Monday, January 26, 2009

Evidentiary Hearing Required Before Disqualification Order

The Oklahoma Court of Civil Appeals, Division I reversed an order disqualiying counsel in a dispute arising from an asserted attorney's lien. The lawyer represented the client while employed by a law firm. He left to open his own firm and took the client with him. He negotiated a settlement and the law firm asserted a lien against the proceeds. The lawyer secured a court order to release the funds, apparently without notice to the law firm. The law firm then sued the client, claiming conversion of its share of the proceeds, and sought to disqualify the lawyer due to a conflict of interest and his staus as a witnes. The trial court granted the motion.

The court here held:

Upon presentation of a motion to disqualify for an alleged conflict of interest, the trial court must hold an evidentiary hearing, and, if the trial court grants the motion to disqualify, the order of disqualification must include specific findings of fact supporting the decision. On appeal in such cases, "the function of an appellate court is to determine whether the [trial court's] findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law."

In the present case, the trial court conducted a hearing on the LawFirm's motion to disqualify, but conducted no evidentiary hearing. Further, in its order granting the motion to disqualify, the trial court did not enter specific findings of fact supporting its decision to disqualify Attorney from Client's representation. In the absence of the requisite evidentiary hearing and findings of fact, we are unable to determine whether the decision to disqualify is "supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law." (citations omitted).

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/01/the-oklahoma-co.html

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