Lassiter Properties, Inc. v. Davidson Mineral Properties, Inc., A97A2012

• Decision Date: 16 January 1998
• Docket Number: No. A97A2012,A97A2012
• Parties: , 98 FCDR 393 LASSITER PROPERTIES, INC. v. DAVIDSON MINERAL PROPERTIES, INC.
• Court: Georgia Court of Appeals

Page 663

495 S.E.2d 663

230 Ga.App. 216, 98 FCDR 393

LASSITER PROPERTIES, INC. v. DAVIDSON MINERAL PROPERTIES, INC.

No. A97A2012.

Court of Appeals of Georgia.

Jan. 16, 1998.

John C. Butters, Atlanta, for appellant.

Phears & Moldovan, H. Wayne Phears, Richard E. Harris, Norcross, Schreeder, Wheeler & Flint, David H. Flint, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Lassiter Properties, Inc. ("Lassiter"), appeals from the trial court's order disqualifying its counsel. Held:

Defendant Davidson Mineral Properties, Inc. ("Davidson Mineral"), filed a "motion for hearing and imposition of sanctions" in the above styled case in order to determine whether there had been improper contact by plaintiff Lassiter, or its counsel with persons known by them to have an adverse interest and to be represented by counsel. As applied to Lassiter's counsel, DR 7-104(A)(1) of the Code of Professional Responsibility provides that "[d]uring the course of his representation of a client a lawyer shall not ... communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."

The trial court found that Lassiter's counsel helped Lassiter prepare a letter sent to defendant which was critical of defendant's attorneys and which sought to convince defendant to settle its dispute with Lassiter pro se. The trial court likewise found that plaintiff's counsel sought to circumvent the ethical prohibition against communicating with a represented opposing client by doing indirectly through his client what he was expressly forbidden to do directly under DR 7-104(A)(1), supra. See generally Clos v. Pugia, 204 Ga.App. 843, 420 S.E.2d 774 (1992). Based on these findings, the trial court disqualified Lassiter's counsel. Lassiter thereafter filed both a notice of appeal and a "protective" application for interlocutory appeal from the disqualification order. Lassiter's interlocutory application no. A97I0317 was denied by this Court by order issued on May 15, 1997. Lassiter's direct appeal was docketed in this Court on May 28, 1997.

The appellee has filed a motion to dismiss Lassiter's direct appeal because it is from a non-final order. The orthodox view regarding the appealability of a disqualification order is stated in Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga.App. 493, 495-496(1), 268 S.E.2d 733 (1980). There it was held that an order disqualifying counsel is interlocutory and a direct appeal from such an order must be dismissed due to appellant's failure to follow the required procedure for bringing an interlocutory appeal. OCGA § 5-6-34(b). This view was expressly adopted by the Supreme Court in Cherry v. Coast House, Ltd., 257 Ga. 403, 404(2), 359 S.E.2d 904 (1987), in which it was held that since a disqualification order is interlocutory, a notice of appeal from such an order does not act as a supersedeas unless the interlocutory appeal procedure has been followed.

Lassiter cites Stevens v. Thomas, 257 Ga. 645, 361 S.E.2d 800 (1987) as authority for the proposition that it is entitled to file a direct appeal from the order disqualifying its counsel for violation of disciplinary rules. In Stevens, a unanimous Supreme Court refused to address an order disqualifying counsel because the order was directly appealable at the time it was entered and the order actually appealed from was entered long after the preceding disqualification order. However, we note that the Supreme Court reached its conclusion without citation of supporting authority and without reference to its earlier opinion in Cherry, which was issued less than two months earlier during the same term of court. Moreover, the disqualified attorney in Stevens filed an appeal in his own name which was consolidated with the related appeal filed by the defendants. The disqualified attorney in the present case has not likewise appealed in his own name. We also note that the disqualification order in Stevens sanctioned both attorney Stevens and the defendants by assessing attorney fees against them in an amount to be determined at a later date. No similar sanction was imposed against Lassiter in the present case. Finally, we find it significant that the disqualification issue in Stevens was not raised by appellants at the first possible opportunity on direct appeal even if the Supreme Court had treated the disqualification order as interlocutory in nature. See Brown v. Thomas, 257 Ga. 68, 354 S.E.2d 830 (1987) (...