In re Matter of Estate of Myers, Case No. 05SA231 (CO 4/3/2006)
| Decision Date | 03 April 2006 |
| Docket Number | Case No. 05SA231. |
| Parties | In re: IN THE MATTER OF THE ESTATE OF THORVALD G. MYERS DONALD MYERS and OLSEN & TRAEGER, LLP, Petitioners v. MARION PORTER, Respondent. |
| Court | Supreme Court of Colorado |
Opinion modified, and as modified, Petition for Rehearing DENIED. EN BANC.
No. 05SA231, In the Matter of the Estate of Thorvald G. Myers — Attorney Disqualification — Protective Order — Misconduct by Counsel
Donald Myers and the law firm of Olsen & Traeger, LLP, which represented Myers in consolidated will contest proceedings concerning the estate of Thorvald G. Myers, petitioned pursuant to C.A.R. 21 for relief from an order of the probate court disqualifying the firm from further representation and entering a protective order in favor of Marian Porter, the opposing party. The probate court imposed those sanctions and ordered attorney fees in response to Porter's motion alleging that the firm had surreptitiously obtained her consumer credit report in violation of federal and state law.
The Supreme Court found that the order was not supported with sufficient specificity in the record to demonstrate why disqualification was required to maintain the fairness or integrity of the proceedings. Accordingly, the rule was made absolute and the case was remanded for reconsideration of the probate court's order.
Olsen & Traeger, LLP, M. Kent Olsen, Douglas J. Traeger, Andrea N. Mahoney, Denver, Colorado, Attorneys for Petitioner Donald Myers.
McConnell Siderius Fleischner Houghtaling & Craigmile, LLC, Cecelia A. Fleischner, Troy Rackham, Denver, Colorado, Attorneys for Petitioner Olsen & Traeger, LLP.
Holland & Hart, LLP, Stephen G. Masciocchi, Sheldon H. Smith, Kelly Dickson Cooper, Denver, Colorado, Attorneys for Respondent Marion Porter.
Donald Myers and the law firm of Olsen & Traeger, LLP, which represents Myers in probate proceedings concerning the estate of Thorvald G. Myers, petitioned pursuant to C.A.R. 21 for relief from an order of the probate court disqualifying the firm from further representation and entering a protective order in favor of Marian Porter. The probate court imposed sanctions and ordered attorney fees in response to Porter's motion alleging that the firm had surreptitiously obtained her consumer credit report in violation of federal and state law. Because the orders of the probate court are not supported with sufficient specificity in the record, the rule is made absolute.
The disputed orders of the probate court arise from combined proceedings involving the estate of Thorvald G. Myers, who died on October 9, 2004. Marion Porter filed a petition for the formal probate of a will executed by the decedent in 2001. Donald Myers, the decedent's nephew, objected and, in addition, filed a complaint to set aside a 2001 amendment to the decedent's revocable trust, which purported to replace him as successor trustee, with Porter. Myers has alleged that the decedent was unduly influenced by Porter and lacked testamentary capacity when he executed the 2001 will and amendment to his revocable trust, as well as a power of attorney designating Porter. Myers separately filed a petition for the formal probate of a will executed by the decedent in 1994, naming him as personal representative, to which Porter objected.
The probate court ordered consolidation of the will contest proceedings and the trust action in March 2005. In May, Porter moved for dismissal of Myers' actions or for protective orders, alleging that a paralegal acting on behalf of the law firm representing Myers, Olsen & Traeger LLP, had unlawfully obtained a copy of Porter's credit report. In her reply to Myers' response in opposition, Porter also suggested disqualification as an appropriate sanction. In connection with these pleadings, the parties submitted written correspondence, an affidavit executed by the paralegal, Traeger's answers to interrogatories, and part of a transcript of a deposition of Donald Myers.
It appears to have been uncontested that a paralegal, paid by Olsen & Traeger for work on Myers' case, obtained a copy of Porter's credit report through a ruse, with the assistance of a mortgage broker whose wife worked in an office-sharing arrangement with Olsen & Traeger; and that the paralegal had first consulted lawyers and staff in the office about the usefulness of such a report. Traeger conceded that upon learning of the report's existence, he sealed and retained it, awaiting direction from the court, but denied allegations that the actions of the paralegal reflected the firm's normal practice; that the paralegal was directed to obtain the report by either Olsen or Traeger; or that the report had been viewed by Donald Myers or any lawyer in the firm. Traeger refused to admit or deny the allegation that the paralegal discussed the contents of the report with Myers, asserting attorney-client privilege.
Without taking testimony or resolving factual disputes about the knowledge of the attorneys or extent of the involvement of the law firm, the probate court disqualified the entire firm from further representation of Myers. It simultaneously entered an order "in the nature of a protective order," limiting all future discovery as to Marion Porter "to her actions with respect to the decedent's capacity in the years 2000-2001 and her actions with respect to the preparation of the 2001 testamentary documents;" and it awarded Porter $5,000 in fees and costs from Olsen & Traeger. In support of its disqualification order, the court noted only that: "(1) there ha[d] been abuse of the litigation process, (2) it [was] not possible to separate the law firm of Olsen & Traeger from the abuse and to rectify the wrong, and (3) untainted counsel [could] and should proceed with the representation of Donald Myers." In support of its protective order, the court offered, in addition, that "it [was] undisputed that the tainted discovery was shared directly with Petitioner Donald Myers."
Although we have never attempted to define its precise contours, we have often noted that courts have the inherent power to ensure both the reality and appearance of integrity and fairness in proceedings before them; and to that end, they necessarily retain the discretion to disqualify attorneys from further representation. People v. Frisco, 119 P.3d 1093, 1096 (Colo. 2005); People v. C.V., 64 P.3d 272, 275-76 (Colo. 2003); People v. Palomo, 31 P.3d 879, 882 (Colo. 2001); People v. Garcia, 698 P.2d 801, 806 (Colo. 1985). At the same time, however, we have emphasized the countervailing importance, in both the criminal and civil contexts, of continued representation of parties by counsel of their choice. Fognani v. Young, 115 P.3d 1268 (Colo. 2005); People v. Harlan, 54 P.3d 871, 878 (Colo. 2002); People ex rel. Woodard v. Dist. Ct., 704 P.2d 851, 853 (Colo. 1985); cf. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 441 (1985) (Brennan, J., concurring) ().
More particularly, we have made clear that disqualification is a severe remedy that should be avoided whenever possible. Harlan, 54 P.3d at 877. To the extent that a court's discretion to disqualify attorneys derives from its inherent power to ensure the integrity of the process and fairness to the parties, id.; Garcia, 698 P.2d at 806, it is therefore obliged to impose less severe sanctions whenever they would be adequate for that purpose. See Harlan, 54 P.3d at 877; Palomo, 31 P.3d at 885. Although courts may at times act preemptively to guard against mistrial or reversal on appeal, see Frisco, 119 P.3d at 1095, disqualification of an attorney may not be based on mere speculation or conjecture, but only upon the showing of a clear danger that prejudice to a client or adversary would result from continued representation. Woodard, 704 P.2d at 853; accord Fognani, 115 P.3d at 1272 ().
Violation of an ethical rule, in itself, is neither a necessary nor a sufficient condition for disqualification. See Taylor v. Grogan, 900 P.2d 60, 63 (Colo. 1995) (); Woodard, 704 P.2d at 853 (); see also Harlan, 54 P.3d at 877; Palomo, 31 P.3d at 882-83. A number of attorney ethical proscriptions, especially those barring representation of conflicting interests, see, e.g., Colo. RPC 1.7 — 1.11, or acting in conflicting roles, see, e.g., Colo. RPC 3.7 (Lawyer as Witness), have developed precisely to ensure fairness and loyalty to the parties and protect the integrity of the process, and therefore serve as important guides in the exercise of discretion to disqualify. See People ex rel. Peters v. Dist. Ct., 951 P.2d 926, 929-30 (Colo. 1998). It is, however, the exclusive authority of this court to supervise and regulate the practice of law in this jurisdiction. In re Cardwell, 50 P.3d 897, 904 (Colo. 2002). A trial court's inherent power to disqualify counsel may be exercised only when necessary to avoid unfairness to a party or protect the integrity of the proceedings, and not to discipline or punish. See Garcia, 698 P.2d at 806; see also Schuff v. A.T. Klemens & Son, 16 P.3d 1002, 1012 (Mont. 2000) (...
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