Keith v. Keith
| Decision Date | 15 May 2014 |
| Docket Number | No. 48,919-CW,48,919-CW |
| Parties | RONALD D. KEITH Plaintiff-Applicant v. MARJORIE M. KEITH, ET AL. Defendants-Respondents |
| Court | Court of Appeal of Louisiana — District of US |
Judgment rendered May 15, 2014. Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P.
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
COOK, YANCEY, KING & GALLOWAY
By: Kenneth Mascagni
Robert Kennedy, Jr.
Counsel for Plaintiff-
Applicant
AYRES, WARREN, SHELTON &
WILLIAMS, L.L.C.
By: Lee H. Ayres
Curtis R. Shelton
RICHIE, RICHIE & OBERLE LLP
By: Charles Vernon Richie
Margaret Elizabeth Richie
Counsel for Defendants-
Respondents Marjorie M.
Keith and Donald E. Keith
Before MOORE, LOLLEY and GARRETT, JJ.
This writ granted to docket involves a motion to disqualify counsel and a ruling below which required that all evidence be adduced in open court, including evidence which may be protected by attorney-client privilege. Under the very unusual and unique circumstances presented here, we find that the trial court erred in its ruling and in refusing to utilize alternative methods of conducting the hearing to protect matters that may be covered by the attorney-client privilege. Accordingly, we make the writ peremptory, reverse the trial court ruling, and remand with instructions.
The plaintiff, Ronald Keith, has filed two suits in the 26th Judicial District Court against his mother, Marjorie Matlock Keith, pertaining to her position as trustee of two family trusts. In the first suit, filed on December 5, 2011, the plaintiff sought to remove her as trustee and have himself named as sole trustee. In the second suit, filed on August 1, 2012, he sought damages for alleged violation of fiduciary duties. He also named his twin brother, Donald, as a defendant in both suits as a trust beneficiary.
Several days before the filing of the first suit, a meeting took place between the plaintiff's attorney, Kenneth Mascagni, and another attorney, Lee H. Ayres, at Ayres' law office. This meeting on December 2, 2011, became the focus of the motion to disqualify filed by the plaintiff after Ayres was hired by the defendants, Mrs. Keith and Donald, in June 2013 to represent them in the suits brought by the plaintiff. Ayres and the attorney then representing the defendants had filed a motion for the latter to withdraw and for the former to enroll as counsel of record.
The parties seem to agree that at the meeting Mascagni sought information from Ayres about interdiction, a field in which Ayres was experienced and esteemed.1 However, they fail to agree on anything else and completely disagree about the legal implications to be drawn from their meeting. Ayres asserts that he generally acquainted Mascagni - his friend, former neighbor, and former law partner - with the basic tenets of interdiction proceedings, as a favor. He did not bill for the appointment. Mascagni, on the other hand, contends that Ayres was engaged to provide legal services on behalf of the plaintiff and that he expected Ayres to bill for the appointment.
In the motion to disqualify filed on July 16, 2013, the plaintiff alleged that, through his attorney, he had consulted with and shared "confidential information" with Ayres at the December 2011 meeting. He maintained that, as a result of this meeting, a conflict of interest existed which prohibited Ayres from representing Mrs. Keith in the instant proceedings. (Mrs. Keith had already had three different attorneys.) The plaintiff stated that he neither consented to nor waived the conflict of interest and that Ayres' representation of Mrs. Keith violated Rule 1.9(a) and/or 1.18(b) and (c) of the Louisiana Rules of Professional Conduct. In the motion, the plaintiff alleged that some of the evidence would need to be submitted in camera. A motion to stay proceedings pending resolution of the motion to disqualify was granted on July 22, 2013.
On August 14, 2013, the defendants filed an opposition to the motion to disqualify. Among the attachments to the memorandum were copies of Ayres' handwritten notes from the December 2011 meeting.2
On August 26, 2013, the motion was called in open court following a pretrial conference. Counsel for the plaintiff proposed a modified in camera method whereby the courtroom would be closed; the only non-court personnel allowed to be present would be mover and his counsel. Then mover and mover's counsel would be excused and the same procedure would be utilized for the defendants. The trial court expressed discomfort with this proposed method, which plaintiff's counsel asserted has been used in federal court. The defendants objected to the proposed procedure. The trial court ordered briefing on the issue and reset the matter for hearing on September 27, 2013.
In a memorandum entitled "Procedure for Consideration of Motion to Disqualify," the plaintiff stated that the hearing should be limited to an inquiry into matters which are not subject to any privilege.3 The plaintiff expressed his intention to provide proof of the sequence of events giving rise to the meeting between Mascagni and Ayres and then rely upon a presumption that confidential information was shared. In the event the presumption was not accepted by the trial court, he proposed to file under seal an affidavit by Mascagni. The defendants filed their own memorandumon proper procedure in which they urged that the trial court not depart from regular proceedings in open court. They argued that they had the right to hear and cross-examine any witnesses offered by the plaintiff and that their due process rights would be violated by any other procedure.
The parties returned to court on September 27, 2013.4 The plaintiff immediately moved to file under seal an affidavit from Mascagni detailing the communications he had with Ayres.5 The plaintiff also objected to introduction of any evidence that delved into attorney-client privileged communications. The trial court denied the motion and then ruled that it would conduct an ordinary, open hearing. However, it directed that any written offerings be placed under seal and that any request for a transcript of the proceedings be approved by the court. The court refused to review Mascagni's affidavit and allowed it to be filed only under seal as a proffer, subject to review by the court of appeal. The plaintiff objected to the trial court's proposed procedures. The defendants vehemently objected to the Mascagni affidavit being placed under seal without them having an opportunity to see it and reserved their right to submit a similar in camera affidavit at a later date. The objections were noted and overruled. Against this contentious pretrial bickering, the evidentiary portion of the hearing began.
Plaintiff's counsel elicited testimony from the plaintiff that he was aware that Mascagni was going to meet with another attorney to discuss his possible lawsuit against his mother, that Mascagni was authorized to discuss the matter fully with the second lawyer, and that the plaintiff was willing then and now to pay for services rendered by the second lawyer. When counsel for the defendants attempted to cross-examine the plaintiff, he was instructed by his own counsel not to answer the first question asked of him, as it allegedly implicated the attorney-client privilege. As the hearing became more and more contentious and mired in the possibility of the plaintiff and his attorney being held in contempt, the plaintiff requested a stay in order to take writs to this court. The trial court candidly acknowledged on the record that the plaintiff was being placed in a difficult position and requested "guidance" from the appellate court.
We note that, at that juncture, the trial court did not have the benefit of all of the extensive legal research that has now been provided to this court by the parties in both the writ application and in the voluminous briefs filed after the matter was docketed. The trial court was faced with a motion rarely seen by state court judges, coupled with an unusual factual background. Instead of being provided with concrete examples of how different courts have dealt with similar issues well in advance of the hearing, the trial court was basically told that federal courts employed different procedures. Had the trial court and the parties been provided with all of the research that has been provided to this court, along with the additional jurisprudence that we have found from our own research, webelieve the hearing below would have been conducted in a different manner and this matter would have been resolved by now. Unfortunately, none of this occurred and this matter is before us.
On October 1, 2013, the trial court signed an order staying the hearing on the motion to disqualify pending this court's ruling on the application for supervisory writs. On November 14, 2013, this court granted the writ to docket.
The plaintiff characterizes the issues before this court as being a dispute over the applicable burden of proof for disqualifying a lawyer under Rule 1.9(a) of the Louisiana Rules of Professional Conduct and the appropriate manner in which the trial court should receive evidence concerning matters protected by the attorney-client privilege, should the court deem such evidence necessary.
The plaintiff contends that the trial court should utilize a two-step evidentiary process. First, it should receive all nonprivileged evidence in open court. The client might be able to carry his burden of proof without revealing privileged information. Second, if nonprivileged evidence is insufficient, the trial court should receive privileged information in camera. Otherwise, the plaintiff would be required either to disclose privileged information to disqualify his former attorney or forgo the disqualification motion altogether.
The defendants, of course, argue...
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