Fognani v. Young

Decision Date14 February 2005
Docket NumberNo. 04SA303.,04SA303.
Citation115 P.3d 1268
PartiesIn Re: Victor FOGNANI and Anna Marie Fognani, Plaintiffs, v. Robert S. YOUNG and Southern Colorado Clinic, P.C., Defendants.
CourtColorado Supreme Court

Law Offices of J.E. Losavio, Esq., J.E. Losavio, Stephen L. Cornetta, Pueblo, Fognani Guibord & Homsy, LLP, John D. Fognani, Brian D. Gonzales, Kristina I. Mattson, Denver, for Plaintiffs.

Cooper & Clough, P.C., Larry S. McClung, Deanne C. Potestio, Lisanne N. Leasure, Denver, for Defendants.

Justice KOURLIS delivered the Opinion of the Court.

Victor and Anna Marie Fognani ("the Fognanis"), are plaintiffs in a malpractice action pending in Pueblo County District Court. The Fognanis were represented in that action by John D. Fognani, Esq. ("Mr. Fognani") and Fognani Guibord & Homsy, LLP ("FGH"). The Fognanis endorsed their son, Mr. Fognani, a named partner at FGH, to testify as a fact witness in their suit against Robert S. Young, M.D., and Southern Colorado Clinic, P.C. (collectively "Dr. Young"). Upon Dr. Young's motion, the trial court consequently disqualified Mr. Fognani and FGH from representing the Fognanis in the lawsuit. The court concluded that Mr. Fognani's dual role as counsel and witness would prejudice both parties, confuse the jury, and taint the trial and the legal system in contravention of Colorado Rules of Professional Conduct 3.7 (hereinafter "Colo. RPC 3.7" or "Rule 3.7").

The Fognanis petitioned pursuant to C.A.R. 21 for exercise of our original jurisdiction. We issued rule to show cause and now make the rule absolute in part, discharge it in part and remand. We hold that because the record demonstrates that Mr. Fognani is likely to be a necessary witness in this case, the trial court properly exercised its discretion in disqualifying him from serving as an advocate at trial. Because the advocate-witness rule is directed at the attorney's trial activity, we limit the scope of that disqualification to advocacy at trial. The trial court, however, retains the discretion to determine whether Mr. Fognani's participation in pre-trial litigation activity would become known to the jury and would thus undermine the purpose of the rule.

The record does not permit us to determine whether the trial court appropriately disqualified FGH as well as Mr. Fognani. The trial court appears to have disqualified the firm because of its association with Mr. Fognani. Our Rule, Colo. RPC 3.7, does not mandate automatic disqualification of a disqualified attorney's law firm. Rather, the Rule directs the court to look to two other Rules: 1.7 and 1.9. Since it appears that the court disqualified FGH based solely upon Mr. Fognani's relationship with the firm, we reverse that disqualification order and remand for proper consideration of the appropriate criteria.

We uphold the trial court's disqualification of Mr. Fognani from representation of the plaintiffs at trial. We remand to the trial court to determine the scope of that disqualification in pretrial activities, and to determine whether FGH need also be disqualified from its representation of the plaintiffs at trial.


The underlying lawsuit is the product of alleged complications resulting from hip replacement surgery and postoperative care Dr. Young provided to Victor Fognani in 1997. The Fognanis assert negligence by Dr. Young in his failure to diagnose and properly treat a postoperative life-threatening infection.

The Fognanis filed their lawsuit in March 1999, retaining Daniel Patterson, Esq. ("Patterson") to represent them. Subsequently, Patterson submitted C.R.C.P. Rule 26(a) disclosures endorsing the Fognanis' son, Mr. Fognani, as a fact witness. The document disclosed that Mr. Fognani had information relating to his father's past medical condition, his father's care and treatment by Dr. Young, conversations with Dr. Young regarding his father's conditions as well as other issues in the lawsuit.

Patterson withdrew in April 2002. Over a year later, in 2003, FGH and the Law Offices of J.E. Losavio of Pueblo (the "Losavio Firm") entered appearances as counsel for the Fognanis. Since then, FGH has handled substantially all pretrial matters and intended to serve as the Fognanis' lead counsel. Papers filed with the court listed Mr. Fognani as one of three FGH attorneys representing the Fognanis. The matter was scheduled for trial in September 2004.

In May 2004, FGH delivered a letter to counsel for Dr. Young maintaining that Mr. Fognani was privy to certain inculpatory admissions by Dr. Young:

Dr. Young stated to [Victor] Fognani's son, John Fognani, a long-standing and well-respected member of the Colorado bar, that he was `sorry about your father's situation' and that things might have turned out better had [Dr. Young] been at a major hospital and `more up to date' on current treatment options.

Relying on these statements, FGH increased the Fognanis' settlement demand.

Dr. Young denied making any admissions to Mr. Fognani. On May 10, 2004, he moved to disqualify Mr. Fognani and FGH, on the basis of Mr. Fognani's potential role as a fact witness. Dr. Young cited various provisions of the Colorado Rules of Professional Conduct as requiring the attorney's disqualification and the consequent disqualification of the firm. The motion to disqualify, among other things, asserted that the continued representation of the Fognanis by FGH would prejudice both parties.

On August 11, 2004, the trial court granted Dr. Young's motion to disqualify FGH and Mr. Fognani, holding that the firm could continue to represent the Fognanis only if it withdrew the endorsement of Mr. Fognani as a fact witness. The court remarked, "There is a substantial risk that the jury will be confused by an advocate also appearing as a witness." The court was concerned, in addition, that Mr. Fognani's dual role would taint the trial and the legal system by "putting both parties in the awkward and unseemly position generally anticipated by [Colo. RPC] 3.7." The trial court acknowledged that the disqualification would work a hardship on the Fognanis. It concluded, however, that the Fognanis were aware of the potential for such hardship from the moment Mr. Fognani and FGH decided to enter their appearance in this case, and "could not now avoid the consequences of their decision." The court was persuaded, also, that the continued representation by the Losavio Firm would serve to negate any hardship resulting from the disqualification. It then ordered the Fognanis to respond within ten days concerning their intent to maintain Mr. Fognani as a witness.

FGH continued representing the Fognanis based on their understanding that the court had only disqualified Mr. Fognani. On August 23, 2004, the Fognanis informed the court that they intended to preserve their endorsement of John D. Fognani as a witness and sought clarification of the court's order regarding the disqualification of FGH. On August 24, the court issued an order stating that "the firm is disqualified by virtue of the order of August 11, 2004."

The Fognanis petitioned for review of the trial court's order.


Exercise of our original jurisdiction under C.A.R. 21 is entirely within our discretion. Lazar v. Riggs, 79 P.3d 105, 106 (Colo. 2003). Although we have declared that original proceedings are not devices for circumventing appeals, Varner v. Dist. Court, 618 P.2d 1388, 1390 (Colo. 1980), we have accepted C.A.R. 21 relief as an appropriate remedy for trial court abuse of discretion where an appellate remedy would be inadequate, Lazar, 79 P.3d at 106; People v. Dist. Court, 953 P.2d 184, 186 (Colo. 1998). This court has not previously assumed original jurisdiction over the disqualification of private attorneys and their law firms in a civil matter. We have, however, accepted original jurisdiction under similar circumstances for public law firms, such as district attorneys, attorney generals, and public defender offices, and for disqualification of private counsel and firms in criminal matters. See, e.g., People v. C.V., 64 P.3d 272 (Colo. 2003) (concerning disqualification of district attorney's office and staff).1 In C.V., we determined the exercise of original jurisdiction to be appropriate because the ruling "may have a significant impact on a party's ability to litigate the merits of a controversy." Id. at 275.

Exercise of our original jurisdiction is similarly appropriate in this civil case. Resolving the issue at this point in the proceedings could avoid duplicative and expensive proceedings.

A. Attorney Disqualification

We have repeatedly acknowledged that the disqualification of counsel is a matter largely within the trial court's discretion. See People v. Palomo, 31 P.3d 879, 882 (Colo. 2001); People ex rel. Peters v. Dist. Court, 951 P.2d 926, 931 (Colo. 1998); People v. Garcia, 698 P.2d 801, 806 (Colo. 1985); Williams v. Dist. Court, 700 P.2d 549, 553 (Colo. 1985).

Beyond that initial deference, however, are a number of additional factors. For example, courts have historically been highly cynical of motions to disqualify opposing counsel, noting that such motions are often dilatory or tactical devices. Parke-Hayden, Inc. v. Loews Theatre Mgmt. Corp., 794 F. Supp. 525, 527 (S.D.N.Y. 1992); Greenebaum-Mountain Mortgage Co. v. Pioneer Nat'l Title Ins. Co., 421 F. Supp. 1348, 1352 (D. Colo. 1976); H.H.B.K. 45th St. Corp. v. Stern, 158 A.D.2d 395, 396, 551 N.Y.S.2d 517 (N.Y.App.Div. 1990); Comden v. Superior Court, 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971, 975 (1978). Accordingly, the moving party has the burden to establish grounds for disqualification. See People ex rel. Woodard v. Dist. Court, 704 P.2d 851, 853 (Colo. 1985); Garcia, 698 P.2d at 805. To that end, the opposing counsel cannot be disqualified on the basis of speculation or conjecture, and disqualification can occur only after facts have been alleged that demonstrate a...

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