Tungate v. MacLean-Stevens Studios, Inc.

• Decision Date: 22 May 1997
• Docket Number: LEAN-STEVENS
• Citation: 695 A.2d 564
• Court: Maine Supreme Court
• Parties: Zagonyi TUNGATE v. MacSTUDIOS, INC.

Page 564

695 A.2d 564

1997 ME 113

Zagonyi TUNGATE v. MacLEAN-STEVENS STUDIOS, INC.

Supreme Judicial Court of Maine.

Submitted on Briefs April 18, 1997.

Decided May 22, 1997.

Jon Holder, Holder & Grover, P.A., Portland, for plaintiff.

John H. Rich, III, Perkins, Thompson, Hinckley & Keddy, Portland, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

ROBERTS, Justice.

¶1 MacLean-Stevens Studios, Inc., appeals from the interlocutory order entered in the Superior Court (Cumberland County, Bradford, J.) denying its motion to disqualify Zagonyi Tungate's attorney, Jon Holder. Because we conclude that the challenged order does not fall within any exception to our prudential final judgment rule, we dismiss the appeal.

¶2 MacLean-Stevens Studios, Inc., is a photography business supplying student photographs to schools in Maine and several other states. In April 1995 Holder filed a class action suit against MacLean-Stevens alleging violations of, among other things, the Maine Unfair Trade Practices Act, 5 M.R.S.A. § 205-A-214 (1989 & Supp.1996). Zagonyi Tungate is named as the class representative. The suit arises from MacLean-Stevens's practice of charging different prices for student photograph packages depending on whether the school accepts a commission from MacLean-Stevens. The class action was brought sometime after Kathleen M. Grover, Jon Holder's wife and law partner, purchased a photograph package from MacLean-Stevens for the couple's child attending the middle school in Falmouth. The price Grover paid apparently included a commission for the middle school, a fact allegedly not disclosed to purchasers.

¶3 In July 1996 MacLean-Stevens filed a motion to disqualify Holders counsel for the class on the grounds that he and his wife are likely witnesses in the case and that they, as members of the class, have a conflict of interest. See M. Bar R. 3.4(g)(1)(i), 3.5(b)(1) & 3.4(f)(1). ¹ In response to the motion Holder and Grover waived any potential membership in the class and any award to which they could be entitled, and Tungate gave her consent that Holder continue as counsel. After a hearing the court refused to disqualify Holder, and MacLean-Stevens appeals.

¶4 MacLean-Stevens erroneously asserts that we have "expressly declared that denial of a motion to disqualify counsel is entitled to interlocutory appellate review." In fact, the only interlocutory appeals in attorney disqualification cases that we have reviewed on their merits involved orders disqualifying counsel. In Adam v. Macdonald Page & Co., 644 A.2d 461 (Me. 1994), the trial court disqualified the defendant's counsel because of the presumed receipt of confidential information while previously representing the plaintiff. We vacated the order and remanded for an evidentiary hearing on whether in fact defense counsel had obtained confidential information that could prejudice the plaintiff. Id. at 464-65. In Casco Northern Bank v. JBI Associates, Ltd., 667 A.2d 856 (Me.1995), we affirmed an interlocutory order disqualifying counsel for JBI Associates on the motion of two codefendants on the ground that counsel had previously represented them on matters substantially related to the pending litigation.

¶5 We did not address the final judgment rule in any detail in either Adam or Casco Northern. In Casco Northern we quoted Adam in a footnote. 667 A.2d at 859 n. 3. In Adam we stated in a footnote that Adam did not dispute that the order was immediately appealable. 644 A.2d at 462 n. 5(citing Cook v. Cook, 574 A.2d 1353, 1354 (Me.1990), that dealt with the death knell exception in a different context). Moreover, these cases are readily distinguishable from the case at bar. The disqualification of an attorney will involve a...