Walker v. STATE, DOTD

• Decision Date: 14 May 2002
• Docket Number: No. 2001-CC-2079., No. 2001-CC-2078
• Citation: 817 So.2d 57
• Parties: Roger WALKER, et al., v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Willie Mae Mixon, et al., v. State of Louisiana, Department of Transportation and Development.
• Court: Louisiana Supreme Court

817 So.2d 57

Roger WALKER, et al., v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

Willie Mae Mixon, et al., v. State of Louisiana, Department of Transportation and Development.

Nos. 2001-CC-2078, 2001-CC-2079.

Supreme Court of Louisiana.

May 14, 2002.

Dane S. Ciolino, Danial C. Vidrine, Baton Rouge, Counsel for Applicant in No. 2001-CC-2078 and Respondent in No. 2001-CC-2079.

Douglas M. Chapoton, Richard P. Ieyoub, Attorney General, Stacey A. Moak, Baton Rouge, Counsel for Respondent in No. 2001-CC-2078.

Richard P. Ieyoub, Attorney General, Henry D. Salassi, Jr., Heather M. Valliant, Chaffe, McCall, Phillips, Toler & Sarpy, Baton Rouge, Counsel for Applicant in No. 2001-CC-2079.

CALOGERO, Chief Justice.

We granted certiorari to determine whether an attorney who was formerly employed by the State of Louisiana handling claims in the "Road Hazard" Section of the Attorney General's Office should be disqualified from two cases wherein he now represents plaintiffs who have filed suit against the State alleging damages as a result of defective State roadways. Upon review of the record we find that the State failed to meet its burden of proving that the attorney should be disqualified from participating in those law suits.

FACTS

In 1986, Danial Vidrine began working for the State of Louisiana in the Attorney General's Office. In 1989, Vidrine was assigned to work in the "Road Hazard Section" where he handled State Department of Transportation and Development (DOTD) matters. In June 1999, Vidrine resigned and entered private law practice. Approximately one month after his resignation, on July 12, 1999, Vidrine mailed a letter to various Louisiana attorneys advising them that he defended road hazard claims for DOTD for ten years and is "very informed in the inner operations of the Department of Transportation and Development as well as the location of valuable written documents which are essential in proving a case against the DOTD."

On August 6, 1999, approximately five weeks after his resignation from the attorney general's office, Vidrine filed a personal injury suit against DOTD on behalf of Willie Mae Mixon. On October 7, 1999, Vidrine enrolled as co-counsel for Robert Walker, in a suit against the DOTD which had been filed in January of 1998 while Vidrine was employed by the State. On June 26, 2000, the State filed a motion in the Walker litigation seeking disqualification of Vidrine as plaintiff's counsel. On October 9, 2000, the State field a similar motion in the Mixon case, alleging that Vidrine's representation of the plaintiffs violated the Louisiana Rules of Professional Conduct.

In the Walker matter, the trial judge granted DOTD's motion to disqualify Vidrine without assigning written reasons. Vidrine sought supervisory review and the First Circuit Court of Appeal denied Vidrine's writ application.

In the Mixon case the trial judge granted the DOTD's motion to recuse "on the basis that [the accident] occurred during the time that [Vidrine] was employed by the DOTD." Vidrine sought writs. The First Circuit, with an identical panel of Judges which had denied Vidrine's writ in the Walker case, granted his application in the Mixon matter and reversed the judgment of the trial court. The court found there was no basis on the record to disqualify Vidrine from representing Willie Mae Mixon.

Vidrine filed an application in this court in the Walker matter and DOTD filed an application in the Mixon case. The applications were granted and the cases were consolidated for purposes of briefing, oral argument and consideration by this court. The parties seek a determination as to whether the law requires Vidrine's disqualification from the Walker and Mixon cases.

LAW AND ANALYSIS

The customary remedy for an alleged conflict of interest is disqualification of the attorney or firm with the conflict. Corbello v. Iowa Production Co., XXXX-XXXX (La.App. 3 Cir. 6/6/01), 787 So.2d 596. In determining whether a conflict exists, courts often look to the Rules of Professional Conduct. See In re: Merlin A. Abadie Inter Vivos Trust, 2000-2029 (La. App. 4 Cir. 7/11/01), 791 So.2d 181; Farrington v. The Law Firm of Sessions, Fishman, 95-0841 (La.App. 4 Cir. 5/8/96), 674 So.2d 448. Furthermore, this court has determined that the ethical rules which regulate attorneys' law practices have been recognized as having the force and effect of substantive law. See Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982)

; Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979); Husk v. Blancand, 155 La. 816, 99 So. 610 (1924).

Before discussing the applicable conflict rules, we begin with a discussion of the burden of proof of the respective parties in these two lawsuits. We note that the burden of proving disqualification of an attorney or other officer of the court rests on the party making the challenge. See Brasseaux v. Girouard, 214 So.2d 401 (La. App. 3d Cir.),

writ refused, 253 La. 60, 216 So.2d 307 (1968); Schweiker v. McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982).

Here, the State seeks to have Vidrine disqualified in the Walker and Mixon matters and hence, the burden of proving that Vidrine has a conflict of interest rests with the State. The State has argued that Vidrine should be disqualified under Rules 1.9¹ and 1.11² of the Louisiana Rules of Professional Conduct. More specifically, the records in the Walker and Mixon cases reveal that the State makes two arguments which can be summarized as follows:

1) Vidrine should be disqualified as counsel in the Walker and Mixon cases under La. R. Prof. Cond. 1.9(a) because those cases are "substantially related" to matters Vidrine handled while working for the DOTD.

2) Vidrine should be disqualified as counsel in the Walker and Mixon cases under La. R. Prof. Cond. 1.9(b) and 1.11 because Vidrine possesses confidential information that can be used against the DOTD.

We find that the State has not met its burden of proving that Vidrine violated either La. R. Prof. Cond. Rule 1.9 or 1.11. Louisiana Rules of Professional Conduct Rule 1.9(a)

La. R. Prof. Cond. 1.9(a) prevents Vidrine from representing "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 after consultation." In this instance, the Mixon case was filed after Vidrine left the DOTD. While the Walker case was filed when Vidrine was employed by the State, he testified that he "had no idea that [the Walker] case ever existed while [he] was an Assistant Attorney General." There is no proof in the record to the contrary. Thus, there is no evidence to support a conclusion that Vidrine should be disqualified for representing another person in the "same matter."

It is not the State's contention that Vidrine worked on the Walker or Mixon matters while employed by the State, but that those cases are "substantially related" to matters that Vidrine worked on while employed by the DOTD. The State contends that the Mixon and Walker cases are substantially related to the work Vidrine did at the DOTD because those cases both involve defective roadways, the type of suits that Vidrine defended as counsel for the DOTD.

We disagree with the DOTD's broad construction of "substantially related." The term "substantially related" is not defined in Rule 1.9, yet some federal district and appellate courts have attempted to define the phrase. In Koch v. Koch Industries, 798 F.Supp. 1525, 1536 (D.Kan. 1992), a federal district court defined the term "substantially related" to mean that the cases "involve the same client and the matters or transactions in question are relatively interconnected or reveal the client's pattern of conduct." In Rogers v. Pittston Co., 800 F.Supp. 350 (W.D.Va. 1992), the court defined the term to mean "identical or essentially the same." Also, in Trust Corp. v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983) "substantially related" required that "the factual contexts of the two representations [be] similar or related."

While these definitions vary in language they are all consistent in the view that "substantially related" is to be given a narrow interpretation. In our view, two matters are "substantially related" when they are so interrelated both in fact and substance that a reasonable person would not be able to disassociate the two.

Here the State has not proven that the Walker and Mixon cases are so interrelated in fact and substance to any case Vidrine worked on while at the DOTD that a reasonable person could not disassociate them. The State's only assertion is that Vidrine is now working on the same type of cases that he handled while working in the Road Hazard Division. However, representing a party against a former client on the same type of case, without more, is insufficient to disqualify the attorney under Rule 1.9(a). To hold otherwise would be to severely restrict the ability of an attorney to gain employment in his field of expertise, especially in this instance where Vidrine's former employer is the State of Louisiana.

Vidrine has experience handling lawsuits involving allegedly defective highways. If "substantially related" referred only to the type of litigation then Vidrine would be forever barred from representing an individual against the DOTD in a road hazard case. In our view, Rule 1.9(a) cannot be so broadly interpreted or applied. Because the State failed to prove that the Walker and Mixon cases are "substantially related" to any of the matters Vidrine worked on while employed in the Road Hazard Division, Rule 1.9(a) does not disqualify him from handling either of these two cases. We now turn to La. R. Prof. Cond. Rules 1.9(b) and 1.11.

Louisiana Rules of Professional Conduct Rules 1.9(b) and 1.11

The State's argument here is that La. R. Prof. Cond. Rules 1.9(b) and 1.11 prevent an...