Roberts v. Hutchins

• Court: Alabama Supreme Court
• Writing for the Court: HOUSTON; HORNSBY
• Citation: Roberts v. Hutchins, 572 So.2d 1231 (Ala. 1990)
• Decision Date: 07 December 1990
• Parties: Curtis ROBERTS and Roger D. Eiland v. Sharon HUTCHINS, as Administratrix of the Estate of Freeman Hutchins, Jr., Deceased. 89-1073.

Page 1231

572 So.2d 1231

6 A.L.R.5th 1085

Curtis ROBERTS and Roger D. Eiland v. Sharon HUTCHINS, as Administratrix of the Estate of Freeman Hutchins, Jr., Deceased.

89-1073.

Supreme Court of Alabama.

Dec. 7, 1990.

Michael A. Florie and A. Sybil Vogtle of Starnes & Atchison, Birmingham, for appellants.

Tom Dutton of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellee.

HOUSTON, Justice.

The defendants, Curtis Roberts, M.D., and Roger D. Eiland, M.D., appeal from the trial court's order denying their motion to disqualify the law firm of Pittman, Hooks, Marsh, Dutton, & Hollis, P.C. ("Pitman, Hooks"), from representing the plaintiff, Sharon Hutchins, as administratrix of the estate of Freeman Hutchins, Jr., in her wrongful death medical malpractice suit against the defendants. ¹ We reverse and remand.

Pittman, Hooks presently represents the plaintiff. The law firm of Starnes & Atchison represents the defendants. Ralph Bohannon, a lawyer and a certified registered nurse anesthetist, while an associate at Starnes & Atchison, had full access to the defendants' file, and he was engaged in an array of activities in connection with this suit, ranging from legal research; the review of depositions; the examination of potential witnesses, including medical experts; and the planning of trial strategy. Bohannon billed the defendants for more than 30 hours of work in the preparation of the defense to the plaintiff's suit. Bohannon then resigned from Starnes & Atchison and became an associate at Pittman, Hooks. Approximately nine months later, the defendants moved to have Pittman, Hooks disqualified from representing the plaintiff. ² The trial court entered an order disqualifying Bohannon, the propriety of which is not at issue; however, based on affidavits submitted by the lawyers in Pittman, Hooks, it found that Bohannon had not divulged any of the confidential information he had obtained during his employment with Starnes & Atchison and that Pittman, Hooks had taken sufficient steps to screen Bohannon from any participation in the plaintiff's suit. In denying the defendants' motion, the trial court ordered Pittman, Hooks to continue its policy of isolating Bohannon from the case.

Relying primarily on Ex parte America's First Credit Union, 519 So.2d 1325 (Ala.1988) and Ex parte Taylor Coal Co., Inc., 401 So.2d 1 (Ala.1981), the defendants contend that Pittman, Hooks should have been disqualified because of Mr. Bohannon's previous involvement as counsel for the defendants. We agree.

Disciplinary Rule 5-101(C), Code of Professional Responsibility of the Alabama State Bar ("the Code"), prohibits a lawyer from representing "a party to a cause or his successor after having previously represented an adverse party or interest in connection therewith." Definition (7) of the Code states: "Unless the context otherwise requires, wherever in these Rules the conduct of a lawyer is prohibited, all lawyers associated with him are also prohibited." Under Canon 9 of the Code, a lawyer is required to conduct himself so as to avoid even the appearance of professional impropriety. Ethical Consideration 9-1 states:

"Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession."

In Ex parte America's First Credit Union, supra, this Court adopted the "common sense" approach to questions concerning the vicarious disqualification of lawyers that had previously been adopted by the Court of Criminal Appeals in Terry v. State, 424 So.2d 710 (Ala.Crim.App.1982). Under the "common sense" approach, the Code is not so strictly interpreted as to always require the disqualification of an entire law firm when one of the lawyers in that firm is disqualified. However, noting that the office of the general counsel and the Disciplinary Commission of the Alabama State Bar had also adopted the "common sense" approach, see 45 Ala.Law. 306 (1984), this Court in Ex parte America's First Credit Union, supra, stated as follows:

"In an unpublished opinion of the Alabama State Bar Disciplinary Commission, 81-557, a similar situation was addressed. A lawyer at a large firm concentrating in defense work was moving to a firm concentrating in plaintiff's work. He questioned under what circumstances he and the new firm would be disqualified. The Disciplinary Commission said:

" 'Neither you nor any member or associate of the [new] firm ... may continue to represent any party in a matter in which you participated or were familiar with while an associate of the [old] firm.... The members and associates of the [new] firm ... may continue representation in pending cases in which you did not participate and as to which you acquired no knowledge while an associate of [the old firm], but you personally may not take part in any matters wherein the two firms heretofore represented opposing interests.

" 'We do not feel that your leaving the [old] firm ... and becoming an associate of the [new] firm would necessarily require the latter firm to withdraw from all cases wherein [the old firm] represents adverse parties. To uncompromisingly apply the rule would require us to base a presumption upon a presumption. In other words, we would have to presume that you acquired all of the knowledge possessed by every member and associate of the [old] firm (a fact which we know to be untrue). Then we would have to assume that this knowledge (which you do not possess) would be irrebuttably imputed to every member and associate of the [new] firm (a fact which we know to be untrue).

" 'In order to avoid even the appearance of impropriety we do not feel that you personally should take part in the handling of any cases for ... [the new firm] where the [old] firm represented an adverse party while you were an associate of the firm.

" 'True, the test applied by a court in determining whether or not to grant a motion to require an attorney to withdraw from a case may not be the same test that would be applied by [the] Disciplinary Commission in determining whether or not disciplinary sanctions should be imposed, nevertheless, we feel that the above-cited authorities are...