Brasseaux v. Girouard, 2418

• Decision Date: 25 September 1968
• Docket Number: No. 2418,2418
• Citation: 214 So.2d 401
• Parties: Dunice P. BRASSEAUX, Plaintiff-Respondent, v. Ray J. GIROUARD, Defendant-Relator, and Pennsylvania Millers Mutual Insurance Company, Defendant-Respondent.
• Court: Court of Appeal of Louisiana — District of US

Page 401

214 So.2d 401

Dunice P. BRASSEAUX, Plaintiff-Respondent, v. Ray J. GIROUARD, Defendant-Relator and Pennsylvania Millers Mutual Insurance Company, Defendant-Respondent.

No. 2418.

Court of Appeal of Louisiana, Third Circuit.

Sept. 25, 1968.

Rehearing Denied Oct. 16, 1968.

Writ Refused Dec. 10, 1968.

J. Minos Simon, Lafayette, for defendant-relator.

Mouton, Champagne & Colomb by George J. Champagne, Jr., Lafayette, for defendant-respondent.

Domengeaux, Wright & Bienvenu by W. Paul Hawley, Lafayette, for plaintiff-respondent.

TATE, Judge.

These proceedings are before us under our supervisory powers. We granted certiorari on the defendant Girouard's application to review two interlocutory rulings presenting substantial issues of first impression in Louisiana. They concern (I) the trial court's refusal to disqualify counsel for Girouard's insurer from further appearance in these proceedings because of an alleged conflict of interest and (II) the court's refusal to suppress certain discovery depositions taken by that counsel for the insurer. We will discuss these issues separately.

I.

(a) Disqualification of counsel because of a conflict of

interest arising from prior representation of an

opposing party.

The plaintiff Brasseaux sues the defendant Girouard for personal injuries. They are claimed to have resulted when Girouard either intentionally or negligently shot Brasseaux. By supplemental and amending petition, Girouard's liability insurer (Pennsylvania) was impleaded as a codefendant. Pennsylvania's primary defense, in the direct action by Brasseaux against it, is that its policy does not apply to the accident in question because of a policy clause excluding coverage of injuries caused intentionaly by its insured (Girouard). This primary defense, of course, is antagonistic to the interest of the defendant Girouard, its insured.

After certain discovery depositions were taken, by rule to show cause Girouard sought to have the insurer's counsel disqualfied from further representation of it in these proceedings. The basis for this move by Girouard is an alleged conflict of interest arising from counsel's earlier representation of the insured, Girouard, in connection with the subject matter of this suit.

We will set forth at some length the applicable principles, since there was misunderstanding of them at the hearing below and since this is a case of first impression in this state.

As an inherent attribute of his profession, an attorney may not represent different interests which are hostile, or in conflict with one another. The canons of ethics of both national and state bar associations forbid the representation of conflicting interests except with consent of opposing parties and then only in limited circumstances. They further provide that the obligation to represent the client with undivided fidelity outlasts the lawyer's employment. Forbidden also, thus, is the subsequent acceptance by the lawyer of retainer by others adversely affecting any interest of his former client with respect to which the lawyer was retained.

See: Canons Six and Thirty-Seven, A.B.A. Canons of Professional Ethics which verbatim were adopted as Sections 6¹ and 37² of Article XIV, Articles of Incorporation, Louisiana State Bar Association, promulgated as rule of the Supreme Court of Louisiana by order of March 12, 1941 (found at pp. 121, 165, 177 of Volume 21A, West's Louisiana Revised Statutes, 1964 volume); DRINKER, LEGAL ETHICS 103--30, 131--39 (1953); Annotation, Propriety and effect of attorney representing interest adverse to that of former client, 52 A.L.R.2d 1243; Kaplan, Forbidden Retainers, 31 NYU L.Rev. 914 (1956).

When in violation of this principle and these canons an attorney does represent conflicting interests or does accept subsequent retainer adverse to an interest for which retained by a former client, the court in which the proceeding is pending should, upon timely motion by former client who objects to such possible violation of his confidence, disqualify counsel from continuing with the conflicting representation of the subsequent client. See: Comment, Unchanging Rules in Changing Times: The Canons of Ethics and Intra-Firm Conflicts of Interest, 73 YLJ 1058 (1964) and Note, Disqualification of Attorneys for Representing Interests Adverse to Former Clients, 64 YLJ 917 (1955)³ and decisions cited therein; COUNTRYMEN & FINMAN, THE LAWYER IN MODERN SOCIETY, 89--96, 117--135 (1966)⁴; Annotation, Attorney--Former Client, 52 A.L.R.2d 1243 at Sections 14--16, pp. 1279--86; 7 C.J.S. Attorney and Client §§ 47, 48; 7 Am.Jur.2d 'Attorneys at Law', Sections 156, 159.

See also such decisions as: United States v. Trafficante, 328 F.2d 117 (CA5, 1964); W. E. Bassett Co. v. H. C. Cook Co., 201 F.Supp. 821 (D.C., Conn.1961), aff'd. 302 F.2d 268 (CA2, 1962); Consolidated Theatres, Inc. v. Warner Bros. Circuit Management Corp., 216 F.2d 920, 52 A.L.R.2d 1231 (CA2, 1954); General Contract Purchase Corp. v. Armour, 125 F.2d 147 (CA5, 1942); Wilson v. Wahl, 182 Kan. 532, 322 P.2d 804 (1958); Boyd v. Second Judicial Dist. Court, 51 Nev. 264, 274 P. 7 (1929); Wingilia v. Ashman, 241 Mich. 534, 217 N.W. 909 (1928); Cochran v. Cochran, 333 S.W.2d 635 (Tex.Civ.App., 1960); Prichec v. Tecon Corp., 139 So.2d 712 (Fla.App., 1962).

Reasons assigned for the fairly strict disqualification principle followed by all Amercan jurisdictions in which the issue has arisen, have included its necessity in order to encourage maximum disclosure by clients to counsel of all relevant facts, without fear of future adverse use of this confidence. The courts also express as rationale that public confidence in the legal profession as a whole might otherwise be impaired. For these reasons of public policy, the general rule is that doubts in borderline cases should be resolved in favor of disqualification, with the important injunction being reiterated that, for these reasons, even the appearance of conflict should be avoided.⁵

As the sources cited show, the modern decisions hold that, to prove the existence of the lawyer's obligation not to represent a competing interest, the former client need prove only that matters embraced within the present suit are substantially related to the matters or cause of action wherein the attorney previously represented him. The courts may then infer the receipt of confidences violatable by the subsequent representation.

Probably the preponderant number of recent decisions further hold that disqualfication does not depend upon whether the attorney actually would or might be using or misusing confidential information acquired from the former client (see, e.g., Cord v. Smith, 338 F.2d 516, CA9, 1964, mandate modified, 370 F.2d 418, 1966, as well as many of decisions previously cited), in view of the policy basis of maintaining public confidence in the legal profession by avoiding even the appearance of impropriety in the eyes of the public. Other commentators suggest that disqualification is too stringent when in truth there is no real possibility of a former client's confidence being abused by the subsequent representation. For present purposes, we need do no more than point out this difference in view.

Not only the individual attorney who previously represented the client is thus subject to disqualification. An entire law firm is subject to disqualification whenever grounds for disqualification exist against any of its partners or law-associates. See Comment, previously cited, at 73 YLJ 1059--61 (citing many decisions to this effect); Kaplan, cited above, at 31 NYU L.Rev . 926--27; DRINKER, LEGAL ETHICS 106 (1953); ABA OPINIONS OF COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES (1957), Opinions 33, 49, 103, 142, 192. See, for instance (among the many decisions so holding), Consolidated Theatres, Inc. v. Warner Bros. Circuit Management Corp., 216 F.2d 920, 927, 52 A.L.R.2d 1231, 1241 (1954).

The canons and the duty to avoid conflicting representation apply in all instances of lawyer-client relationship, whether or not the relationship includes the agreement to pay a fee for the representation. DRINKER, p. 106; ABA OPINION 83. For the attorney-client relationship is not dependent on the payment of a fee; 'retainer'⁶ is sufficiently established when it it shown that the advice and assistance of a lawyer are sought and obtained in matters relevant to his profession. 7 C.J.S. Attorney and Client § 65; 7 Am.Jur.2d 'Attorneys at Law', Section 91; see, e.g.: Nicholson v. Shockey, 192 Va. 270, 64 S.E.2d 813 (1951); Prigmore v. Hardware Mut. Ins. Co., 225 S.W.2d 897 (Tex.Civ.App., 1949); Shoup v . Dowsey, 134 N.J.Eq. 440, 36 A.2d 66, 84--85 (1944).

Nevertheless, generally the former client may expressly or tacitly waive his objection and consent to his former counsel now representing a party with interests adverse to those involved in the lawyer's former representation of him. DRINKER, 120--22, also 114--18; Annotation cited, at 52 A.L.R.2d 1268 (Section 9); 7 C.J.S. Attorney and Client § 48; 7 Am.Jur.2d 'Attorney at Law', Section 157 .⁷ This is recognized by implication or expressly in many of the decisions previously cited. Tacit waiver has expressly been held in several instances to prevent invalidation of previous proceedings through the belated urge of cause for disqualification. Wojahn v. Faul, 242 Minn. 33, 64 N.W.2d 140 (1954); Gottwals v. Rencher, 60 Nev. 35, 47, 92 P.2d 1000, 98 P.2d 481, 126 A.L.R. 1262 (1954); Michel v. McKenna, 199 Wis. 608, 227 N.W. 396 (1929).

The specific conflict of interest before us arises out of counsel's previously representing both the insured and its insurer, although they now have conflicting interests. The principle of express consent is held sometimes to justify simultaneous or successive representation of both an insured and his liability insurer; this justification is based upon the usual policy provision requiring the insured to permit the insured's attorney to...