Reed v. Hoosier Health Systems, Inc., 49A04-0401-CV-42.
| Decision Date | 13 April 2005 |
| Docket Number | No. 49A04-0401-CV-42.,49A04-0401-CV-42. |
| Citation | 825 N.E.2d 408 |
| Parties | David REED, Appellant-Respondent, v. HOOSIER HEALTH SYSTEMS, INC., Hoosier Living Centers, Inc, Stuart Reed, Michael Reed, and Partners Medical Management, Inc., Appellees-Petitioners. |
| Court | Indiana Appellate Court |
E. Scott Treadway, Kevin M. Quinn, Tabbert Hahn Earnest & Weddle, LLP, Indianapolis, IN, Attorneys for Appellant.
James H. Ham, III, Kathy L. Osborn, Dana M. Lenahan, Baker & Daniels, Indianapolis, IN, Attorneys for Appellees.
David Reed's ("Reed") attorneys were disqualified from representing him in Marion Superior Court. Reed brings this interlocutory appeal, raising the following restated issue for review: Whether the trial court abused its discretion when it disqualified Reed's attorneys. Concluding the trial court was within its discretion, we affirm.
On January 26, 2001, Reed filed a complaint against Hoosier Health Systems, Inc. ("Hoosier Health"), Hoosier Living Centers, Inc. ("Hoosier Living"), Stuart Reed, and Michael Reed ("the Defendants"). Reed's complaint concerned a dispute among Hoosier Health and Hoosier Living's shareholders. David Shelton ("Shelton") and Scott Treadway ("Treadway") represented Reed.
On April 24, 2001, these litigants entered a division agreement and dismissed the complaint without prejudice. On January 4, 2002, Reed refiled his complaint. Shelton and Treadway once again represented Reed but had since relocated their practice to Tabbert Hahn Earnest & Weddle, LLP ("Tabbert Hahn").
The Defendants informed Shelton and Treadway they had a conflict arising from Tabbert Hahn's representation of Hoosier Health and Hoosier Living in pending suits that involve medical malpractice claims and that were assigned by the OHIC Insurance Company ("OHIC"), which indemnifies Hoosier Health and Hoosier Living.
On March 7, 2002, the Defendants filed a motion to disqualify Shelton and Treadway. On May 29, 2002, a hearing was held, in which Reed presented his 154-page response to the Defendants on the morning of the hearing.
At the conclusion of an October 7, 2002 evidentiary hearing, the trial court made the following entry:
Parties appear by counsel; Parties agree to continue HRG. Plaintiff to Submit Evidence on or before October 21, 2002. [The Defendants] to respond on or before Nov. 10, 2002. If either party wants a hearing request to be made on or before Nov. 17, 2002. If no request for hearing by that date Court will decide issue based on submissions of the parties.
Appellees' App. p. 4. Reed did not request an additional evidentiary hearing.
On October 27, 2003, the trial court granted the Defendants' Motion to Disqualify. The trial court certified its order for interlocutory appeal on December 22, 2003, and this court has since acquired jurisdiction.
A trial court may disqualify an attorney for a violation of the Indiana Rules of Professional Conduct ("IRPC"). Gerald v. Turnock Plumbing, Heating, & Cooling, LLC, 768 N.E.2d 498, 501 (Ind.Ct. App.2002) (citing Cincinnati Ins. Co. v. Wills, 717 N.E.2d 151, 154 (Ind.1999)). The trial court's decision to disqualify an attorney is reviewed for an abuse of discretion. Id. (citing Robertson v. Wittenmyer, 736 N.E.2d 804, 806 (Ind.Ct.App. 2000)). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or if it has misinterpreted the law. State v. Willits, 773 N.E.2d 808, 811 (Ind.2002).
IRPC 1.7(a) states in part:
Ind. Prof. Cond. R. 1.7(a) (2004) (emphasis added). IRPC 1.10(a) states in part:
trans. denied ("[T]he duty of loyalty to a client extends to all members of a firm[.]").
IRPC 1.7(a) is violated in the case at bar because (1) Reed's Motion to Reinstate litigation specifically names Hoosier Health and Hoosier Living as defendants, (2) Tabbert Hahn represents Hoosier Health and Hoosier Living in ongoing litigation, and (3) there is no evidence of consent.
Reed contends IRPC 1.7(a) does not necessitate disqualification because Tabbert Hahn's medical malpractice cases are unrelated to the case at bar. Br. of Appellant at 14. However, the relatedness of ongoing cases is not a relevant exception to IRPC 1.7(a). See Ind. Prof. Cond. R. 1.7(a) cmt. ("[A] lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated."); Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 1.7:203 at 233 ().
Reed contends IRPC 1.7(a)'s use of "directly" indicates there must be some relation between the suits before disqualification is proper. Reply Br. of Appellant at 8. However, IRPC 1.7(a)'s use of "directly" refers to the adverse effect to the client not the attorney-client relationship. Ind. Prof. Cond. R. 1.7(a). The attorney-client relationship is addressed in IRPC 1.7(a)(1), which does not contain the term "direct." Id. Hoosier Health and Hoosier Living, as named defendants, are adversely affected.
Reed contends there is no conflict because Tabbert Hahn offered to withdraw its representation of Hoosier Health and Hoosier Living. Br. of Appellant at 14 n. 3. However, conflicts may not be avoided by withdrawal.
Universal City Studios, Inc. v. Reimerdes states:
It is . . . established law that an attorney cannot avoid disqualification . . . merely by `firing' the disfavored client. . . and transforming a continuing relationship to a former relationship by way of client abandonment. Indeed, the offense inherent in taking on the conflicting representation is compounded by seeking to `fire' the client in pursuit of the attorney's interest in taking on a new, more attractive, representation. If. . . the act of suing one's client is a dramatic form of disloyalty, what might be said of trying to drop the first client in an effort to free the attorney to pursue his or her self-interest in taking on a newer and more attractive professional engagement?
98 F.Supp.2d 449, 453 (S.D.N.Y.2000) (internal citations omitted).
Reed cites Commercial Union Insurance Co. v. Marco International Corporation, 75 F.Supp.2d 108 (S.D.N.Y.1999), for the proposition that there is no attorney-client relationship under IRPC 1.7(a) where a party (1) did not engage the attorney, (2) has no pecuniary interest in the action, and (3) has no control over settlement of the case and claims the facts of this case satisfy this standard. Br. of Appellant at 15. However, Commercial Union involved subrogation rather than indemnification. 75 F.Supp.2d at 111. Tabbert Hahn is not pursuing a subrogation claim on behalf of OHIC; it is defending Hoosier Health and Hoosier Living in a disputed claim.
Reed contends subrogation is sufficiently analogous to indemnification because OHIC is really defending the claims and is financially responsible if its defense is unsuccessful. However, even assuming it is impossible for Hoosier Health and Hoosier Living to be held financially responsible for the claims represented by Tabbert Hahn, there are more consequences to losing a suit than simple pecuniary loss.2
Moreover, Reed's position is contrary to our supreme court's ruling in Wills, which stated:
Ultimately all attorneys are bound by their professional obligations to place the interests of their policyholder-client ahead of their own if pressure from an employer or a co-client insurer conflicts with those of the policyholder.
717 N.E.2d at 163 (emphasis added).
In his Reply Brief, Reed urges this court to apply the "substantial relationship" test of Gen-Cor, LLC v. Buckeye Corrugated, Inc., 111 F.Supp.2d 1049 (S.D.Ind.2000). Reply Br. of Appellant at 8-9. Reed does not cite Gen-Cor or assert entitlement to the substantial relationship test in his Appellant's Brief.
Appellate Rule 46(C) states, "no new issues shall be raised in the reply brief." Ind. Appellate Rule 46(C) (2004). Reed's decision to raise this issue in his Reply Brief — much like his decision to present a 154-page response to an opponent on the morning of a hearing — shields his argument from the scrutiny of his opponent and undermines the adversarial process. Accordingly, Reed has waived this issue for appellate review.
Waiver notwithstanding, we reject Reed's argument. Gen-Cor concluded the conflicted law firm violated IRPC 1.7(a) but disqualification was not an appropriate "remedy" under the substantial relationship test. 111 F.Supp.2d at 1053.
The substantial relationship test states:
First, the trial judge must make a factual reconstruction of the prior legal representation. Second, it must be determined whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing clients in those matters. Third, it must be determined whether that information is relevant to the issues raised in the litigation pending against a former client.
Gen-Cor, 111 F.Supp.2d at 1054 (emphasis added).
The substantial relationship test is inapplicable to the case at...
To continue reading
Request your trial
-
Town of Cedar Lake v. Alessia
...order that the law firm may not continue to represent the Park Board in any matters. See, e.g., Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, 411 (Ind.Ct.App.2005) (holding that the trial [985 N.E.2d 66]court did not err when it disqualified plaintiff's attorneys under Rule 1.7(a)).Con......
-
Howard v. State
... ... Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, ... ...
- Superior Mortgage Funding, LLC v. Zoleko
- Xyz v. Sykes