Ussury v. St. Joseph Hosp.
| Decision Date | 11 April 1988 |
| Docket Number | No. 54385,54385 |
| Citation | 43 Ohio App.3d 48,539 N.E.2d 700 |
| Parties | USSURY, Appellee, v. ST. JOSEPH HOSPITAL; Northeast Ohio Emergency Affiliates, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
In its discretion, the trial court may disqualify a law firm from representing the defendants when one of its attorneys previously belonged to the law firm that represented the plaintiff, where he reviewed materials and gave advice relating to the plaintiff's case, even though he has no direct responsibility now for representing the defendants.
Dworken & Bernstein Co., L.P.A., Patrick J. Perotti and Melvyn E. Resnick, Painesville, for appellee.
Kitchen, Messner & Deery and Janet Dann, Cleveland, for St. Joseph Hosp.
Jacobson, Maynard, Tuschman & Kalur Co., L.P.A., Michael M. Djordjevic and Paula L. Koenig, Cleveland, for appellant Northeast Ohio Emergency Affiliates.
We overrule the defendants-physicians' single assignment of error and affirm the challenged disqualification order.
Contrary to the plaintiff's argument, the contested order is appealable at this time as an order affecting a substantial right in a special proceeding. See Russell v. Mercy Hospital (1984), 15 Ohio St.3d 37, 15 OBR 136, 472 N.E.2d 695, syllabus. However, the trial court did not abuse its discretion by disqualifying the physicians' present counsel.
A member of the law firm which presently represents the defendants-physicians was previously a member of the law firm that represented the plaintiff in this case. He states that he had no direct communication with the plaintiff. However, the trial court had evidence that he reviewed materials and gave advice relating to the plaintiff's case while at his former firm. He reportedly has no direct responsibility now for representing the defendants-physicians. Nevertheless, he has a professional duty to assist his new firm and their clients.
The trial court could reasonably conclude that the lawyer received protected confidences or secrets while his former firm represented the plaintiff. See DR 4-101(A). He cannot ethically use such confidential information to the disadvantage of the plaintiff, or the advantage of another without the plaintiff's consent. See DR 4-101(C)(2) and (3). His duty to preserve those confidences and secrets continued after he left his former firm. See EC 4-6. The knowledge he acquired while his former firm represented the plaintiff precludes his later representation of the defendants-physicians in the same case. Cf. OSBA Informal Opinion 75-8 (June 30, 1975).
The trial court could also reasonably conclude that he faces a conflict of interest which might unfairly prejudice the plaintiff, his former firm's client. DR 5-105(A) (); EC 5-14 (duty of undiluted loyalty to client); Canon 7 (duty to represent client zealously); Columbus Bar Assn. v. Grelle (1968), 14 Ohio St.2d 208, 210-211, 43 O.O.2d 305, 306, 237 N.E.2d 298, 299; OSBA Informal Opinions 76-8 (July 20, 1976) and 77-13 (Sept. 2, 1977).
Consequently, the court did not abuse its discretion by disqualifying that lawyer from representing the defendants-physicians. Cf. T.C. Theatre Corp. v. Warner Bros. Pictures, Inc. (S.D.N.Y.1953), 113 F.Supp. 265, 268-269; Emle Industries, Inc. v. Patentex, Inc. (C.A. 2, 1973), 478 F.2d 562, 571.
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