Clinard v Blackwood, 98-00029

CourtCourt of Appeals of Tennessee
PartiesJOHN M. CLINARD and EDWARD CLINARD, Plaintiffs/Counter-Defendants/Appellees, VS. C. ROGER BLACKWOOD and NANCY DODS BLACKWOOD, Defendants/Counter-Plaintiffs/Appellants, VS. AMERICAN LIMESTONE CO., INC., Counter-Defendant/Appellee, and AUSTIN POWDER CO., INC., Counter-Defendant. AppealIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Filed
Docket Number98-00029
Decision Date28 October 1999

JOHN M. CLINARD and EDWARD CLINARD, Plaintiffs/Counter-Defendants/Appellees,
C. ROGER BLACKWOOD and NANCY DODS BLACKWOOD, Defendants/Counter-Plaintiffs/Appellants,
AMERICAN LIMESTONE CO., INC., Counter-Defendant/Appellee, and AUSTIN POWDER CO., INC., Counter-Defendant.

Appeal No. 01A01-9801-CV-00029


Filed October 28, 1999


Robertson Circuit No. 8674


This appeal involves the imputed disqualification of a Nashville law firm from continuing to represent a client with interests adverse to those of two former clients of one of the law firm's lawyers. Soon after discovering that their former lawyer had joined the law firm representing their adversaries, the former clients filed a motion in the Circuit Court for Robertson County seeking to disqualify their adversaries' law firm. The law firm conceded that the lawyer was personally disqualified but opposed disqualifying the entire firm by asserting that it had instituted a screening arrangement intended to shield the disqualified lawyer and his secretary from the rest of the firm. The trial court declined to disqualify the law firm but permitted the former clients to pursue an interlocutory appeal. We have determined that a screening arrangement will not prevent the disqualification of the law firm in this case. The disqualified lawyer had at one time served as his former clients' primary lawyer in the very lawsuit before the trial court and, therefore, had become heavily involved with the facts of the case and had directly received confidential information from his former clients. Accordingly, we reverse the order denying the motion to disqualify and remand the case with directions that the trial court enter an order disqualifying the plaintiff's law firm.

For C. Roger Blackwood and Nancy Dods Blackwood:
J. Clarence Evans, Winston S. Evans, Evans, Jones & Reynolds, Nashville, Tennessee

For John M. Clinard and Edward Clinard and American Limestone Co., Inc.:
Ames Davis, Paula D. Walker, Waller, Lansden, Dortch & Davis, Nashville, Tennessee





In the late 1960s, Maclin P. Davis, Jr., then a partner in the Nashville law firm of Waller, Lansden, Dortch & Davis, represented C. Roger Blackwood in a divorce proceeding. Thereafter, Mr. Davis represented Mr. Blackwood in other matters. After Mr. Blackwood married Nancy Dods Blackwood in 1973, Mr. Davis represented Ms. Blackwood as well.(FN1) In 1988, Mr. Davis joined the Nashville office of Baker, Donelson, Bearman & Caldwell, a large law firm with offices in six cities in Tennessee.(FN2) As far as this record shows, Mr. Davis continued to represent the Blackwoods in various matters following his lateral move between firms.

The Blackwoods own a farm in Robertson County that adjoins property owned by John M. and Edward Clinard. For many years, the Clinards leased their property to various companies that quarried limestone on the site. Two disputes arose between the neighbors after the Blackwoods began building a new home on their farm. First, Mr. Blackwood and John Clinard disagreed about the location of their boundary line.(FN3) Second, the Blackwoods asserted that blasting at the quarry had damaged their new house and stable. According to Mr. Blackwood, American Limestone Company, Inc. ("American Limestone") moderated the blasting and performed some clearing and excavation work for the Blackwoods after he complained about the blasting. However, the Blackwoods later asserted that the blasting at the quarry caused extensive damage to their house.

In February 1996, Mr. Blackwood repaired portions of the fence along Pepper Branch Creek that had sparked his earlier disagreement with John Clinard over the location of the boundary line. Two months later, the Clinards filed a declaratory judgment action against Mr. Blackwood in the Chancery Court for Robertson County seeking to establish the disputed boundary line. Mr. Blackwood retained Mr. Davis to represent him in the lawsuit.

On May 16, 1996, Mr. Davis formally entered an appearance in the case on behalf of Mr. Blackwood. Later, on June 24, 1996, Mr. Davis filed an answer and counterclaim against the Clinards asserting that the fence was the proper boundary line and requesting that the Clinards be enjoined from removing or damaging the fence. Mr. Blackwood and Mr. Davis also discussed filing a counterclaim and third-party claim against the Clinards and American Limestone for blasting damage to their property. However, Mr. Davis eventually informed Mr. Blackwood that he could not file a claim against American Limestone because the Baker, Donelson firm represented American Limestone in an unrelated environmental matter and because American Limestone had declined to permit Mr. Davis to represent interests adverse to the company's. Accordingly, on August 14, 1996, Mr. Davis withdrew as Mr. Blackwood's lawyer and was replaced by Winston S. Evans.

On September 30, 1996, Mr. Evans filed an amended counterclaim and third-party claim on behalf of the Blackwoods against the Clinards and American Limestone. In this pleading, the Blackwoods sought damages from both the Clinards and American Limestone for negligent blasting, dumping a large amount of contaminated fill material on their farm, and polluting the air with dust from the quarry operations.(FN4) On October 29, 1996, Ames Davis and Waller, Lansden, Dortch & Davis entered an appearance on behalf of American Limestone. Approximately one month later, Ames Davis and Waller, Lansden, Dortch & Davis replaced the lawyer who had represented the Clinards from the outset of the litigation.

In June 1997, Mr. Davis left the Baker, Donelson firm and returned to Waller, Lansden, Dortch & Davis as a non-equity member of the firm. By that time, the Waller firm had grown to approximately one hundred lawyers. Upon Mr. Davis's return, the Waller firm implemented its "Conflict of Interest Screening Procedures" to prevent Mr. Davis and his secretary from communicating information concerning the Blackwoods' case to the other lawyers and staff of Waller, Lansden, Dortch & Davis.(FN5)

On August 12, 1997, soon after discovering that Mr. Davis had returned to the Waller firm, the Blackwoods' lawyer mailed a letter to Ames Davis stating that the Blackwoods did not assent to the Waller firm's representation of either the Clinards or American Limestone and requesting the Waller firm to withdraw from the pending lawsuit. Thereafter, on September 22, 1997, the Blackwoods filed a motion in the Circuit Court for Robertson County(FN6) seeking to disqualify Waller, Lansden, Dortch & Davis from continuing to represent the Clinards and American Limestone. The Waller firm opposed the motion. The trial court considered the motion based on affidavits without conducting an evidentiary hearing. On December 16, 1997, the trial court declined to disqualify the Waller firm but authorized the Blackwoods to seek an interlocutory appeal. On January 14, 1998, this court granted the Blackwoods' Tenn. R. App. P. 9 application.


The practice of law has changed dramatically during the last half of the twentieth century. Greater numbers of lawyers practice in firms rather than as sole practitioners or in small associations.(FN7) The number and size of these law firms have grown at an accelerating pace,(FN8) and much of this growth has been accomplished through mergers and the lateral hiring of experienced lawyers.(FN9) In this environment, the generation of revenue and the maximization of profit have become important, if not primary, drivers of the law firm's culture.(FN10)

At the same time that the structure and size of firms have been changing, so have the career goals and attitudes of lawyers themselves. As late as twenty years ago, it was not uncommon for lawyers to spend their entire career with the law firm that hired them right out of law school. Today, there is increased mobility among lawyers, and it is not uncommon for associates and even partners to change firms several times during their career because of mergers or firm restructuring or because they desire to increase their personal income by creating new firms.(FN11) It is also becoming common for law firms to hire temporary lawyers to work a particular piece of business with no expectation of continued employment once the business is completed.

The changes in the legal profession have also been accompanied by changes in the relationships between law firms and their clients. In today's competitive, cost-conscious environment, clients wield more power than they once did. Clients are now more conscious of the cost of legal services. Rather than remaining with a single lawyer or law firm as they once did,(FN12) clients today will frequently shop around for legal services or will look to in-house attorneys to provide these services. Because of the increased complexity of the legal matters facing clients and the growing specialization among lawyers, it is also quite common for clients to be represented by more than one lawyer or law firm at any given time.

These changes in the legal landscape, whether they be lamented or welcomed, have had a tendency to generate more conflict of interest problems than ever before.(FN13) These problems have placed a strain on the ethics rules governing the conduct of lawyers. The bench and the bar have realized that the traditional rules must be adapted to provide practical solutions for the problems currently facing lawyers and clients. The profession is now engaged in the process of formulating functional rules that give proper weight to the differing, and sometimes competing, interests of all parties concerned. Thus, the traditional core professional values of client loyalty, the preservation of a client's confidences...

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