Waters v. Western Company of North America, 118-70.
| Citation | 436 F.2d 1072 |
| Decision Date | 28 January 1971 |
| Docket Number | No. 118-70.,118-70. |
| Parties | N. Allen WATERS, Administrator of the Estate of Marion Donald Atkins, deceased, Plaintiff-Appellant, v. The WESTERN COMPANY OF NORTH AMERICA, Defendant and Third-Party Plaintiff-Appellee, v. J. E. MAULDIN and J. R. Phillips & Son, Inc., Third-Party Defendants-Appellee, Great American Insurance Company, Plaintiff in Intervention-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Vance Mauney of Botts, Botts & Mauney, Albuquerque, N. M., and John F. Loehr, Farmington, N. M., for N. Allen Waters.
James L. Brown, Farmington, N. M. (John R. Phillips, Jr., Farmington, N. M., was with him on the brief), for J. E. Mauldin.
Mary C. Walters, Albuquerque, N. M., for J. R. Phillips & Son, Inc. and Great American Ins. Co.
Before LEWIS, Chief Judge, and JOHNSEN* and HOLLOWAY, Circuit Judges.
This case reaches us by way of appeal authorized under 28 U.S.C. § 1292(b) after certification by the trial court that an interlocutory order of that court involved a controlling question of law proper for immediate appellate consideration. The subject order was one allowing the filing of a counterclaim by a third party defendant against the plaintiff in litigation involving an automobile accident. In his petition to this court for permission to appeal an interlocutory order, plaintiff-appellant, through counsel whom this court assumed were his sole counsel of record, asserted the legal impropriety of such counterclaim as one reflecting a glaring conflict of interest on the part of counsel for the third party. Basis for this claim was the undisputed fact that counsel for the third party had represented plaintiff for some eight months in the litigation before withdrawing and reappearing as counsel for the counter-claimant. No response to the petition having been filed under Rule 5(b), Fed.R.App.P., we granted the petition. Although subsequent filings in and representations made to this court by brief and argument indicate that our grant of the appeal was improvidently made we consider the total situation to be unfortunate and one requiring some brief comment.
Basically the control of attorneys in trial litigation is within the supervisory powers of the trial judge and the exercise of his discretion in such matters will not be disturbed on appeal except in the most extreme of cases. When, as here, a change of professional employment during the course of litigation gives the appearance of professional impropriety contrary to Canon 9 of the A.B.A. Code of Professional Responsibility through an apparent conflict of interest the...
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