Robbins v. Gillock, 23523

• Decision Date: 03 November 1993
• Docket Number: No. 23523,23523
• Citation: 862 P.2d 1195,109 Nev. 1015
• Court: Nevada Supreme Court
• Parties: Larry ROBBINS, D.O., Appellant, v. Gerald I. GILLOCK, Esq., Barker, Gillock, Koning, Brown & Earley, A Professional Corporation, Respondents.

Page 1195

862 P.2d 1195

109 Nev. 1015

Larry ROBBINS, D.O., Appellant, v. Gerald I. GILLOCK, Esq., Barker, Gillock, Koning, Brown &

Earley, A Professional Corporation, Respondents.

No. 23523.

Supreme Court of Nevada.

Nov. 3, 1993.

Mandelbaum & Curtis, Las Vegas, for appellant.

Barker, Gillock, Koning, Brown & Earley, Las Vegas, for respondents.

OPINION

PER CURIAM:

This is an appeal from an order of the district court dismissing appellant's complaint for injunctive and declaratory relief.

On September 10, 1991, respondent attorney Gerald Gillock filed a medical malpractice action against appellant Dr. Larry Robbins on behalf of the estate of Kathleen Flores, a former patient of Dr. Robbins. ¹ Two months later, Dr. Robbins filed a complaint for injunctive and declaratory relief against Gillock and his law firm. Dr. Robbins sought to enjoin Gillock from representing Flores because Gillock had previously defended Dr. Robbins in a case filed by Ila Toller Martinez in 1979 which was dismissed in 1984. Dr. Robbins alleged that Gillock's representation of Flores was a conflict of interest. ²

Dr. Robbins' complaint was accompanied by an affidavit from Dr. Robbins in which he stated that he had several conversations and one meeting with Gillock and that Gillock defended Dr. Robbins at his deposition in the Martinez case. Dr. Robbins also recalled signing interrogatories. Dr. Robbins, however, could not remember the specifics of any conversations. Dr. Robbins further filed an exhibit documenting that Gillock's file from the Martinez case contained thirty-one pleadings, eighty pieces of correspondence, four depositions and an indication that Gillock and his firm documented ninety-nine hours of work on the case. The district court concluded that Dr. Robbins had not demonstrated an impermissible conflict of interest. We agree and affirm.

In 1986, this court adopted the Nevada Rules of Professional Conduct. See SCR 150. SCR 159, the Nevada Rule of Professional Conduct governing the representation of a former client, provides in pertinent part:

A lawyer who has formerly represented a client in a matter shall not thereafter:

1. Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents, preferably in writing, after consultation.... ³

The burden of proving whether two matters are the same or substantially related falls on the party moving for disqualification and that party must have evidence to buttress the claim that a conflict exists. Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F.Supp. 1200, 1204 (E.D.Pa.1992); Satellite Fin. Planning v. 1st Nat. Bk. Wilmington, 652 F.Supp. 1281, 1283 (D.Del.1987). In proving that a prior representation is substantially related to present litigation, however, the moving party is not required to divulge the confidences actually communicated, nor should a court inquire into whether an attorney actually acquired confidential information in the prior representation which is related to the current representation. Commonwealth Ins. Co., 808 F.Supp. at 1204; Satellite Fin. Planning, 652 F.Supp. at 1283. The court should instead undertake a realistic appraisal of whether confidences might have been disclosed in the prior matter that will be harmful to the client in the later matter. Commonwealth Ins. Co., 808 F.Supp. at 1204; Satellite Fin. Planning, 652 F.Supp. at 1283. Further, the district courts have broad discretion in determining whether disqualification is required in a particular case, and that determination will not be disturbed by this court absent a showing of abuse. See Cronin v. District Court, 105 Nev. 635, 781 P.2d 1150 (1989).

We conclude that the district court did not abuse its discretion because app...