Derrickson v. Derrickson

• Decision Date: 29 April 1988
• Docket Number: No. 86-1010.,86-1010.
• Citation: 541 A.2d 149
• Parties: Carroll M. DERRICKSON, Appellant, v. Lloyd DERRICKSON, Appellee.
• Court: D.C. Court of Appeals

541 A.2d 149

Carroll M. DERRICKSON, Appellant, v. Lloyd DERRICKSON, Appellee.

No. 86-1010.

District of Columbia Court of Appeals.

Argued November 17, 1987.

Decided April 29, 1988.

John W. Karr, with whom William G. McLain, Washington, D.C., was on the brief, for appellant.

Daniel G. Grove, with whom Carol A. Joffe and David Kovach, Washington, D.C., were on the brief, for appellee.

Before MACK, TERRY and ROGERS, Associate Judges.

MACK, Associate Judge:

On June 24, 1986, the Superior Court granted appellee's motion to disqualify Mark Sandground, Esquire, from appearing as counsel for appellant (appellee's exwife) in domestic relations litigation pending before that court. The court found that, because appellee had previously consulted Sandground, an attorney-client relationship had existed between the two, that there was a substantial relationship between the litigation before the court and the prior consultation, and that disqualification was thus appropriate under the Canons of Ethics. The court certified its order for interlocutory appeal and this appeal followed. We reverse and remand for further proceedings.

I.

In December, 1985, Mrs. Carroll Derrickson, through her newly-retained counsel, Mark Sandground, Esquire, filed a motion to increase the alimony and support payments she received from her ex-spouse, Lloyd Derrickson. Although the Derricksons had for some nine years been engaged in litigation stemming from the dissolution of their marriage, this marked the first appearance of Sandground.

Lloyd Derrickson responded with a motion to disqualify counsel. Mr. Derrickson alleged that approximately eight years earlier he had consulted with Sandground regarding the possible appeal of the Judgment of Absolute Divorce. According to his affidavit, the meeting lasted for approximately an hour and dealt generally with facts and issues in the divorce proceeding. At the conclusion of this meeting, Mr. Derrickson decided not to retain Sandground. Mr. Derrickson, at the hearing on the disqualification motion, admitted that he had "no memory of exactly what was discussed."¹

In opposing the motion to disqualify, Sandground stated by affidavit that he never entered into an attorney-client relationship with Mr. Derrickson, never received any confidential information and had no recollection of the events of the alleged meeting. Sandground was emphatic: "I have absolutely no memory of ever meeting Lloyd Derrickson. . . . I have searched through our file records and there isn't a single notation concerning Lloyd Derrickson." Sandground continued: "I never became Mr. Derrickson's counsel; I never entered into an attorney-client relationship with him; I never received any compensation from him; I never received any confidential information from him; nor any confidential communication of any kind whatsoever."

For her part, Mrs. Derrickson, by affidavit, stated the importance to her of having Sandground serve as her attorney: "I believe that it is important that I have confidence in the lawyer I select, and that I have the right to be represented by the attorney that I myself choose. I chose Mr. Sandground because I believe him to be a lawyer who will aggressively move ahead in my matrimonial litigation to seek my lawful objectives."

After oral argument on the motion, the trial court granted the motion to disqualify and accordingly struck the appearance of Sandground as counsel for Mrs. Derrickson.² The issue now presented to this court is whether the trial court abused its discretion in disqualifying appellant's attorney.

II.

This court has not often had the opportunity to discuss the circumstances in which disqualification of counsel is appropriate. When the opportunity has arisen, most often the circumstances have involved the possible conflict of interest of a former government attorney engaged in private practice. In Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc), for example, this court affirmed the Zoning Adjustment Board's decision that two former government attorneys and their law firm should not be disqualified from representation in a matter which was currently pending before the Board. The court noted that the concern in such cases was that counsel might have received "confidential information from [a] former client that could be used against it in the subsequent representation." Id. at 42. This court adopted the rule developed in T. C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y. 1953): "Where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited." 486 A.2d at 42.³

In a footnote frequently cited and ultimately embraced by both counsel in the instant case, this court in Brown (quoting T.C. Theatre, supra, 113 F.Supp. at 268-69) explained the operation of the rule. "`[T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client.'" 486 A.2d at 42 n. 5. This court continued, "`[i]n order to grant a disqualification motion, a court should not require proof that an attorney actually had access to or received privileged information while representing the client in a prior case.'" 486 A.2d at 42 n. 5 (quoting Government of India v. Cook Industries, Inc., 569 F.2d 737, 740 (2d Cir. 1978)). Rather, "when a party seeking disqualification carries its burden of persuading the factfinder that two matters, handled by the same counsel, are substantially related, there is an irrebuttable presumption[⁴] that counsel received information during the first representation that is relevant to the second." 486 A.2d at 42 n. 5 (emphasis added).

It is apparent from this court's explanation of the rule that two showings by the party seeking disqualification are required. First, the party must show that an attorney-client relationship formerly existed; the rule speaks in terms of "former client" and "former attorney." Second, the party must show that the current litigation is substantially related to the prior representation.⁵ If these two showings are made, then the party seeking disqualification need not show that confidential information was actually transmitted to the attorney or that the attorney to be disqualified has recall of that information. Similarly, even if the attorney to be disqualified shows that he did not have access to or does not recall confidential information, this will not defeat the presumption which has been created. The problem arises here, however, not in connection with the second showing, but with the first.

III.

It is true of course that disqualification of an attorney is a matter which rests within the sound discretion of the trial court and will not be overturned absent a showing of abuse. O'Neil v. Bergan, 452 A.2d 337, 344 (D.C. 1982); see also Mondello v. Mondello, 118 A.D.2d 549, 499 N.Y.S.2d 9 (1986). Moreover, there is authority for the proposition that in "`a disqualification situation, any doubt is to be resolved in favor of disqualification.'" 118 A.D.2d at 550, 499 N.Y.S.2d at 10 (citation omitted).⁶ Notwithstanding this, we conclude that the trial court, on the basis of the information before it, erred in disqualifying appellant's counsel.

It is useful first to set out in some detail the trial court's findings⁷ or more accurately the lack of findings, as to the first showing — i.e., the existence of an attorney-client relationship:

[T]he nature of whether or not an attorney represents a client in the context in which matters must be held in confidence extends beyond mere payment of a fee. [T]he circumstances surrounding the consultation provides some information about or the proper focus for whether or not an attorney-client relationship was established. . . . The plaintiff consulted with Mr. Sandground for approximately one hour for the purpose of discussing the recourse which should be taken as the result of a decision rendered by a judge of this Court including whether or not the decision was appropriate and whether or not an appeal should be taken and various strategies underlying that and other matters. . . . [T]his discussion was a two way discussion and although no fee was subsequently paid, in this Court's view, the circumstances provide a sufficient background to require some adherence to the Canons of Ethics. . . .

While the trial court is surely correct that the existence of an attorney-client relationship should not turn upon whether a fee has been paid, the trial court erred in concluding "that the circumstances provide a sufficient background" to warrant disqualification. In point of fact, the trial court never specifically states that an attorney-client relationship was formed as a result of the consultation between appellee and Mr. Sandground. Rather, the trial court simply expresses its concern that the circumstances require adherence to the canons applicable to the attorney-client relationship; thus the finding is akin to one that states that disqualification is required to avoid the appearance of impropriety. We are troubled, however, that the brief consultation in the circumstances here, without more, could form the legal basis for an attorney-client relationship leading to an irrefutable presumption that the attorney consulted has received privileged information.

Our concern can be explicated through a comparison of two Massachusetts cases. In Mailer v. Mailer, 390 Mass. 371, 455...