Tuesday, January 13, 2009

No Second Bite

An attorney had represented a client since 1984. The client (a non-lawyer) went to work for a law firm and, on the client's recommendation, the attorney represented the firm in several matters. The client was then terminated by the law firm, who then retained the attorney bring an employment action against the law firm. The law firm sought to disqualify the lawyer and a circuit court denied the motion to disqualify, finding no ethical breach. The decision was affirmed on appeal.

The law firm then filed suit against the lawyer and his new firm on a variety of related claims. The South Carolina Supreme Court held that the issue of disqualification was barred by the doctrine of collateral estoppel:

The issue in this suit is whether the Firm has a disqualifying conflict of interest, which is the same question litigated in the Browder appeal.  As the Browder appeal has been concluded, we affirm the dismissal of this suit on the basis of collateral estoppel.  See Rule 220(c), SCACR (court can affirm on any ground appearing in the record).  “When an issue has been actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action whether on the same or a different claim.”  Zurcher v. Bilton, supra.  Here, the claims are identical: that the Firm has a conflict of interest such that it cannot represent Browder in his employment suit against Ross Marine.

Furthermore, collateral estoppel should not be invoked unless the party was afforded a full and fair opportunity to litigate the issue in the first case.  Zurcher, supra.  In the Browder order, the circuit court judge held that “Ross Marine has had the ample time of approximately a year from the filing of this case until the present to fully develop their conflict position….”  On appeal, appellants did not challenge that finding, and it is too late to allege now that they were not afforded a full and fair opportunity to litigate the conflict claim in the Browder case.

Update: The comment raises a good question. I assume (although the opinion does not seem to say so) that the Ross Marine firm is a former client and the the question of disqualification is thus governed by Rule 1.9. (Mike Frisch)


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I'm just a law student but I'm confused. Is this a quirk in South Carolina's rules that allow a lawyer to represent a client in an action against another client? Or perhaps does it depend on some facts that are missing from this write-up?

Posted by: bluebook | Jan 15, 2009 5:03:09 AM

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