Taylor v. Grogan

• Decision Date: 30 June 1995
• Docket Number: No. 94SC143,94SC143
• Citation: 900 P.2d 60
• Parties: Lorelei A. TAYLOR, d/b/a Rocky Mountain Plateau, Petitioner, v. Ronald GROGAN and The State of Colorado, Respondents.
• Court: Colorado Supreme Court

Page 60

900 P.2d 60

Lorelei A. TAYLOR, d/b/a Rocky Mountain Plateau, Petitioner, v. Ronald GROGAN and The State of Colorado, Respondents.

No. 94SC143.

Supreme Court of Colorado,

En Banc.

June 30, 1995.

Rehearing Denied Aug. 28, 1995.

Quigley & Bruce, James M. Bruce, Bruce A. Logan, Denver, for petitioner.

John Randolph Torbet, Colorado Springs, for respondents.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review Grogan v. Taylor, 877 P.2d 1374 (Colo.App.1993). ¹ We reverse the court of appeals. The respondent, Ronald Grogan (plaintiff), ² was injured by an explosion in his motor home on November 7, 1986. The plaintiff filed a complaint against the petitioner, Lorelei Taylor (defendant) alleging that she or her agent had negligently overfilled his propane tank. At the bifurcated trial, in which the statute of limitations issue was tried first, the defendant was permitted to call both of the plaintiff's attorneys as defense witnesses. The trial court applied a two-year statute of limitations to the jury's finding on when the plaintiff's claims accrued, and concluded that the claims were time-barred. The court of appeals reversed, and ordered a new trial because the trial was fundamentally unfair to the plaintiff. A new trial would require the defendant to again defend against the plaintiff's claims even though the defendant was not responsible for any error. Accordingly, we reverse and remand this case to the court of appeals with directions to reinstate the judgment entered by the trial court in favor of the defendant.

I

On November 7, 1986, the plaintiff suffered severe burns as a result of a propane fire in his motor home. In late January 1987, the plaintiff retained counsel who filed a complaint against the manufacturers of the motor home and motor home chassis on October 28, 1988, in federal district court. The plaintiff dismissed his claims against the chassis manufacturer and amended his federal complaint on August 3, 1990, to add a claim against the defendant based on alleged negligent overfilling of the propane tank. In February 1991, the federal suit was dismissed because there was not diversity of citizenship.

On March 6, 1991, plaintiff's counsel filed a complaint against the defendant in state court. The defendant answered that the plaintiff's claims were barred by the statute of limitations. During discovery, the defendant sought to depose both of the plaintiff's attorneys on the statute of limitations issue. The defendant attempted to determine whether counsel acted with reasonable diligence on behalf of the plaintiff between the date of the accident and the date the claims were filed against the defendant. Both of the plaintiff's attorneys were deposed and named as defense witnesses for trial after their motions for protective orders regarding their depositions were denied.

The trial was bifurcated and the statute of limitations issue was tried first. At the jury trial the defendant was permitted to call plaintiff's counsel as defense witnesses. Plaintiff's attorneys remained as counsel throughout the trial. ³

The jury found that the plaintiff's claims accrued on January 21, 1987, the approximate date when the plaintiff retained counsel. The trial court applied a two-year statute of limitations to the jury's finding, concluded the plaintiff's claims were time-barred, dismissed the plaintiff's complaint, and entered judgment in favor of the defendant.

The court of appeals agreed with the trial court that the plaintiff's attorneys could testify as defense witnesses at trial. Grogan v. Taylor, 877 P.2d 1374, 1380 (Colo.App.1993). However, because the trial court failed to disqualify plaintiff's counsel after they did not withdraw, the court of appeals concluded the trial was fundamentally unfair to the plaintiff and remanded for a new trial. Id. at 1380-82.

II

The court of appeals properly determined that DR 5-102(B) of the Code of Professional Responsibility governed the procedure for plaintiff's counsel when they anticipated they would be called as witnesses for the defense. ⁴ DR 5-102(B) provides:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

In Williams v. District Court, 700 P.2d 549, 553 (Colo.1985), we examined the ethical considerations that "necessarily arise when an attorney of record is subpoenaed by opposing counsel in order to testify against the subpoenaed attorney's client in a pending trial." We concluded that an attorney may subpoena opposing counsel to testify adversely to his client only after showing:

(1) that [opposing counsel's] testimony will be actually adverse to [his or her client]; (2) that the evidence sought to be elicited from the lawyer will likely be admissible at trial under the controlling rules of evidence; and (3) that there is a compelling need for such evidence, which need cannot be satisfied by some other source.

Williams, 700 P.2d at 555-56 (footnotes omitted). ⁵

The trial court found that all of the elements of the Williams test were satisfied. The court of appeals determined there was adequate support in the record for the trial court's findings and concluded the trial court did not err in denying the plaintiff's motion to quash the subpoenas served on his counsel or in allowing counsel to be called as defense witnesses at trial. Grogan, 877 P.2d at 1380.

A

The court of appeals stated the Williams analysis did not end its inquiry because the act of subpoenaing plaintiff's counsel constituted a motion to disqualify. ⁶ Because plaintiff's counsel did not withdraw as required under DR 5-102(B), the court of appeals determined that the trial court's failure to disqualify them was fundamentally unfair and required a new trial. Grogan, 877 P.2d at 1382. We disagree.

In a March 30, 1992, minute order, the trial court stated that "for purposes of trial, defendant may call [plaintiff's counsel] as witnesses for the limited purpose of the affirmative defense of the statute of limitations." In clarifying its March 30 minute order at a pretrial conference on March 31, 1992, the court stated that both of the plaintiff's attorneys could be called by the defense to testify on the statute of limitations issue.

The Preliminary statement to the Code of Professional Responsibility provides:

The Code is designed both as an inspirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required minimum standard stated in the Disciplinary Rules.

....

The Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct.

As the Preliminary Statement to the Code reflects, the Code is designed to provide ethical guidance to attorneys and places the responsibility for compliance on attorneys. DR 5-102(B) makes no provision for trial court disqualification of attorneys and does not require a new trial for noncompliance. The Code mandates that an attorney withdraw on his own initiative if he violates DR 5-102(B).

In determining when disqualification for violation of a disciplinary rule is appropriate,

the mere violation of a disciplinary rule does not automatically result in disqualification. The critical question is whether the litigation can be conducted in fairness to all parties. Disqualification should not be imposed unless the claimed misconduct in some way "taints" the trial or legal system.

Federal Deposit Ins. Co. v. Isham, 782 F.Supp. 524, 528 (D.Colo.1992) (citations omitted). The defendant did not file a motion to disqualify plaintiff's counsel and counsel did not seek to disqualify themselves at trial. The trial court specifically ruled plaintiff's counsel could testify. The defendant would be unfairly burdened if she were required to defend against the plaintiff's claims in a new trial. Plaintiff's counsel were responsible for the position in which they placed themselves and cannot now avoid the consequences of their actions. See Caldwell v. Kats, 193 Colo. 384, 385, 567 P.2d 371, 372 (1977). The plaintiff was bound by the actions and decisions of his counsel. See Mountain States Tel. & Tel. Co. v. Department of Labor & Employment, 184 Colo. 334, 338, 520 P.2d 586, 589 (1974); Magliocco v. Olson, 762 P.2d 681, 685 (Colo.App.1987); see also People in Interest of P.N., 663 P.2d 253, 256 (Colo.1983). The court of appeals erred in granting the plaintiff a new trial.

B

Because it ordered a new trial, the court of appeals examined what would occur if the plaintiff's attorneys represented the plaintiff at a new trial and were called as witnesses by the defense. The court of appeals analyzed Colorado Rule of Professional Conduct 3.7, even though the Rules did not become effective in Colorado until after the trial. In concluding that Rule 3.7 requires trial courts to follow certain procedures in future cases in which attorneys are called as adverse witnesses by opposing counsel, the court of appeals stated:

[T]he trial court must treat the act of subpoenaing counsel as "the functional equivalent of a motion to disqualify." Williams v. District Court, [700 P.2d 549, 555 (Colo.1985) ]. Thus, if an attorney remains as counsel after having been named as an adverse witness to his or her client, the trial court must conduct a hearing and make appropriate findings as to whether disqualification is required or whether any exception to the disciplinary rules would allow this to occur. That procedure must be followed even when the subpoenaed attorney-adverse witnesses have not moved to withdraw as counsel and the opposing party has not moved...