Wednesday, November 27, 2019

No Interlocutory Appeal Of Denied Motion To Disqualify Counsel

The Maine Supreme Judicial Court declined to reach the merits of an interlocutory appeal of  a denied motion to disqualify counsel

In her complaint, Flanders alleges that, in January 2017, she was  attacked by Gordon’s dog. Flanders retained Attorney Sarah Gilbert and  commenced this personal injury lawsuit against Gordon in October 2017.  Gordon retained Attorney Eric Morse of Strout & Payson, P.A., to defend her.

In January 2018, while the lawsuit against Gordon was still pending,  Flanders was injured in a motor vehicle accident. Flanders sought legal  assistance from Attorney Darby Urey, a partner of Attorney Morse at Strout  & Payson, P.A., who continued to represent Gordon in the dog-attack case. Attorney Urey discussed the potential conflict with Flanders, who then signed  a conflict waiver agreement provided to her by Attorney Urey. Attorney Urey  met and consulted with Flanders several times and gathered her medical  information; however, Flanders eventually terminated Attorney Urey’s  services and engaged new counsel.

On February 15, 2019, Flanders moved to disqualify Attorney Morse  from representing Gordon in this personal injury case based on an alleged  conflict created by Attorney Urey’s earlier representation of Flanders in  connection with the January 2018 motor vehicle accident. On  February 25, 2019, following a hearing on the motion at which Flanders briefly  testified, the court denied Flanders’s motion to disqualify Attorney Morse.

On interlocutory appeal

The death knell exception is inapplicable here. Under this exception,  an order granting a motion to disqualify is immediately appealable; however,  an order denying a motion to disqualify generally is not. State v. Carrillo,  2018 ME 84, ¶¶ 5-6, 187 A.3d 621. The reason for this rule is straightforward.  Disqualification involves a disadvantage and expense that cannot be remedied once the case is over, whereas an order denying a motion to disqualify  “implicates no such concerns.”

A footnote on exceptions to that general rule

We have twice permitted interlocutory appeals from orders denying motions to disqualify  counsel, but those cases involved facts distinguishable from the facts here. In Estate of Markheim v.  Markheim, 2008 ME 138, ¶¶ 20-21, 957 A.2d 56, we considered the merits of a denial of a motion to  disqualify under the death knell exception because the moving parties identified specific examples of  confidential information that the attorney had acquired from his prior representation that could be  harmful to them in the pending case. Here, the court found, with support in the record, that Attorney  Morse did not receive any confidential information as a result of Attorney Urey’s representation of  Flanders. See Liberty v. Bennett, 2012 ME 81, ¶¶ 20-21, 46 A.3d 1141. Similarly, we permitted an  interlocutory appeal from an order denying a motion to disqualify counsel in Butler v. Romanova,  2008 ME 99, ¶¶ 5-10, 953 A.2d 748, a divorce case, after concluding, without elaborating, that  otherwise the moving party “st[ood] to irreparably lose substantial rights.” Flanders has not  identified what substantial rights she stands to lose. See State v. Carrillo, 2018 ME 84, ¶¶ 7-8,  187 A.3d 621; Liberty, 2012 ME 81, ¶¶ 20-21, 46 A.3d 1141.


...permitting an interlocutory  appeal here would unnecessarily delay the litigation in the trial court regardless of the outcome of the appeal. Thus, allowing the appeal of this
interlocutory order to proceed would not be in the interest of judicial economy.  Liberty, 2012 ME 81, ¶¶ 22-23, 46 A.3d 1141. We therefore decline to reach the  merits of this appeal.

(Mike Frisch)

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