June 30, 2010
Both Sides Now
The North Carolina Supreme Court held that a trial court did not abuse its discretion when it revoked the pro hac vice status of two attorneys in litigation against Abbott Laboratories and a hospital when a child contracted a rare form of meningitis shortly after birth. The court reversed the Court of Appeals and held "that the North Carolina Rules of Professional Conduct do not limit the trial court's discretion to revoke pro hac vice status."
Abbott moved to disqualify counsel after admission had been granted. The issue related to a contact between plaintiff's counsel and defendant's expert in a case in Kentucky. Plaintiffs put into the record the state circuit court decision in that "factually similar" case. In that case, the circuit court found that the plaintiff's attorneys had contacted and retained the expert not knowing that Abbott had already done so. Abbott was not a party to the litigation at that juncture but was a potential defendant. The court found that plaintiff's attorney deliberately failed to advise the expert that Abbott might be sued in the case. As a result, the "expert found himself on both sides in [the case]." However, the Kentucky court denied the motion to disqualify.
The court here concluded that the trial court had the inherent authority to revoke the admission. The Court of Appeals had reached a contrary conclusion by focusing on the Rules of Professional Conduct and, in particular, the choice of law provisions of Rule 8.5. The court found that Rule 8.5 applies to a bar discipline matter. The trial court found an appearance of impropriety in the contact with the expert and that the conduct was "inconsistent with fair dealings as reflected by Rule 4.3 of the Rules of Professional Conduct." Those conclusions were sufficient to invoke the trial court's inherent authority to disqualify counsel.
The court also found sufficient evidence of involvement in the expert contact to justify disqualifying both attorneys. (Mike Frisch)
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