Clinard v. Blackwood
46 S.W.3d 177, 2001 Tenn. LEXIS 443, 2001 WL 530834 (2001)
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Rule of Law:
Even if a law firm implements adequate screening procedures to rebut the presumption of shared confidences for a personally disqualified attorney, the firm must still be vicariously disqualified if the representation creates a serious appearance of impropriety, which stands as an independent basis for disqualification.
Facts:
- Attorney Maclin P. Davis, Jr. previously represented Mr. and Mrs. Blackwood while he was a partner at the Waller firm and later at the Baker firm.
- The Clinards sued Mr. Blackwood over a property line, and Mr. Blackwood retained Davis to represent him.
- Davis and Blackwood discussed filing a third-party claim against American Limestone Company for blasting damage.
- Davis had to withdraw from representing Blackwood because American Limestone was a client of his then-current firm, the Baker firm, in an unrelated matter.
- After Davis's withdrawal, the Waller firm undertook representation of the Clinards and American Limestone in the same lawsuit against the Blackwoods.
- Subsequently, Davis left the Baker firm and rejoined the Waller firm.
- Upon Davis's return, the Waller firm implemented formal 'Conflict of Interest Screening Procedures' to isolate Davis from any involvement in the ongoing litigation against his former clients, the Blackwoods.
Procedural Posture:
- The Blackwoods filed a motion in the trial court to disqualify the Waller firm from representing the Clinards.
- The trial court denied the motion, ruling that the Waller firm was not disqualified.
- The Blackwoods were granted an interlocutory appeal to the Tennessee Court of Appeals.
- The Court of Appeals reversed the trial court's ruling, finding the screening procedures insufficient and ordering the Waller firm disqualified.
- The Clinards and American Limestone, represented by the Waller firm, appealed to the Supreme Court of Tennessee.
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Issue:
Is a law firm vicariously disqualified from a representation, despite implementing adequate screening procedures for a conflicted attorney, if the representation creates a serious appearance of impropriety?
Opinions:
Majority - Holder, J.
Yes. Even when screening procedures successfully rebut the presumption of shared confidences, a law firm must be disqualified if the representation creates a serious appearance of impropriety, which serves as an independent basis for disqualification. The court formally adopts the use of screening procedures as a way to rebut the presumption of shared confidences and avoid automatic vicarious disqualification under DR 5-105(D). In this case, the Waller firm's screening procedures were robust and sufficient to rebut that presumption. However, the analysis does not end there. Under Canon 9, attorneys must also avoid the appearance of impropriety, which is an independent ethical standard. The court holds that when an attorney's firm opposes his former client in the very same litigation in which the attorney previously represented that client, it creates a serious appearance of impropriety that undermines public confidence in the legal system. This situation is akin to a player 'switching teams in the middle of the game after learning the signals,' and no screening procedure can cure such a severe appearance of impropriety in the eyes of a reasonable layperson. Therefore, despite the adequate screen, the Waller firm must be disqualified.
Concurring - Barker, J.
Yes. The majority reaches the correct conclusion to disqualify the firm based on the appearance of impropriety. The situation presented, where an attorney changes firms to stand in an adversary position to a former client in the same litigation, should constitute a per se prohibition under the appearance-of-impropriety standard. Adopting a per se rule for this specific fact pattern would provide clear notice to attorneys and law firms that this conduct is unacceptable and requires disqualification, regardless of the screening measures employed. This approach is necessary to promote public confidence in the legal system.
Concurring-in-part-and-dissenting-in-part - Drowota, III, J.
No. The inquiry should end once it is determined that the firm's screening procedures were adequate to rebut the presumption of shared confidences. While adopting screening is correct, the majority 'takes away with one hand what it gives with the other' by resurrecting the vague and subjective 'appearance of impropriety' standard. This standard 'evades easy definition' and forces lawyers to guess how a 'reasonable layperson' would perceive their actions, undermining the certainty that screening rules are meant to provide. Because the Waller firm's screen was effective and there was no actual impropriety, the firm should not be disqualified based on such an amorphous standard.
Analysis:
This decision establishes a significant dual-track analysis for vicarious disqualification in Tennessee. It formally approves the use of ethical screens, aligning with a modern trend that promotes attorney mobility and prevents automatic disqualification of large firms. However, by retaining the 'appearance of impropriety' as a potent, independent basis for disqualification, the court sets a limit on that mobility. The ruling signals that while procedural safeguards like screens are important, they cannot save a firm from disqualification in fact patterns that are egregious and likely to erode public trust, particularly when a lawyer appears to have 'switched sides' in the same active litigation. Future cases will have to grapple with the tension between the objective effectiveness of a screen and the more subjective public perception of fairness.
