Carlson v. Langdon

Decision Date26 February 1988
Docket NumberNo. 87-133,87-133
Citation751 P.2d 344
PartiesCarl O. CARLSON, Jr., Petitioner, v. Honorable John LANGDON, Judge of the District Court of the Eighth Judicial District, Respondent.
CourtWyoming Supreme Court

Paul B. Godfrey, Godfrey, Sundahl & Jorgenson, Cheyenne, for petitioner.

Michael E. Warren, Sawyer, Warren & Kautz, Torrington, for respondent.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

ORDER REVERSING RULING WHICH DENIED DISQUALIFICATION OF ATTORNEY AND ORDER DISQUALIFYING ATTORNEY

This case came on before the court upon the Petition for a Writ of Prohibition or in the Alternative for Writ of Certiorari or Other Relief filed in this court on May 26, 1987; the order which this court entered on June 10, 1987, directing the preparation and certification of a record for review pursuant to the power of this court to grant certiorari and staying further proceedings in the district court; the Response Brief to Petition for a Writ of Certiorari, filed herein on July 24, 1987 on behalf of the Respondent; the Reply Brief of Petitioner, Carl O. Carlson, Jr., filed in this court on July 31, 1987; and the oral arguments on behalf of the parties heard on August 27, 1987, and the court, having considered the file and record of the court, the several pleadings described above and the arguments of the parties, finds that:

The court granted the writ of certiorari to consider whether the District Court of the Eighth Judicial District erred in denying a motion to disqualify an attorney from representing a defendant in a pending case. The pending case concerned a lease by the petitioner, Carl O. Carlson, Jr., of certain farm lands owned by his mother, Leva Carlson. Carl Carlson had leased, resided upon and conducted farming and ranching operations on the land since, at least, the death of his father in 1971. In 1973, Carl Carlson determined that it was necessary to make certain improvements on the land to make the farming operations profitable. Leva Carlson agreed to Carl Carlson's request for the improvements, but she was financially unable to provide the necessary funds. Carl Carlson agreed to furnish the funds for the improvements, provided that his interest was protected. The record is not clear as to which of the Carlsons engaged A.B. to draft the agreement for them. Both Carl Carlson and Leva Carlson were present when A.B. was consulted to draft the agreement to implement their intentions with respect to the improvements. Carl Carlson had used the services of A.B. on several occasions prior to the drafting of the 1973 agreement, and, apparently, Leva Carlson also had consulted A.B. on several occasions. Carl Carlson testified that, when the 1973 agreement was drafted, he considered A.B. to be the attorney for both Leva Carlson and himself. Because of this, they mutually sought A.B.'s assistance for the purpose of formalizing their agreement. A.B. represented Carl Carlson on several occasions following the preparation of the 1973 agreement, including matters relating to the land leased from Leva Carlson.

Leva Carlson had an unsecured note at the Citizens National Bank & Trust Co. (Citizens). On January 4, 1985, Citizens wrote a letter to Leva Carlson advising her that it had reviewed the loan and other documents, including her agreement to sell the land to Carl Carlson. Citizens noted a poor record of repayment and the unsecured position that it held, and it advised Leva Carlson to pursue one of three alternative courses of action prior to the due date of the note which was March 11, 1985. One of those courses of action was that Leva Carlson sell the farm to pay Citizens. This was the course of action chosen by Leva Carlson. To accomplish the sale, she consulted a second attorney, C.D., who advised Carl Carlson that Leva Carlson intended to terminate the lease and that the provisions of the 1973 agreement would be invoked.

Upon being contacted by C.D., Carl Carlson again consulted A.B. about the legal effect of the 1973 agreement, and whether it permitted Leva Carlson to terminate the lease. A.B. advised Carl Carlson:

"It appears that your mother's position is correct that if the lease terminates then the option provided in Paragraph 3 on the death of your mother is cancelled. I suppose it could be argued that you have not ceased to rent the above-described property on your own volition, but I am not certain that would carry any weight in the court or is what was intended.

"I don't have a copy of any lease agreement, so before I write to * * * [C.D.], I would ask that you drop by a copy of the lease so I can read it since it becomes important in evaluating the commencement or termination of certain rights under the agreement."

In a second letter, A.B. stated that, after reviewing the lease agreement, it was his opinion that the stance adopted by C.D. on behalf of Leva Carlson was correct and that Leva Carlson could terminate the lease.

Carl Carlson then consulted a law firm in a different town about his rights. After reviewing the situation, E.F., one of the attorneys in the new firm, filed an action in which both Leva Carlson and Citizens were named as defendants. The complaint alleged that the defendants maliciously had conspired to interfere with the contractual relationship between Leva Carlson and Carl Carlson, and that, by their actions, they intentionally had inflicted emotional distress upon Carl Carlson. In addition, the complaint requested the court to declare that, under the terms of the lease, Leva Carlson could not terminate the lease, except in the event of her death. C.D., for Leva Carlson, answered the complaint, denying the several allegations and asserting counterclaims for affirmative relief. A.B., the attorney who prepared the 1973 agreement and furnished advice with respect to its legal effect to Carl Carlson, appeared and answered on behalf of Citizens.

Concerned with a possible conflict of interest because of A.B.'s representation of Citizens, E.F., on behalf of Carl Carlson, requested A.B. to withdraw from the case. A.B. refused, advising that he did not perceive a conflict of interest to be present, unless he were called as a witness in the case, in which event he would withdraw. He further advised that, according to his records, the preparation of the 1973 agreement was accomplished for Leva Carlson only and that he had obtained her consent to represent Citizens in the case. Following this advice, Carl Carlson filed a motion in the district court requesting A.B.'s disqualification. The court set the motion for hearing, and Carl Carlson testified about his relationship with A.B. In the course of the hearing, the district court stated that it considered the matter of payment for A.B.'s services "of utmost importance." Carl Carlson contended that he, in fact, had paid for A.B.'s services in drafting the 1973 agreement, but the corroborating evidence he presented was a check to Leva Carlson which he testified was, in part, to pay for A.B.'s services in the drafting of that agreement. Carl Carlson could not produce any corroborating evidence to establish that he paid A.B. for advice in the two letters relating to his rights under the 1973 lease agreement.

The district court denied the motion for disqualification. Four grounds were articulated for that denial: first, the court advised that it was reluctant to involve itself in disputes among attorneys; second, the court stated that there was doubt that A.B. had represented Carl Carlson formerly because of the absence of evidence of payment for services in connection with the 1973 agreement; third, the court articulated doubt that any confidential information was disclosed with respect to the preparation of the 1973 agreement, assuming arguendo that an attorney-client relationship did exist; and fourth, the district court stated that it would apply the parol evidence rule with respect to the agreements which made it likely that A.B. would not be permitted to testify in the case. The court did say that if A.B. were called to testify it would entertain a disqualification motion at the trial. Carl Carlson then sought relief in this court pursuant to a petition for a writ of prohibition or in the alternative a writ of certiorari.

This court concluded that it was appropriate to review the question presented pursuant to the petition for writ of certiorari. A.B.'s representation of Citizens in the action pending in the district court is contrary to Rule 1.9 of the Rules for Professional Conduct for Attorneys at Law, and the district court erred in not granting the motion to disqualify A.B. A.B. should be disqualified from representation of Citizens in the pending action. Our conclusion that disqualification of A.B. is required by this rule makes it unnecessary to address other arguments asserted on behalf of Carl Carlson to support his claim of error.

Rule 1.9 of the Wyoming Rules for Professional Conduct for Attorneys at Law provides:

"A lawyer who has formally represented a client in a matter shall not thereafter:

"(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation except that when the former client is a governmental entity, consent is not permitted; or

"(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known."

A.B. contends that there is no violation of Rule 1.9, W.R.P.C., because the record does not support formal representation of Carl Carlson by A.B. Reliance is placed upon the absence of evidence to refute A.B.'s records demonstrating that Carl Carlson did not pay for the services in connection with the preparation of the 1973 agreement or for any advice which was furnished pertaining to that...

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    ...where we observed that afederal appellate court would have relied on the collateral order doctrine for jurisdiction. Carlson v. Langdon, 751 P.2d 344, 350 (Wyo. 1988) (reviewing order disqualifying attorney pursuant to writ and comparing that to federal court review under collateral order d......
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