Liapis v. Second Judicial Dist. Court of State
| Decision Date | 09 August 2012 |
| Docket Number | No. 58649.,58649. |
| Citation | 282 P.3d 733,128 Nev. Adv. Op. 39 |
| Parties | Theodore L. LIAPIS, Petitioner, v. The Second Judicial DISTRICT COURT OF the State of Nevada, in and for the County of Washoe; and the Honorable Egan K. Walker, District Judge, Respondents, and Marie Josephine Liapis, Real Party in Interest. |
| Court | Nevada Supreme Court |
OPINION TEXT STARTS HERE
Mark T. Liapis, Reno, for Petitioner.
Jonathan H. King, Reno, for Real Party in Interest.
Before CHERRY, C.J., PICKERING and HARDESTY, JJ.
This original petition for a writ of mandamus raises two novel issues regarding attorney disqualification: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney's representation will constitute an appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? Because appearance of impropriety is no longer recognized by the American Bar Association, and we have not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer, we reject that conclusion when the alleged impropriety is based solely on a familial relationship with the attorney. We also conclude that absent an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney, the nonclient parent lacks standing to seek disqualification under RPC 1.7.
Real party in interest Marie Liapis filed a complaint for divorce against petitioner Theodore Liapis, in which she also sought disposition of the couple's property, permanent spousal support, and her attorney fees and costs. Theodore answered Marie's complaint in proper person but later retained Mark Liapis, the couple's son, as his attorney.
A settlement conference was scheduled, and each party filed a statement in preparation for that conference. In her statement, Marie objected to Mark's representation of Theodore. Because of the issues raised concerning Mark's representation of Theodore, the district court vacated the scheduled settlement conference and gave Mark time to determine whether he would continue as Theodore's counsel.
Mark informed Marie's counsel that he did not intend to withdraw as counsel for Theodore. Marie subsequently filed a motion to disqualify Mark, asserting three bases for his disqualification. First, she argued that Mark's representation of Theodore and his pecuniary interest in their estate created an appearance of impropriety. Second, she argued that even though Mark had never represented her, there was an “inherent conflict of interest” because it was unclear “how [Mark] would be able to zealously represent [Theodore]” when he “professe[d] to still love both his parents.” Finally, she contended that Mark should be disqualified because he was a potential witness in the case.
In response, Theodore argued that Marie's “boilerplate generalities” were insufficient to mandate Mark's disqualification, and that Mark had no pecuniary interest in the couple's estate. Further, Theodore argued that there was no concurrent conflict of interest under RPC 1.7 because Mark had never represented Marie and, even if Theodore could raise a conflict, he waived it through a written informed consent. Finally, he argued that Mark could not be disqualified as a potential witness because the case was still in the pretrial phase, and under DiMartino v. District Court, 119 Nev. 119, 121–22, 66 P.3d 945, 946–47 (2003), potential witnesses can serve as pretrial counsel.
While the district court acknowledged Marie's argument regarding the appearance of impropriety, it reached no conclusion about whether Mark's representation created such an appearance. The district court then referred to RPC 1.7, which governs concurrent conflicts of interest, and found “that Mark['s] representation of his father will [not] provide competent and diligent representation unaffected by the fact that his mother is the adverse party.” Finally, the district court cited RPC 3.7, which governs attorneys as witnesses, and concluded that the 1 The district court ordered that Mark be disqualified as counsel, and Theodore filed this writ petition. 2
In resolving this writ petition, we must determine whether representation by a child of one of the opposing parents in a divorce action creates a disqualifying appearance of impropriety, whether a nonclient has standing to assert the concurrent-conflict-of-interest rule in RPC 1.7, and whether an attorney can be disqualified during the pretrial phase based on his status as a potential witness.
Standard for writ relief
“A writ of mandamus is available to compel performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion.” Millen v. Dist. Ct., 122 Nev. 1245, 1250, 148 P.3d 694, 698 (2006); seeNRS 34.160. The extraordinary remedy of mandamus may issue only where no plain, speedy, and adequate legal remedy exists, id. at 1250–51, 148 P.3d at 698;NRS 34.170, and the consideration of a petition for such relief is solely within our discretion. Millen, 122 Nev. at 1251, 148 P.3d at 698. We have previously indicated that a petition for mandamus relief generally is an appropriate means to challenge district court orders regarding attorney disqualification. Id.; see also Nevada Yellow Cab Corp. v. Dist. Ct., 123 Nev. 44, 49, 152 P.3d 737, 740 (2007). Thus, we exercise our discretion to consider this writ petition.
Mark's representation of Theodore does not create a disqualifying appearance of impropriety
Although the district court did not base its disqualification order on Mark's representation of Theodore creating an appearance of impropriety, Marie opposes writ relief on the ground that “Canon 9 of the [Model] Code of Professional Responsibility adopted by the American Bar Association provides that a lawyer should avoid even the appearance of professional impropriety,” and the “son of opposing litigants in the same litigation cannot avoid the appearance of impropriety,” particularly because Mark “has a potential pecuniary interest as a future heir.”
While “Canon 9 required attorneys to ‘avoid even the appearance of impropriety [,]’ [t]he ABA Model Code has since been replaced by the ABA Rules of Professional Conduct, which expressly eliminated the ‘appearance of impropriety’ standard.” In re7677 East Berry Ave. Associates, L.P., 419 B.R. 833, 845 (Bankr.D.Colo.2009); see also MJK Family v. Corp. Eagle Management Services, 676 F.Supp.2d 584, 593 (E.D.Mich.2009) ); In re Wheatfield Business Park LLC, 286 B.R. 412, 421 (Bankr.C.D.Cal.2002) (). This is significant because Nevada adopted the Model Rules of Professional Conduct with only slight variations in 1986 as SCR 150–203.5, since renumbered to track the ABA Model Rules numbering scheme. In the Matter of Amendments to the Supreme Court Rules of Professional Conduct, SCR 150–203.5, ADKT 370 ().
In fact, Nevada has expressly declined to adopt Canon 9 of the Model Code. Brown v. Dist. Ct., 116 Nev. 1200, 1204 n. 4, 14 P.3d 1266, 1269 n. 4 (2000). Rather, this court has recognized that an appearance of impropriety may form a basis for attorney disqualification only in the limited circumstance of a public lawyer, and only if the appearance of impropriety is so extreme as to undermine public trust and confidence in the judicial system. See id. (); Collier v. Legakes, 98 Nev. 307, 310, 646 P.2d 1219, 1221 (1982) (). Thus, generally, “[a]s distinguished from judicial recusals, which may be required on the basis of a mere appearance of impropriety, such an appearance of impropriety by itself does not support a lawyer's disqualification.” DCH Health Services Corp. v. Waite, 95 Cal.App.4th 829, 115 Cal.Rptr.2d 847, 850 (2002) (internal citation and quotation omitted).
Marie lacks standing to seek Mark's disqualification pursuant to RPC 1.7
RPC 1.7(a) prohibits a lawyer from representing a client “if the representation involves a concurrent conflict of interest.” Such a conflict exists if “[t]here is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” RPC 1.7(a)(2). However, even if a conflict arises, the rule also provides that “a lawyer may represent a client if ... [t]he lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; ... [t]he representation is not prohibited by law; ... [and e]ach affected client gives informed consent, confirmed in writing.” RPC 1.7(b)(1), (2), (4).
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