Richardson v. Griffiths
| Decision Date | 28 February 1997 |
| Docket Number | No. S-95-092,S-95-092 |
| Citation | 560 N.W.2d 430,251 Neb. 825 |
| Parties | Ritchie C. RICHARDSON and Terri J. Richardson, husband and wife, Appellees, v. Randy L. GRIFFITHS and Linda C. Griffiths, husband and wife, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Attorneys at Law: Appeal and Error. In an appeal from an order disqualifying counsel, an appellate court reviews the trial court's factual findings for clear error and ultimately makes its disqualification decision independent of the trial court's ruling.
2. Jurisdiction: Final Orders: Appeal and Error. Generally, for an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.
3. Final Orders: Appeal and Error. The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered.
4. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.
5. Final Orders: Appeal and Error. A substantial right is affected if the order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.
6. Mandamus. Mandamus is not a preventive remedy but essentially a coercive writ, one that commands performance of a duty and not desistance therefrom.
7. Attorneys at Law: Appeal and Error. If the appeal from an order of disqualification of counsel involves issues collateral to the basic controversy and if an appeal from a judgment dispositive of the entire case would not be likely to protect the client's interests, interlocutory review is appropriate.
8. Attorney and Client. An attorney-client relationship is created when a person seeks advice or assistance from an attorney, the advice or assistance sought pertains to matters within the attorney's professional competence, and the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.
9. Attorney and Client: Conflict of Interest. An attorney or law firm must avoid the present representation of a cause against a client that the attorney or law firm formerly represented, and which cause involves a subject matter which is the same as or substantially related to that formerly handled by the attorney or law firm.
10. Attorney and Client: Conflict of Interest. Where the same subject matter is involved, the appearance of impropriety is not a factor that may be considered in determining whether or not to disqualify an attorney or firm.
11. Judgments: Appeal and Error. Where the record demonstrates that the decision of the trial court is correct, although such correctness is based on a different ground from that assigned by the trial court, the appellate court will affirm.
Patrick J. Nelson and Daniel L. Lindstrom, of Jacobsen, Orr, Nelson, Wright, Harder & Lindstrom, P.C., Kearney, for appellants.
Larry E. Butler, of Butler, Voigt & Brewster, P.C., Kearney, for appellees.
We are asked to determine whether the law firm of Jacobsen, Orr, Nelson, Wright, Harder & Lindstrom, P.C. (Jacobsen, Orr), should be disqualified from representing the appellants, Randy L. Griffiths and Linda C. Griffiths, in an action brought by the appellees, Ritchie C. Richardson and Terri J. Richardson, because of a prior contact between Terri Richardson and Jeffrey H. Jacobsen, an attorney with Jacobsen, Orr.
We conclude that the prior contact between Terri Richardson and Jacobsen created an attorney-client relationship that involved the same subject matter as that presently handled by Jacobsen, Orr in representing the Griffithses. As a result, we affirm the Buffalo County District Court's decision to disqualify Jacobsen, Orr from representing the Griffithses in this action.
On October 17, 1994, the Richardsons initiated a civil action in the district court to rescind a purchase agreement with the Griffithses, asserting that the Griffithses breached an implied warranty concerning the construction of the Richardsons' home. In their petition, the Richardsons pray for $210,090.05, representing the original purchase price and the costs of additions, improvements, and damages resulting from water leakage into the basement of their home.
On November 30, 1994, the Richardsons filed a motion to disqualify Jacobsen, Orr from representing the Griffithses in this action. The motion alleged that Terri Richardson revealed confidential information to, and received legal advice from, Jacobsen concerning the subject matter of the action.
At the hearing on the motion to disqualify, Terri Richardson testified that sometime around January 19, 1993, she called Jacobsen at his home and discussed problems concerning the construction of the Richardsons' home; that she called Jacobsen upon the recommendation of acquaintances Roxanne Randall and Randy Jensen; that her conversation with Jacobsen lasted approximately 45 minutes; that she contacted Jacobsen as an attorney and considered the conversation to be confidential; that she requested that Jacobsen send her a bill for his time, but Jacobsen declined payment; and that she followed Jacobsen's advice.
Terri Richardson further testified that Jacobsen told her that the builder was responsible for the leakage problems with her house; that Jacobsen briefly explained to her the law of implied warranties; that he advised her that she should maintain a record setting forth the dates and nature of the problems which were occurring; that he stated that he knew Randy Griffiths and that she should continue to try to work with him to correct the problem; and that Jacobsen informed her that if the matter could not be resolved, she should call his office and make an appointment to meet with him.
On cross-examination, Terri Richardson stated that in addition to Jacobsen, she had also contacted two other attorneys prior to contacting and retaining Larry E. Butler as her attorney in the instant matter. Jacobsen testified that he had no independent recollection of the alleged conversation with Terri Richardson. Records of Jacobsen, Orr reveal that no file was ever opened concerning the matter of the alleged conversation, nor was a bill ever sent to the Richardsons. Roxanne Randall testified that she recommended Jacobsen to the Richardsons and that she had an additional conversation with Terri Richardson during which Terri Richardson stated that she had visited with Jacobsen about the problems with her home.
The record reflects that the instant suit was filed approximately 21 months after Terri Richardson's alleged conversation with Jacobsen. Thereafter, the Griffithses retained Patrick J. Nelson of Jacobsen, Orr to represent them in this matter. In its order, the district court granted the Richardsons' motion to disqualify Jacobsen, Orr. The court reasoned:
Although the evidence establishes Mr. Jacobsen has no recollection of any conversation with the plaintiff Terri Richardson, and it is therefore doubtful that any advantage could be gained by the defendants herein, nevertheless the court must find from the totality of the evidence that the conversation testified to by Ms. Richardson did in fact take place....
Although contacted at home and receiving no fee, it appears ... that Mr. Jacobsen was in fact employed by ... Terri Richardson in that she sought legal advice and assistance from Mr. Jacobsen and such advice was offered to her.
It is obvious that Mr. Jacobsen's involvement in this matter was fully peripheral and would not appear to be substantial. However, the Nebraska Supreme Court has formulated what it considers to be a "bright line" rule in similar matters. [Citation omitted.] In formulating that rule the Nebraska Supreme Court was well aware of other rules utilized in other jurisdictions which proposed a balancing test weighing several competing considerations, including the privacy of the attorney/client relationship, the prerogative of a party to choose counsel, and the hardship that disqualification imposes on parties and the entire judicial process. It appears, however, that the Nebraska Supreme Court opted not to follow the balancing rational of other jurisdictions. Our court specifically cited as an additional critical consideration the perception that the public has of the legal profession generally, and the necessity to preserve "not only the actual existence, but also the appearance, of propriety, and to eliminate as nearly as possible unnecessary and unwarranted criticism of the legal profession."
As of the time the Griffithses perfected this appeal, the underlying action had not proceeded to trial.
The Griffithses allege that the district court erred in disqualifying Jacobsen, Orr.
In an appeal from an order disqualifying counsel, an appellate court reviews the trial court's factual findings for clear error and ultimately makes its disqualification decision independent of the trial court's ruling.
The first issue that we must determine is whether this court has jurisdiction to adjudicate the instant appeal. In order for this court to possess jurisdiction, the district court's order disqualifying Jacobsen, Orr must be a final order or appealable under an exception to the final order requirement.
Generally, for an appellate court to acquire jurisdiction of an appeal, there must be...
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