American Family Mutual Ins. v. Dist. Ct. (Vogl) ( 2013 )

 the appropriate vehicle for challenging orders resolving motions that seek
to disqualify counsel, this writ petition is properly before this court. Nev.
Yellow Cab Corp. v. Eighth Judicial Dist. Court, 123 Nev. 44, 49, 152 P.3d
737, 740 (2007).
An attorney in Nevada may be disqualified from representing
a client adverse to a former client if (1) an attorney-client relationship
existed, (2) the current and former matters are substantially related, and
(3) the current representation is adverse to the former client. Id. at 50,
152 P.3d at 741. Petitioner and real party in interest Cynthia Vogl
acknowledge that the first and third elements are met and only the second
element is at issue. A current matter is substantially related to a former
matter when, in light of the scope of the former representation, it would be
reasonable to infer that the attorney acquired confidential information
that is relevant to the issues raised in the current matter. Id. at 52, 152
P.3d at 742.
At the outset of the hearing on petitioner's motion to
disqualify Prince, respondent District Court Judge Rob Bare disclosed to
the parties that he had been involved in drafting the current version of
NRPC 1.9, which governs an attorney's duties to his former clients. At the
district court hearing and in the parties' briefs before this court, the
parties generally agreed as to the scope of attorney Dennis Prince's former
representation of petitioner; Prince represented petitioner in numerous
cases from 2003 to 2010, including defending petitioner in cases similar to
this one involving insurance bad-faith claims. The parties also agree that
Prince did not acquire any confidential information specific to Vogl's claim,
demands, or litigation. Petitioner argues that Prince acquired confidential
knowledge of its inner workings and patterns and practices and that this
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knowledge is relevant to Vogl's case. On behalf of Vogl, Prince argues that
he acquired no particularized knowledge about petitioner's actions in
Vogl's specific case, the current and former representations had only
superficial similarities, and he otherwise gained only general knowledge
about insurance industry practices and customs. The district court found
that the information Prince acquired from petitioner was not substantially
related to Vogl's specific case.
Having considered the parties' arguments and petitioner's
appendix, we are not persuaded that the district court acted arbitrarily or
capriciously when it denied petitioner's motion to disqualify Vogl's
counsel. Nev. Yellow Cab Corp., 123 Nev. at 54, 152 P.3d at 743.
Accordingly, we
ORDER the petition DENIED.
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Parraguirr
Ck9.4
Cherry
HARDESTY, J., dissenting:
I respectfully dissent. Prince formerly represented petitioner
in various bad-faith insurance cases and it is reasonable to infer that
Prince gained confidential information about petitioner's former patterns
and practices in defending such cases and about the culture in which
petitioner handled the underlying claims. In this case, on behalf of Vogl,
Prince propounded broad discovery seeking documents from petitioner
concerning various policies and procedures that were in place during the
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time when Prince represented petitioner. In opposing petitioner's motion
for a protective order, Prince argued that such discovery was relevant and
necessary because "[t]he manner and culture in which [petitioner] handles
other similar claims is relevant to this case because such information goes
to show whether or not [petitioner] acted reasonably in this case."
Through these discovery requests and his argument, Prince has rendered
the knowledge he gained in his former representation relevant to Vogl's
case. Thus, the current litigation is substantially related to Prince's
former representation of petitioner and Prince's disqualification was
required under NRPC 1.9. Nev. Yellow Cab Corp. v. Eighth Judicial Dist.
Court, 123 Nev. 44, 52, 152 P.3d 737, 742 (2007); Waid v. Eighth Judicial
Dist. Court, 121 Nev. 605, 610, 119 P.3d 1219, 1223 (2005). Any doubts
about what confidential information Prince may have gained and its
relevance to this case should be resolved in favor of disqualification. Nev.
Yellow Cab Corp., 123 Nev. at 53, 152 P.3d at 743. Accordingly, I would
grant the petition because petitioner demonstrated all of the factors
pertinent to disqualification. Id. at 50-52, 152 P.3d at 741-42. For these
reasons, I dissent.
, J.
Hardesty
cc: Hon. Rob Bare, District Judge
Bremer Whyte Brown & O'Meara, LLP
Prince & Keating, LLP
Eighth District Court Clerk
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