Lennartson v. ANOKA-HENNEPIN SCH. DIST. 11, C6-01-1278.

• Decision Date: 05 February 2002
• Docket Number: No. C6-01-1278.,C6-01-1278.
• Citation: 638 N.W.2d 494
• Parties: Jackie LENNARTSON, Respondent, v. ANOKA-HENNEPIN INDEPENDENT SCHOOL DISTRICT 11, Appellant.
• Court: Minnesota Court of Appeals

638 N.W.2d 494

Jackie LENNARTSON, Respondent, v. ANOKA-HENNEPIN INDEPENDENT SCHOOL DISTRICT 11, Appellant.

No. C6-01-1278.

Court of Appeals of Minnesota.

February 5, 2002.

Eric D. Satre, Connor, Satre & Schaff, L.L.P., Minneapolis; and Lawrence R. Altman, Minneapolis, for respondent.

Eric J. Magnuson, Patrick J. Sauter, Peter D. Gray, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, for appellant.

Considered and decided by HANSON, Presiding Judge, TOUSSAINT, Judge, and FOLEY, Judge.¹

OPINION

HANSON, Judge.

In the underlying action, respondent sued her former employer for sexual discrimination. After the law firm representing respondent withdrew, the law firm for the former employer hired a lawyer who had been an associate in the law firm that formerly represented respondent, and then established an ethical wall between that lawyer and the lawyers representing the employer. Respondent moved to disqualify the law firm from representing the employer. The district court granted the motion, applying its interpretation of Rule 1.10(b) of the Minnesota Rules of Professional Conduct. Appellant argues the district court used an incorrect test for disqualification and, under the proper test, disqualification is not warranted. We reverse and remand.

FACTS

Respondent Jackie Lennartson brought a sex-discrimination claim against appellant Anoka-Hennepin Independent School District 11 (School District). Lennartson retained Gregg Corwin of the law firm Gregg M. Corwin Associates Law Office, P.C. (Corwin Associates) to represent her, and the School District retained Rider, Bennett, Egan & Arundel, L.L.P. (Rider Bennett).

Corwin Associates employed lawyer Susanne Fischer, an associate, who took one deposition in connection with Lennartson's sex-discrimination claim. In preparation for that deposition, Fischer reviewed Lennartson's file and discussed it with Corwin.

Shortly after Fischer took the deposition, Corwin Associates withdrew from representing Lennartson. Fischer then left Corwin Associates and began working for Rider Bennett. Before joining Rider Bennett, Fischer completed a conflicts and screening report in which she reported her involvement in the Lennartson case. Rider Bennett erected an ethical wall to ensure that Fischer would have no discussion concerning the Lennartson matter with the lawyers representing the School District. Approximately one month after hiring Fischer, Rider Bennett notified Lennartson that it had hired Fischer.

Lennartson wrote to the district court (1) informing it that she had been unable to secure new representation, and (2) arguing that Rider Bennett should be disqualified from representing the School District because it had hired Fischer. The district court construed Lennartson's letter as a motion to disqualify Rider Bennett. After a hearing, the district granted Lennartson's motion, ordered the School District to retain new counsel, and continued the trial for six months to allow new counsel to prepare for trial. This appeal followed.

ISSUE

Did the district court err when it disqualified Rider Bennett as the School District's legal counsel?

ANALYSIS

A reviewing court need not defer to the district court's application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). Also, an appellate court independently reviews the district court's interpretation of the Minnesota Rules of Professional Conduct. Prod. Credit Ass'n v. Buckentin, 410 N.W.2d 820, 823 (Minn.1987) (stating that to ensure uniform application, the reviewing court must retain the final, independent interpretive authority to define the scope and application of those rules).

The School District argues that the district court erred by disqualifying Rider Bennett based solely on its interpretation of Rule 1.10(b) of the Minnesota Rules of Professional Conduct. The School District asserts that the district court instead should have followed the three-part balancing test set forth by the Minnesota Supreme Court in Jenson v. Touche Ross & Co., 335 N.W.2d 720, 731-32 (Minn.1983). Conversely, Lennartson argues that the district court properly relied on the test set forth by Rule 1.10(b), because the Minnesota Supreme Court's adoption of Rule 1.10 impliedly superceded the test for disqualification set forth in Jenson.

We begin with an assessment of the continued viability of the three-part test for disqualification set forth in Jenson, in light of the promulgation of the Rules of Professional Conduct two years later. Next, we analyze the present facts under the Jenson factors. Finally, we examine the present facts under Rule 1.10(b).

I

In 1983, the Minnesota Supreme Court addressed the question of disqualification in a situation in which Lawyer at Firm # 1, who represented Client # 1, later moved to Firm # 2, which represented Client # 2, a party adverse to Client # 1 in the same matter. Jenson, 335 N.W.2d at 730. Client # 1 moved to disqualify Lawyer's associates and partners at Firm # 2 from representing Client # 2. Id. The motion was based on the then effective Code of Professional Responsibility. Id. Client # 1 alleged violations of Canons 4 (protecting client confidences), 5 (independent professional judgment), and 9 (avoiding the appearance of professional impropriety). Id.

The court recognized that the Code of Professional Responsibility addressed the relationship between Lawyer and Client # 1, but did not address the rights of Client # 2 to select its own lawyer, to proceed to trial without undue delay, and to avoid economic hardship. Id. at 731. The court determined that when a motion is made to disqualify Client # 2's chosen lawyer, the court cannot look solely to the canons, but must follow an approach that also considers the rights of Client # 2. Id. at 731-732. The court therefore adopted a three-step approach to disqualification issues:

(a) Considering the facts and the issues involved, is there a substantial, relevant relationship or overlap between the subject matters of the two representations?

(b) If so, then certain presumptions apply: First, it is presumed, irrebuttably, that the attorney received confidences from the former client * * *. Second, it is also presumed, but subject to rebuttal, that these confidences were conveyed to the attorney's affiliates.

(c) Finally, at this stage, if reached, the court weighs the competing equities.

Id. at 731-32 (citations omitted).

Two years after issuing its decision in Jenson, the Minnesota Supreme Court adopted the Minnesota Rules of Professional Conduct to replace the Minnesota Code of Professional Responsibility. Rule 1.10(b) provides as follows:

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) unless there is no reasonably apparent risk that confidential information of the previously represented client will be used with material adverse effect on that client because:

(1) any confidential information communicated to the lawyer is unlikely to be significant in the subsequent matter;

(2) the lawyer is subject to screening measures adequate to prevent disclosure of the confidential information and to prevent involvement by that lawyer in the representation; and

(3) timely and adequate notice of the screening has been provided to all affected clients.

Minn. R. Prof. Conduct 1.10(b).

Lennartson argues that Rule 1.10(b) superceded Jenson and eliminated any weighing of equities. In fact, Lennartson argues, and the district court agreed, that Rule 1.10(b) requires disqualification if any one of the three factors cannot be met. We will discuss below our interpretation of Rule 1.10(b), but will consider first whether the district court erred by not following Jenson, even if we assume that Rule 1.10(b) was violated.

We observe, first, that there is nothing in the Rules that explicitly states an intent to supercede Jenson. Further, the supreme court has continued to cite Jenson with approval even after it adopted the Rules. See, e.g., Buysse v. Baumann-Furrie & Co., 448 N.W.2d 865, 868-69 (Minn.1989)

(stating that Jenson provided a well-defined approach to the question of disqualification); Prod. Credit Ass'n,

410 N.W.2d at 823-25 (citing Jenson when considering whether the subject matters of two representations were substantially related); Humphrey ex rel. State v. McLaren, 402 N.W.2d 535, 543 (Minn.1987) (citing Jenson for a flexible test for disqualification for a `substantial relationship' between a current and prior client representation.).

As an error-correcting court, we are bound to follow the supreme court's precedent. Despite the adoption of the Rules in 1985, the supreme court has given no indication of an intent to overrule Jenson. Moreover, the rationale in Jenson, that the former Code of Professional Responsibility did not address all interests raised in a motion to disqualify a client's chosen counsel, applies equally to the present Rules of Professional Conduct. Thus, until the supreme court indicates otherwise, the balancing test for disqualification set forth in Jenson is controlling.

II

According to the facts presented, the Jenson test does not require Rider Bennett's disqualification.

Substantial, Relevant Relationship

The School District concedes that, because Fischer reviewed Lennartson's file and conducted a deposition on Lennartson's behalf in the same matter, a substantial relevant relationship or overlap between the subject matter of the two representations exists. See Jenson, 335 N.W.2d at 731

.

Communication of Confidences

As to the communication of confidences, the presumption that Fischer received confidences from...