is on the attorney seeking to represent two conflicting parties.” Although the firm stated in a conclusory filing that the codefendants had indeed waived the conflict, “there was nothing on the record to suggest that the parties were at any point apprised of what they were potentially forfeiting when they agreed to a joint defense. As [the firm] appeared to not have considered or developed potential individual defenses by the time of the hearing [on this conflict issue], it seems quite unlikely they were shared as possibilities with the defendants themselves.”
The full opinion is available here: Denero v. Palm Horizons Mgmt., Inc. (D.V.I. 2015).
The second case involves another recurring scenario (but fortunately a rarer one): when a judge disqualifies a lawyer (or strikes the lawyer’s notice of appearance or denies the lawyer’s pro hac vice application) because the lawyer might in turn cause the judge’s disqualification. Courts often consider it misconduct when a lawyer or litigant attempts to engineer a judge’s recusal by purposely associating with counsel who has a disqualifying connection (e.g., financial, familial, representative) to the judge. If the court suspects such judge-shopping or similar strategic motives, the judge stays and the lawyer goes. Approximately three years into the personal-injury case at hand (and after the defendant had previously moved unsuccessfully to disqualify the judge), a lawyer filed a notice of appearance as co-counsel for the defendant. This lawyer was primarily a domestic relations attorney and was representing the judge’s ex-husband in an unrelated matter. The trial court struck “the notice of appearance filed by [the lawyer and] explained that it believed that the retention of [the lawyer] was a pretext to try to get her excused from the case.” The trial court relied primarily on three facts in so ruling: “(1) the case’s nearly three-year pendency at the time [the lawyer] was hired; (2) [opposing counsel’s] uncontradicted sworn statements [that the defendant’s other lawyer knew that this co-counsel arrangement might cause the judge’s recusal]; and (3) the fact that a review of [the lawyer]’s website indicated that she had no expertise in personal-injury or corporate work, and that her primary focus was in domestic relations matters.” The court of appeals affirmed, concluding that “the evidence that counsel had been hired to engineer Judge Ghiz’s recusal was completely uncontroverted and, by itself, more than sufficient to justify the trial court’s action.”
The full opinion is available here: Shen v. Lam, 2015 Ohio 3321 (Ohio Ct. App. 2015).