Hawkes v. Lewis
| Decision Date | 30 October 1998 |
| Docket Number | S-97-1133,Nos. S-97-1075,s. S-97-1075 |
| Citation | 586 N.W.2d 430,255 Neb. 447 |
| Parties | Nadean J. HAWKES, appellee, v. Kirk C. LEWIS, M.D., appellee, and Jeffrey B. Itkin, M.D., appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Attorneys at Law: Appeal and Error. In an appeal from an order disqualifying counsel, an appellate court reviews the trial court's factual findings for clear error and ultimately makes its disqualification decision independent of the trial court's ruling.
2. Standing: Jurisdiction: Parties: Judgments: Appeal and Error. Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court; determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court.
3. Attorneys at Law: Appeal and Error. If an order of disqualification involves issues collateral to the basic controversy and if an appeal from a judgment would not be likely to protect the client's interests, interlocutory review is appropriate.
4. Standing: Jurisdiction. Standing relates to a court's power, that is, jurisdiction, to address the issues presented and serves to identify those disputes which are appropriately resolved through the judicial process.
5. Standing: Jurisdiction: Parties: Courts. Because the requirement of standing is fundamental to a court's exercising jurisdiction, a litigant or court before which a case is pending can raise the question of standing at any time during the proceeding.
6. Standing. In order to have standing to invoke a tribunal's jurisdiction, one must have some legal or equitable right, title, or interest in the subject of the controversy.
7. Actions: Parties: Standing. The purpose of a standing inquiry is to determine whether one has a legally protectable interest or right in the controversy that would benefit by the relief to be granted.
8. Standing: Jurisdiction. As an aspect of jurisdiction and justiciability, "standing" requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify the exercise of the court's remedial powers on the litigant's behalf.
9. Attorney and Client: Conflict of Interest. An attorney, after receiving the confidence of a client, may not enter the service of others whose interests are adverse to such client's interest in the same subject matter to which the confidence relates, or in matters so closely allied thereto as to be, in effect, a part thereof.
10. Attorney and Client: Conflict of Interest. An attorney or law firm must avoid the present representation of a cause against a client that the attorney or law firm formerly represented, and which cause involves a subject matter which is the same or substantially related to that formerly handled by the attorney or law firm.
11. Attorney and Client: Conflict of Interest. As a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the former client moves for disqualification.
12. Standing: Claims: Parties. In order to have standing, a litigant must assert the litigant's own legal rights and interests, and cannot rest his or her claim on the legal rights or interests of third parties.
Mark A. Christensen and Pamela K. Epp, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellant.
Daniel G. Dolan, Omaha, for appellee Hawkes.
Appellee Nadean J. Hawkes is the plaintiff in a medical malpractice action against two physicians, appellant Jeffrey B. Itkin, M.D., and appellee Kirk C. Lewis, M.D. The case was previously before this court when Hawkes appealed from a jury verdict in favor of Lewis and a directed verdict in favor of Itkin. We reversed the judgment of the district court and remanded the cause for a new trial as to both defendants, finding that the district court erred in granting a directed verdict in favor of Itkin. Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997).
At the original trial, Lewis was represented by the law firm of Walentine, O'Toole, McQuillan & Gordon (hereinafter Walentine, O'Toole). Itkin was represented by Kennedy, Holland, DeLacy & Svoboda (hereinafter Kennedy, Holland). After the directed verdict was granted in favor of Itkin and at the close of Hawkes' case in chief, Lewis moved the trial court to allow Kennedy, Holland to remain in the case as cocounsel for Lewis. The motion was granted. Kennedy, Holland and Walentine, O'Toole jointly represented Lewis during his defense case and closing arguments. On appeal, Lewis was represented by Walentine, O'Toole, while Itkin was represented by Kennedy, Holland. After remand, those firms continued to represent their respective clients. Itkin and Lewis both waived any conflict of interest that might be caused by Kennedy, Holland's representation of Itkin after that firm had represented Lewis.
Nonetheless, Hawkes moved to have Kennedy, Holland disqualified from representing Itkin, based on an alleged conflict of interest with Kennedy, Holland's former client and current codefendant, Lewis. The district court granted the motion, and Itkin timely appealed. This appeal raises the question whether Hawkes had standing to claim a conflict of interest, which did not directly implicate her interests, against an attorney of whom she was not a former client.
Hawkes is the plaintiff in an underlying medical malpractice action against Lewis and Itkin in the district court. The facts of the underlying dispute are more fully set forth in this court's prior consideration of this case, Hawkes v. Lewis, supra. The initial trial in this case was held in March 1995.
In the initial trial, Lewis was represented by J. Joseph McQuillan of Walentine, O'Toole. Itkin was represented by William M. Lamson, Jr., of Kennedy, Holland. When Hawkes rested her case in chief in the initial trial, both Lewis and Itkin moved for directed verdicts, and the motion was sustained with respect to Itkin.
After the directed verdict in favor of Itkin, Lewis moved to allow Lamson to remain in the case as cocounsel for Lewis. Over objection, the trial court granted Lewis' request. Lamson and McQuillan represented Lewis as cocounsel for the remainder of the trial, including Hawkes' case in chief and the closing arguments. On appeal, Lewis continued to be represented by McQuillan and Walentine, O'Toole. Itkin, however, was represented by Lamson and Kennedy, Holland.
In Hawkes v. Lewis, supra, this court found that the directed verdict in favor of Itkin had been in error. This court reversed the judgment of the district court and remanded the cause for a new trial as to both Lewis and Itkin. Id. The district court entered the mandate of this court on June 10, 1997.
On the same date, Hawkes filed a motion to disqualify Lamson and Kennedy, Holland from representing Itkin. Hawkes alleged that Lamson and Kennedy, Holland "should be disqualified from representing Dr. Itkin because they formed a conflicting attorney-client relationship with Dr. Lewis in a cause of action involving the same subject matter as the current litigation." Hawkes alleged that this violated Canon 5, DR 5-105(A) and DR 5-108(A), of the Code of Professional Responsibility.
At the hearing on Hawkes' motion, counsel for Lewis and Itkin presented sworn affidavits in which Lewis and Itkin each professed to waive any conflict of interest present in Lamson and Kennedy, Holland's representation of Itkin. Itkin stated that after the directed verdict in his favor at the first trial, "[t]he possibility of a conflict of interest was explained to me, and, although I did not believe such a conflict to exist, I agreed to waive any such conflict and consented to Mr. Lamson's representation of Dr. Lewis." Lewis also stated that he "was advised of a potential conflict of interest between Dr. Itkin and myself" and that "[a]lthough I did not believe then, and do not believe now, that any such conflict exists, I consented to waive any potential conflict of interest between Dr. Itkin and myself."
Nonetheless, on September 11, 1997, the district court granted Hawkes' motion and disqualified Lamson and Kennedy, Holland from representing Itkin. The court found that the waivers signed by Lewis and Itkin were ineffective because they referred to "potential" and "possible" conflicts of interest, when the district court determined that the conflict was "actual and real," and therefore, the affidavits did not show that the conflict was adequately explained. The court further found that
even if Lewis and Itkin could give satisfactory waivers and consents such as to permit Lamson and Kennedy, Holland to represent Itkin, the series of events whereby Lamson and Kennedy, Holland have switched representation from Itkin to Lewis and back to Itkin creates an appearance of impropriety that justifies their removal.
On September 19, 1997, Itkin filed a motion asking the district court to reconsider its decision. On September 29, the district court overruled this motion. On October 10, Itkin filed a timely notice of appeal from the initial disqualification order, and on October 29, Itkin filed a notice of appeal from the decision overruling the motion to reconsider. The two appeals have been consolidated for consideration by this court.
Itkin assigns that the trial court erred in (1) granting Hawkes' motion to disqualify because Hawkes did not have standing to raise the issue, (2) sustaining Hawkes' motion to disqualify, (3) finding that Itkin and Lewis had adverse interests, (4) finding that the waivers and consents given by Lewis and Itkin did not satisfy the requirements of DR 5-105(C) and DR 5-108(A) or (B), (5) finding that the appearance of impropriety in...
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