Liebnow v. Bos. Enters. Inc., Supreme Court Case No. 12SA83

• Decision Date: 04 February 2013
• Docket Number: Supreme Court Case No. 12SA83
• Citation: 296 P.3d 108
• Parties: In re Emily LIEBNOW, a minor, BY AND THROUGH her next best friend s and natural parents, Randy LIEBNOW and Suzanne Liebnow, Plaintiff, v. BOSTON ENTERPRISES INCORPORATED, a Colorado Corporation, d/b/a Giacomo's; U.S. Foodservice, a Foreign Corporation; Tanimura & Antle Fresh Foods, Inc., a California Corporation; Tanimura & Antle Farming Company LLC, a Delaware Limited Liability Company; and Tanimura & Antle Land Company, a California Limited Liability Company, Defendants.
• Court: Colorado Supreme Court

296 P.3d 108

In re Emily LIEBNOW, a minor, BY AND THROUGH her next best friend s and natural parents, Randy LIEBNOW and Suzanne Liebnow, Plaintiff,

v.BOSTON ENTERPRISES INCORPORATED, a Colorado Corporation, d/b/a Giacomo's; U.S. Foodservice, a Foreign Corporation; Tanimura & Antle Fresh Foods, Inc., a California Corporation; Tanimura & Antle Farming Company LLC, a Delaware Limited Liability Company; and Tanimura & Antle Land Company, a California Limited Liability Company, Defendants.

Supreme Court Case No. 12SA83

Supreme Court of Colorado.

February 4, 2013

Original Proceeding Pursuant to C.A.R. 21, Pueblo County District Court Case No. 11CV493, Honorable Victor I. Reyes, Judge.

Rule Discharged.

Attorneys for Plaintiff: James E. Freemeyer P.C., Robert K. Reimann, Denver, Colorado.

Attorneys for Defendant Boston Enterprises, Incorporated, d/b/a Giacomo's: Hunter & Associates, Karen R. Wasson, Denver, Colorado.

Attorneys for Amicus Curiae Colorado Bar Association, Mark A. Fogg, President, through Its Ethics Committee:Bennett S. Aisenberg, Denver, Colorado, Wheeler Trigg O'Donnell LLP, Nancy L. Cohen, Denver, Colorado, White & Steele, PC, John Lebsack, Denver, Colorado, Holland & Hart, LLP, Wiley E. Mayne, Denver, Colorado, TW Telecom, Peter R. Nadel, Littleton, Colorado, Pratt & Landry, LLP, Gerald D. Pratt, Lone Tree, Colorado, Fennemore Craig, P.C., Troy Rackham, Denver, Colorado.

Attorneys for Amicus Curiae Colorado Defense Lawyers Association: Ruebel & Quillen, LLC, Jeffrey Clay Ruebel, Westminster, Colorado.

No appearance by or on behalf of Defendants U.S. Foodservice, Inc.; Tanimura & Antle Fresh Foods, Inc; Tanimura & Antle Farming Company LLC; or Tanimura & Antle Land Company.

En Banc.

CHIEF JUSTICE BENDER delivered the Opinion of the Court.

¶ 1 We granted this petition for original jurisdiction under C.A.R. 21 to review the trial court's order denying a law firm's motion for pro hac vice admission to represent the plaintiff where an attorney at that same law firm had previously consulted with defense counsel about the case.

¶ 2 This is a personal injury case against a restaurant resulting from an alleged food-borne illness. The plaintiff sought to have a small out-of-state law firm that specializes in food-borne illness claims admitted pro hac vice to aid in the preparation and presentation of the case. The defendant objected on grounds that defense counsel had previously consulted with an attorney at the out-of-state firm about the case and her trial strategy.

¶ 3 The trial court denied the out-of-state law firm's motion for pro hac vice admission, thus disqualifying the firm from representing the plaintiff. In support of its ruling, the trial court found that the consultation between defense counsel and the out-of-state firm's attorney concerned confidential information that included defense counsel's theory of the case and her trial strategy, which created a conflict under Colo. RPC 1.7(a)(2). The conflict, the trial court concluded, was nonwaivable under Colo. RPC 1.7(b) because allowing the consulted attorney to represent the plaintiff would undermine the fairness of the proceedings. The trial court then imputed the conflict to the out-of-state firm under Colo. RPC 1.10 and denied the motion, thus disqualifying the firm from representing the plaintiff.

¶ 4 On appeal to us, the plaintiff argues that Colo. RPC 1.7 applies only to situations where an attorney-client relationship is established, and that the trial court's disqualification of the out-of-state law firm was an abuse of discretion. Our review of Colo. RPC 1.7(a)(2) reveals that the rule expressly applies not only to attorney-client relationships but also to attorneys' relationships with third persons. Accordingly, we hold that the trial court did not abuse its discretion in finding (1) that the consultation between defense counsel and the out-of-state firm's attorney concerned confidential information that included defense counsel's theory of the case and her trial strategy, which created a conflict under Colo. RPC 1.7(a)(2); and (2) that the conflict is nonwaivable under Colo. RPC 1.7(b) because allowing the consulted attorney to represent the plaintiff would undermine the fairness of the proceedings. We further hold that the trial court did not abuse its discretion by imputing the consulted attorney's conflict to the rest of his law firm under Colo. RPC 1.10 and denying the motion, thus disqualifying the firm from representing the plaintiff. Hence, we discharge the rule and remand the case to the trial court for proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 5 This case involves a child who allegedly became ill from E. coli after eating salad at the defendant restaurant. After the case was filed, defense counsel contacted lawyer Drew Falkenstein at a small law firm in Seattle, Washington that specializes in food-borne illness cases. Defense counsel and Falkenstein had been opposing counsel in a previous Colorado case and had maintained a cordial relationship. Before discussing the case with defense counsel, Falkenstein first determined that his law firm was not already involved in this litigation. Over the next few days, defense counsel and Falkenstein had one telephone conversation and exchanged several e-mails. Defense counsel did not tell Falkenstein that she wanted the information they were exchanging about the case kept confidential.

¶ 6 In their telephone conversation and e-mail exchange, defense counsel and Falkenstein discussed three aspects of the case. First, they talked about defense counsel's planned theory of the case, which at that time was that the child's illness had resulted from visiting a petting zoo rather than from eating salad at the restaurant. Falkenstein advised defense counsel against that theory. Second, defense counsel asked Falkenstein for advice on a trial expert, and Falkenstein recommended an expert. Falkenstein stated that the recommended expert would “work [the] file hard and well” and “may ... help to dig up documents.” Third, Falkenstein recommended adding a lettuce distributor as a nonparty defendant after researching E. coli outbreaks for defense counsel using his law firm's publicly accessible database and finding an E. coli outbreak at another local restaurant chain. Although defense counsel did not take Falkenstein' s advice to add that particular distributor as a nonparty, she did consider other lettuce distributors and lettuce growers as nonparty defendants instead. She abandoned her initial petting zoo strategy as Falkenstein had advised and hired the expert whom Falkenstein had recommended.

¶ 7 Several months after the consultation between defense counsel and Falkenstein, plaintiff's counsel contacted another attorney at Falkenstein's law firm to discuss the case. The record is unclear whether that attorney checked to see if Falkenstein or anyone else at the firm had been involved in the case. Soon after, it was agreed that the out-of-state law firm would join plaintiff's counsel in the case, and this firm filed a motion for admission pro hac vice. The defendant objected to the firm's admission because of defense counsel's earlier consultation and e-mail exchange with Falkenstein, an associate in this firm. In support of the defendant's objection to the motion, defense counsel submitted an affidavit stating that she had disclosed “confidential facts about the case” to Falkenstein. Nothing in the record indicates that defense counsel had consulted Falkenstein for the purpose of disqualifying him or his firm from later representing the plaintiff.

¶ 8 In its ruling the trial court reasoned that when defense counsel sought advice from Falkenstein about the case, she had divulged confidential information that she would not have shared with opposing counsel, including discussing her theory of the case, asking for a recommendation about an expert witness, and requesting research assistance to identify potential nonparty defendants. The trial court concluded that because Falkenstein had “recommended a particular course or theory for [the] [d]efense counsel, researched and provided [d]efense [c]ounsel with the information that now forms the basis for their trial strategy and also provide[d] them with an expert for whose credibility they vouch for in writing,” Falkenstein was placed in a “position of divided loyalties” that would compromise the fairness of the proceedings if he were allowed to represent the plaintiff. As such, the trial court concluded that Falkenstein' s consultation with defense counsel created a nonwaivable conflict of interest that would prohibit him from representing the plaintiff under Colo. RPC 1.7. Imputing the conflict to the out-of-state firm under Colo. RPC 1.10, the trial court denied the firm's motion for pro hac vice admission and disqualified the firm from representing the plaintiff. Plaintiff then petitioned this court under C.A.R. 21 to review the trial court's order. We granted the petition and now discharge the rule.

II. Preliminary Matters

Original Jurisdiction

¶ 9 Before we begin our review of the trial court's order, we first address whether an original proceeding is the proper method to review the trial court order challenged by the plaintiff. This court's choice to exercise its original jurisdiction is “entirely within its discretion.” Vinton v. Virzi, 2012 CO 10, ¶ 9, 269 P.3d 1242. “This court may exercise original jurisdiction under C.A.R. 21 where a trial court proceeds without or in excess of its jurisdiction or to review a seriousabuse of trial court discretion, and where an appeal would not be an adequate remedy.” People v. Ray, 252 P.3d 1042, 1047 (Colo.2011). We have previously exercised original jurisdiction over matters of attorney disqualification in both civil and criminal cases. See, e.g., Fognani v. Young, 115 P.3d 1268, 1271 (Colo.2005) (exercising original jurisdiction in civil disqualification case and...