Liebnow ex rel. Liebnow v. Boston Enterprises Inc.
2013 WL 453912, 296 P.3d 108, 2013 CO 8 (2013)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A trial court does not abuse its discretion by disqualifying a law firm for a nonwaivable conflict of interest when one of its attorneys previously consulted with opposing counsel and received confidential information regarding trial strategy, as this undermines the fairness and integrity of the proceedings under Colo. RPC 1.7 and 1.10.
Facts:
- A child allegedly became ill from E. coli after eating salad at a restaurant.
- Defense counsel contacted lawyer Drew Falkenstein, an attorney at a small Seattle-based law firm specializing in food-borne illness cases, to consult about the case.
- Defense counsel and Falkenstein discussed defense counsel's planned theory of the case (the child's illness resulted from visiting a petting zoo) and Falkenstein advised against it.
- Defense counsel asked Falkenstein for advice on a trial expert, and Falkenstein recommended a specific expert, stating the expert would 'work the file hard and well'.
- Falkenstein researched E. coli outbreaks using his firm's publicly accessible database and recommended adding a lettuce distributor as a nonparty defendant.
- Defense counsel subsequently abandoned her initial petting zoo strategy, hired the expert whom Falkenstein had recommended, and considered other lettuce distributors and growers as nonparty defendants.
- Several months after the consultation, plaintiff's counsel contacted another attorney at Falkenstein's law firm to discuss the case, and it was agreed the firm would join plaintiff's counsel.
Procedural Posture:
- The plaintiff filed a personal injury case against the defendant restaurant.
- The out-of-state law firm, after being contacted by plaintiff's counsel, filed a motion for admission pro hac vice to join the case.
- The defendant objected to the firm's admission, citing a prior consultation between defense counsel and an attorney at the out-of-state firm.
- The trial court denied the out-of-state law firm's motion for pro hac vice admission, finding a nonwaivable conflict of interest under Colo. RPC 1.7(a)(2) due to confidential information exchange, which it then imputed to the entire firm under Colo. RPC 1.10.
- Plaintiff petitioned the Colorado Supreme Court under C.A.R. 21 to review the trial court's order.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a trial court abuse its discretion by denying a law firm's pro hac vice admission and disqualifying it when one of its attorneys previously consulted with opposing counsel, divulging confidential trial strategy, creating a nonwaivable conflict of interest that would undermine the fairness of the proceedings?
Opinions:
Majority - Chief Justice Bender
No, the trial court did not abuse its discretion in denying the law firm's pro hac vice admission and disqualifying it. Colorado Rule of Professional Conduct (Colo. RPC) 1.7(a)(2) explicitly extends beyond attorney-client relationships to cover responsibilities to 'third persons,' which includes other lawyers. When defense counsel sought advice from attorney Falkenstein, she divulged confidential information including her theory of the case and trial strategy, as well as an expert recommendation. This information constituted 'mental impressions and thought processes of counsel' and was not merely technical or discoverable. The trial court reasonably found that Falkenstein's involvement created a situation of divided loyalties, as he would be prevented from using the gained insight to the plaintiff's advantage due to his confidentiality responsibility to defense counsel. This conflict was nonwaivable under Colo. RPC 1.7(b) because allowing the firm to represent the plaintiff would undermine the fairness and integrity of the judicial proceedings. The trial court's decision to impute the conflict to Falkenstein's entire small, specialized law firm under Colo. RPC 1.10(a) was also within its rational discretion, as lawyers in a firm are presumed to share access to confidential information, and there was no indication of a tactical motive by defense counsel to disqualify the firm.
Dissenting - Justice Eid
Yes, the trial court abused its discretion in disqualifying the law firm, and the majority wrongly affirms this decision. The majority fails to give sufficient weight to the fundamental importance of a party's choice of counsel and does not require a showing of significant prejudice before imposing the severe remedy of disqualification. To disqualify counsel, there must be a 'clear danger that prejudice to a client or adversary would result from continued representation' that 'seriously threatens' the integrity and fairness of proceedings, and 'any remedy short of disqualification would be ineffective.' The information exchanged between defense counsel and Falkenstein, such as the expert recommendation or publicly available E. coli data, was not confidential and would not materially impede plaintiff's counsel. The concern that plaintiff's counsel could not effectively cross-examine the expert or that Falkenstein gained 'insight' amounts to mere 'speculation and conjecture,' not significant prejudice. Informal consultations between lawyers, like the one here, are vital to the profession and should be encouraged, not chilled by an overzealous application of conflict rules based on insubstantial prejudice.
Analysis:
This case significantly clarifies the application of professional conduct rules regarding conflicts of interest arising from informal consultations between attorneys. It establishes that even without a formal attorney-client relationship, a lawyer's receipt of confidential strategic information from a prospective opposing counsel can create a nonwaivable conflict. The ruling underscores the broad discretion of trial courts to disqualify counsel when necessary to protect the fairness and integrity of the proceedings, even overriding a client's waiver. This precedent encourages attorneys to exercise extreme caution when discussing cases with other lawyers, particularly those specializing in the same field, to avoid inadvertently creating disqualifying conflicts that could impact their entire firm and a client's choice of representation.
