Farrington v. Law Firm of Sessions, Fishman

• Decision Date: 25 February 1997
• Citation: 687 So.2d 997
• Parties: 96-1486 La
• Court: Louisiana Supreme Court

Page 997

687 So.2d 997

96-1486 La. 2/25/97

Deborah FARRINGTON v. The LAW FIRM OF SESSIONS, FISHMAN et al.

No. 96-CC-1486.

Supreme Court of Louisiana.

Feb. 25, 1997.

Rehearing Denied March 27, 1997.

Jack Marks Alltmont, Alan David Ezkovich, Sessions & Fishman, New Orleans, for Applicant.

Elizabeth A. Alston, Maria Garcia Marks, New Orleans, for Respondent.

[96-1486 La. 1] MARCUS, Justice ^*.

Deborah Farrington filed a petition for "Breach of Fiduciary Duty, Damages and Legal Malpractice" against the law firm of Sessions, Fishman, Boisfontaine, Nathan, Winn, Butler and Barkley (the Sessions firm), four individual members of the Sessions firm and the firm's liability insurer. Plaintiff and Roger Cope purchased the business of Town & Country Shop, Inc., a closely held corporation, as equal shareholders. Mr. Cope became president of the corporation and plaintiff a vice-president. Subsequent to the purchase, Mark Fullmer and Charles Wallfish of the Sessions firm were asked to draft some documents and assist in other corporate matters pertaining to Town & Country. Plaintiff alleges that a power struggle ensued between the two shareholders and their relationship degenerated. At the request of Mr. Cope, the corporation, represented by two members of the Sessions firm, Jack Alltmont and Alan Ezkovich, filed suit against plaintiff to enjoin her from causing harm to the corporation. That lawsuit was eventually settled.

Plaintiff then brought the instant suit alleging that certain members of the Sessions firm, Mark Fullmer, Charles Wallfish, Jack Alltmont and Alan Ezkovich, breached their responsibility to her as a former client in failing to adequately advise her of the consequences that could result from the manner in which the [96-1486 La. 2] corporation was structured and in creating a conflict of interest by representing the corporation and Mr. Cope in a lawsuit filed against her. Defendants, represented by Mr. Ezkovich of the Sessions firm, answered the petition denying that they ever represented plaintiff in an individual capacity or that they breached any duty owed to her as lawyers for the corporation.

During discovery, plaintiff deposed Mr. Fullmer who was represented by Mr. Ezkovich, without objection from plaintiff. ¹ However, when defendants attempted to depose plaintiff, she filed a motion for a protective order and to stay the taking of her deposition until an attorney who was not a member of the Sessions firm was appointed to represent defendants. She alleges that defendants have a conflict of interest in representing themselves due to their alleged former attorney-client relationship with her and a protective order is necessary in this instance to avoid annoyance, embarrassment and oppression she would suffer should these attorneys be allowed to proceed as advocates on their own behalf. After a hearing, the trial judge denied the motion to stay the taking of plaintiff's deposition and refused to disqualify the Sessions firm and all lawyers therein from representing themselves as defendants in the matter. The court of appeal granted plaintiff's application for a writ finding that the continued role of the Sessions firm as advocates in this legal malpractice cause of action violated Rule 3.7(a) of the Louisiana Rules of Professional Conduct. This court granted defendants' application for review and remanded the matter to the court of appeal for briefing, argument and opinion to consider whether Rule 3.7(a) of the Rules of Professional Conduct should preclude a lawyer from [96-1486 La. 3] representing himself and testifying as a party litigant. ² On remand, three judges of a five judge panel held that Rule 3.7(a) applied to disqualify defendants from proceeding as advocates in this matter. ³ Two dissenting judges were of the opinion that under the circumstances of this case, the trial judge acted properly in permitting the attorneys to participate in discovery matters. Upon defendants' application, we granted certiorari to review the correctness of that ruling. ⁴

The narrow issue we must decide is whether a lawyer who is sued by an alleged former client on grounds of malpractice has the right to conduct adversarial proceedings on his or her own behalf.

La. Const. Art. I, § 22 guarantees every person the right of access to the courts. It provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

Our courts have recognized the right of litigants in civil proceedings to represent themselves in court. See Dixon v. Shuford, 28,138 (La.App.2d Cir. 4/3/96); 671 So.2d 1213, 1215; Teague v. International Paper Co., 420 So.2d 522, 523 (La.App. 2d Cir.1982); see also, Green v. Gary Memorial Hospital, 505 So.2d 196, 198 (La.App. 3d Cir.1987)(there is no authority for forcing counsel on a party litigant). The right of self-representation is provided for statutorily under federal law. 28 U.S.C. § 1654. Implicit in the right to represent oneself is the right to be represented by counsel of one's choice. Harrison v. Keystone Coca-Cola Bottling Co., 428 F.Supp. 149 (M.D.Penn.1977).

Rule 3.7 of the Louisiana Rules of Professional Conduct prohibits a lawyer from acting as an advocate in a trial in which the lawyer is likely to be called as a necessary witness except [96-1486 La. 4] under certain circumstances. ⁵ It provides in pertinent part:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) The testimony relates to an uncontested issue;

(2) The testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Rule 3.7 does not address the situation where the lawyer is representing himself. The Comments to Rule 3.7 of the American Bar Association Model Rules of Professional Conduct (from which our Rule 3.7 is taken verbatim) state that the rationales of the advocate-witness rule do not apply to the pro se lawyer litigant. ABA, Annotated Model Rules of Professional Conduct, p. 362 (3d ed. 1996). In Presnick v. Esposito, 8 Conn.App. 364, 513 A.2d 165 (1986); on remand, Esposito v. Presnick, 15 Conn.App. 654, 546 A.2d 899 (1988), the court held that a lawyer may represent himself and testify as a witness in an action for collection of legal fees and in defense of a counterclaim for malpractice in the same action. In rejecting the applicability of DR 5-101 and 5-102 (the predecessors to Rule 3.7) to the lawyer who is representing himself, the court explained the rationales behind the rule:

One reason is that it is unfair to the client that his case be presented through a witness whom the trier of fact would necessarily view as interested because of the witness' zeal of advocacy and likely interest in the result of the case. A second reason is one of public policy: permitting an attorney who is trying a case also to be a witness in establishing its facts will visit on the legal profession public distrust and suspicion arising from the attorney's dual role. That is the reason which Professor Wigmore believed to be the most potent reason for the prohibition of the attorney as a witness on behalf of his client. The public will be apt to think that the lawyer, whether he is an active partner in the conduct of the trial and [96-1486 La. 5] also a material witness, or an inactive partner and a material witness, will be inclined to warp the truth in the interest of his client. The third reason for the rule is to avoid the appearance of wrongdoing. We do not believe that any of these reasons applies where the attorney seeks only to represent himself in his own case. (Citations omitted)(emphasis added). Presnick, 513 A.2d at 167.

In Borman v. Borman, 378 Mass. 775, 393 N.E.2d 847 (1979), the court held that the husband's law partners could not be disqualified simply because the husband, a party, would be a witness in the domestic relations proceedings. At issue was the husband's right to counsel of his own choosing, his own law firm. The court held:

To apply DR 5-102 when the testifying advocate is a litigant in the action miscomprehends the thrust of the rule. DR 5-102 regulates lawyers who would serve as counsel and witness for a party litigant. It does not address that situation in which the lawyer is the party litigant. Any perception by the public or determination by a jury that a lawyer litigant has twisted the truth surely would be due to his role as litigant and not, we would hope, to his occupation as a lawyer. As a party litigant, moreover, a lawyer could represent himself if he so chose. Implicit in the right of self-representation is the right of representation by retained counsel of one's choosing. A party litigant does not lose this right merely because he is a lawyer and therefore subject to DR 5-102. (Citations omitted)(emphasis added). Borman, 393 N.E.2d at 856.

We agree with the reasoning expressed in the above cases that Rule 3.7 does not apply to the situation where the lawyer is representing himself. ⁶

Plaintiff argues that even assuming that Rule 3.7 does not apply to disqualify a lawyer from self-representation, defendants are nevertheless precluded from proceeding as advocates in this litigation due to their alleged former attorney-client relationship with her. She contends that when a lawyer is sued for malpractice by a former client, the lawyer has a continuing duty to the former [96-1486 La. 6] client under Rules 1.7 and 1.9 which precludes the lawyer from representing himself in defense of the malpractice claim. We disagree.

Rule 1.7 recognizes...