SW Acquisition Co., Inc. v. Akzo Nobel Paints, L.L.C. , 2022 Ohio 3674 ( 2022 )

[Cite as SW Acquisition Co., Inc., v. Akzo Nobel Paints, L.L.C., 2022-Ohio-3674.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
SW ACQUISITION CO., INC., :
Plaintiff-Appellee, :
No. 111327
v. :
AKZO NOBEL PAINTS, LLC, ET AL., :
Defendants, :
[Appeal by PPG Architectural :
Finishes, Inc.,
Defendant-Appellant.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 13, 2022
Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-18-904917
Appearances:
Strauss Troy Co., LPA and Philomena S. Ashdown, for
appellee.
Thompson Hine LLP, Timothy J. Coughlin, Mark R.
Butscha, Jr., and Brenna L. Fasko, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant PPG Architectural Finishes, Inc. (“PPG”)
appeals from an order of the Cuyahoga County Court of Common Pleas denying its
motion to disqualify counsel for plaintiff-appellee SW Acquisition Co., Inc.
(“SWAC”) under Prof.Cond.R. 3.7. PPG contends that the common pleas court
abused its discretion in refusing to disqualify SWAC’s counsel, attorney Philomena
Ashdown and her law firm, Strauss Troy Co., LPA (“Strauss Troy”), from
representing SWAC in proceedings before the common pleas court and in a related,
yet-to-be-filed arbitration proceeding because (1) attorney Ashdown and Strauss
would likely be “necessary witnesses” in the arbitration and (2) attorney Ashdown
and Strauss Troy’s representation of SWAC in the arbitration would likely “require
them to defend (or abandon) their prior work,” creating an “inherent conflict of
interest” under Prof.Cond.R. 1.7 and 1.9.
For the reasons that follow, we affirm the common pleas court.
Procedural and Factual Background
In September 2009, Miller Brothers Wallpaper Company, Inc.
(“Miller Bros.”) and Akzo Nobel Paints, LLC (“Akzo Nobel”), the predecessor-in-
interest to PPG, entered into (1) an asset purchase agreement (the “APA”), pursuant
to which Miller Bros. purchased certain retail paint stores and other assets from
Akzo Nobel, and (2) an authorized dealer agreement (the “ADA”), pursuant to which
Miller Bros. became a “semi-exclusive dealer” of certain Akzo Nobel paint products.
Strauss Troy represented Miller Bros. in the negotiation, execution and closing of
the ADA and the APA. Attorney Ashdown was not involved in the representation of
Miller Bros. in connection with the ADA or APA.
The ADA contained a broadly worded arbitration provision, which
states, in relevant part:
Any controversy or claim arising out of or relating to this Agreement or
breach of this Agreement shall finally be settled by binding arbitration
before a single arbitrator (the “Arbitration Tribunal”) who will be
jointly appointed by the Parties. The Arbitration Tribunal will self-
administer the arbitration proceedings utilizing the Commercial Rules
of the American Arbitration Association (“AAA”); however, the AAA
will not be involved in the administration of the arbitration. The
arbitrator must be a retired judge of a state or federal court of the
United States or a licensed lawyer with at least ten (10) years of
corporate or commercial law experience from a law firm with at least
10 attorneys and at least an AV rating by Martindale Hubbell. If the
parties cannot agree on an arbitrator, either party may request, any
judge located in Cuyahoga County, Ohio to appoint an arbitrator, which
appointment shall be final. The arbitration will be held in Cleveland,
Ohio. Each party will have discovery rights as provided by the Federal
Rules of Civil Procedure within the limits imposed by the arbitrator;
provided, however, that all such discovery will be commenced and
concluded within sixty (60) days of the selection of the arbitrator,
unless otherwise agreed by the parties. It is intent of the parties that
any arbitration will be concluded as quickly as reasonably practicable.
* * * This agreement will be enforceable, and any arbitration award will
be final and non-appealable, and judgment thereon may be entered in
any court of competent jurisdiction.
ADA at ¶ 21.
Miller Bros. filed for bankruptcy in October 2012. Attorney Ashdown
and Strauss Troy represented Miller Bros. in the bankruptcy proceeding.
The voluntary bankruptcy petition was signed and filed by ttorney
Ashdown and was also signed by Miller Bros.’ president and sole shareholder, Victor
Wells, who declared “under penalty of perjury” that the information provided in the
petition was “true and accurate.”
On Schedule B of its bankruptcy petition, on which Miller Bros. was
to list “all [of its] personal property,” including “contingent and unliquidated claims
of every nature” and the “estimated value of each,” Miller Bros. listed a “potential
claim against former supplier [Akzo Nobel] for breach of contract.” It identified the
“[c]urrent [v]alue of [d]ebtor’s [i]nterest [i]n [that] [p]roperty” as “0.00.” No other
claims were listed on the schedule.
In January 2013, the bankruptcy court approved Miller Bros.’ sale of
its assets to SWAC. Miller Bros.’ bankruptcy case was dismissed in July 2013.
In September 2013, SWAC filed a complaint in the Hamilton County
Court of Common Pleas (the “Hamilton County complaint” or the “Hamilton County
action”) against Akzo Nobel and John Does 1-10. SWAC averred that it had acquired
“all causes of action of Miller Bros.” by virtue of its purchase of Miller Bros.’ assets
during the bankruptcy proceeding and asserted “causes of action” for fraud, breach
of contract and punitive damages against the defendants.
SWAC alleged that Akzo Nobel had fraudulently induced Miller Bros.
to enter into the APA by providing false financial information. SWAC further alleged
that Akzo Nobel had overbilled Miller Bros. for products purchased and sold
pursuant to the APA, had refused to provide Miller Bros. with credits required by
the APA, had misquoted prices and costs of materials and had “guaranteed” Miller
Bros. “a profit percentage of 28%” on all Akzo Nobel products sold by Miller Bros.
(but had failed to deliver on that guarantee) in breach of the terms of the APA.
SWAC also alleged that although Miller Bros. and Akzo Nobel had expressly agreed
that Miller Bros. would have “the exclusive right to sell Akzo Nobel products within
a specified geographical area,” Akzo Nobel had “knowingly” and “intentionally”
violated the APA by selling products directly to customers in Miller Bros.’ “protected
[dealership] area.” SWAC claimed that Akzo Nobel’s actions caused Miller Bros.’
bankruptcy and sought to recover compensatory and punitive damages from Akzo
Nobel.
Attorney Robert Kelly represented SWAC in the Hamilton County
action. In October 2013, the case was removed to the United States District Court
for the Southern District of Ohio (the “federal case”). Attorney Kelly continued to
represent SWAC following removal.
In December 2013, PPG, successor-by-merger to PPG Architectural
Coatings, L.L.C., f.k.a. Akzo Nobel, filed a motion to dismiss and compel arbitration
in the federal case. The federal court granted the motion and dismissed the
complaint without prejudice. SW Acquisition Co. v. Akzo Nobel Paints LLC, S.D.
Ohio No. 1:13-cv-785-JW, 2014 U.S. Dist. LEXIS 56813 (Apr. 23, 2014).
In October 2018, SWAC, then represented by attorney Kelly, filed a
complaint against Akzo Nobel, PPG Industries, Inc. and John Does 1-101 in the
Cuyahoga County Court of Common Pleas. The complaint, which was amended in
1 The John Doe defendants were later dismissed.
December 2018,2 requested appointment of an arbitrator “to fully and finally resolve
all claims between the parties” in accordance with the ADA’s arbitration provision.
SWAC averred that the claims it sought to arbitrate “included” but were “not limited
to” the fraud and breach-of-contract claims it had previously asserted against Akzo
Nobel in the Hamilton County complaint. Amended Complaint at ¶ 20. SWAC also
averred that the Hamilton County complaint, “which set forth [its] known claims[,]
* * *[,] may be amended to include additional items during the course of discovery
in the arbitration process.” Id. at ¶ 21.
In February 2019, PPG moved to dismiss the amended complaint,
arguing that SWAC lacked standing to pursue Miller Bros.’ claims or, alternatively,
that it should be judicially estopped from seeking the appointment of an arbitrator
to resolve its purported claims because such claims had either not been disclosed in
the bankruptcy proceeding or had been disclosed with a value of $0 in the
bankruptcy proceeding. After SWAC filed a brief in opposition, the common pleas
court converted the motion to dismiss into a motion for summary judgment.
In August 2019, after further briefing, the common pleas court
granted summary judgment in favor of PPG, holding that SWAC lacked standing to
pursue its claims against PPG and was judicially estopped from bringing its claims
against PPG. The common pleas court further held that “the instant dispute [was]
not arbitrable.”
2 According to SWAC, it amended its complaint, at PPG’s request, “to assert in this
action[] the claims [SWAC] desire[s] to submit to arbitration.” Amended complaint at
¶ 19.
SWAC appealed. On appeal, this court held that the common pleas
court had erred in determining that the potential claims referenced in SWAC’s
amended complaint were not arbitrable under the provisions of the ADA and had
“improperly considered” and “prematurely addressed” PPG’s standing and judicial
estoppel arguments — “issues that must be resolved by the appointed arbitrator.”
SW Acquisition Co. v. Akzo Nobel Paints, L.L.C., 2021-Ohio-309, 167 N.E.3d 591,
¶ 38-41, 46-47 (8th Dist.). This court reversed the common pleas court’s granting
of summary judgment and remanded the case, instructing the common pleas court
to
(1) vacate its order granting summary judgment in favor of PPG;
(2) “make an order directing the parties to proceed to arbitration”
pursuant to R.C. 2711.03(A); and (3) appoint an arbitrator based on the
parties’ failure to agree on a jointly-appointed arbitrator as required
under the ADA.
Id. at ¶ 49.
On remand, the common pleas court ordered the parties to submit a
list of suggested arbitrators. On June 7, 2021, after reviewing the lists submitted by
the parties, the common pleas court ordered the parties to arbitrate the matter
before one of two named arbitrators, whomever had the first available arbitration
date, and to notify the court once the arbitration was scheduled.
On October 6, 2021, SWAC filed a “motion to substitute/withdraw[]
counsel without hearing” requesting that attorney Robert Kelly be permitted to
withdraw from the case and that attorney Philomena Ashdown be substituted as its
counsel. No explanation was provided in the motion as to the reason for the
withdrawal and substitution of counsel. Two days later, the common pleas court
granted the motion. The common pleas court then scheduled a telephone
conference for October 21, 2021, at which the parties were to address their failure to
comply with the common pleas court’s June 7, 2021 order.
On October 14, 2021, PPG filed a “motion to disqualify new counsel”
for SWAC (the “motion to disqualify”), arguing that attorney Ashdown and Strauss
Troy should be disqualified from representing SWAC in any proceedings before the
common pleas court and in any related arbitration, pursuant to Prof.Cond.R. 3.7,
because attorney Ashdown and other attorneys from Strauss Troy would “be subject
to discovery” and would be “necessary witnesses” in the arbitration. Specifically,
PPG argued that because Strauss Troy had represented Miller Bros. in connection
with the negotiation, execution, and closing of the ADA and APA — the basis of the
fraud and breach-of-contract claims Miller Bros. sought to arbitrate — and because
attorney Ashdown and Strauss Troy had represented Miller Bros. in the bankruptcy
proceeding (and had “signed and filed” several bankruptcy documents and “made
representations to the bankruptcy court” that were “relevant to [the parties’]
dispute” and to PPG’s defenses to SWAC’s claims) — attorney Ashdown and Strauss
Troy would be “necessary” witnesses in the arbitration and, therefore, could not
continue their representation of SWAC “in this matter and any related arbitration”
in accordance with Prof.Cond.R. 3.7(a).3 PPG further asserted that disqualification
3 Attorney Ashdown and Strauss Troy also represented SWAC in the prior appeal
in this case, SW Acquisition Co., 2021-Ohio-309, 167 N.E.3d 591.
of attorney Ashdown and Strauss Troy would not cause “substantial hardship” to
SWAC because attorney Ashdown and Strauss Troy brought no “specialized
expertise” to the case (“other than their intertwined involvement in the underlying
facts”) and because either attorney Kelly or other new counsel could “competent[ly]”
and “adequately” represent SWAC.
In support of its motion, PPG submitted an affidavit from PPG
attorney Mark Butscha, Jr., detailing a telephone conversation between attorney
Butscha and Attorney Kelly in January 2020 related to what attorney Butscha
perceived to be a potential conflict of interest arising out of attorney Ashdown’s
representation of SWAC in the prior appeal. PPG also pointed to (1) SWAC’s original
and amended complaint in this action, (2) certain filings from the Miller Bros.
bankruptcy proceeding, (3) an unauthenticated “transcript” from a creditor’s
meeting in the bankruptcy proceeding (which PPG acknowledged was “not proper
evidence”) and (4) the parties’ briefing on PPG’s motion to dismiss, PPG’s brief in
the prior appeal and various court orders.
SWAC opposed the motion, asserting that (1) PPG lacked standing to
seek disqualification of SWAC’s counsel based on a conflict of interest and (2) any
ruling by the common pleas court on the issue would be “premature” and “outside
the purview of [the] court’s jurisdiction” because it was “mere speculation” as to
whether any Strauss Troy attorneys would be witnesses in the yet-to-be-filed
arbitration proceeding and the common pleas court’s jurisdiction in the case was
“solely to appoint an arbitrator and not to delve into the merits of the case.” In
support of its opposition, SWAC attached a printout of the electronic docket from
the federal case.
PPG filed a reply in which it asserted that the common pleas court had
jurisdiction to decide the disqualification issue based on the “inherent authority” of
courts to prevent ethical violations by attorneys. PPG also claimed that it would be
entitled to conduct discovery, and introduce evidence, in the arbitration regarding
an unrelated legal malpractice suit that had been filed against attorney Ashdown
and Strauss Troy in the United States District Court for the Eastern District of
Kentucky, which allegedly arose “from advice they provided about whether the
failure to list an asset in a debtor’s bankruptcy schedules would preclude later
assertion of a claim based on the doctrines of judicial estoppel and fraud on the
bankruptcy court” (the “Kentucky legal malpractice action”). In support of their
reply, PPG attached copies of select filings from the Kentucky legal malpractice
action.
On December 17, 2021, the common pleas court held oral argument
on the motion to disqualify in which the parties, in large part, simply reiterated the
arguments set forth in their briefs. No evidence was submitted at the hearing.
On January 21, 2022, the common pleas court denied PPG’s motion
to disqualify, concluding that PPG had not met its burden of establishing that
attorney Ashdown and Strauss Troy were likely to be necessary witnesses in the
arbitration or would be otherwise precluded from representing SWAC in the
arbitration due to a conflict of interest. The common pleas court explained its
reasoning, in relevant part, as follows:
It is the burden of the party moving for disqualification of an attorney
to demonstrate that disqualification is necessary. * * * While
defendants have shown that testimony from Attorney Ashdown and
Strauss Troy is likely to be relevant and highly useful, they have not
demonstrated the necessity of that testimony. Others involved in the
underlying bankruptcy — for instance, a client representative — may be
able to testify as to the meaning of those filings. In addition, it is not
clear at this juncture that defendants have attempted to procure the
information they need from any other source. Accordingly, the court
finds that defendants have not met their burden, and that Attorney
Ashdown should not be disqualified from representing plaintiff.
Moreover, to the extent that defendants make a separate argument that
Attorney Ashdown and Strauss Troy should be disqualified based on a
conflict of interest — defendants argue that their representation of
plaintiff will require them to either defend or abandon their prior work
— the court also finds that argument unavailing. The court will not
disqualify Attorney Ashdown or Strauss Troy based on the possibility
that their prior work might come into question during the arbitration.
The common pleas court ordered the parties to select an arbitrator by
February 15, 2022. The parties ultimately agreed on an arbitrator and, on
February 24, 2022, the common pleas court entered an order, granting judgment
“on the relief requested in the amended complaint” and dismissing the case with
prejudice. The court stated that “by agreement of the parties,” the matters
referenced in the complaint were referred to arbitration pursuant to R.C. 2711.03
and that Michael Diamant was appointed as arbitrator “under terms to be agreed
upon between Mr. Diamant and the parties.”
PPG appealed, raising the following two assignments of error for
review:
First Assignment of Error
The Court of Common Pleas, Cuyahoga County, abused its discretion
by denying PPG’s motion to disqualify (“Motion to Disqualify”)
attorney Philomena Ashdown (“Attorney Ashdown”) and her firm,
Strauss Troy Co., LPA (“Strauss Troy”), under Rule 3.7, Ohio Rules of
Professional Conduct (also known as the attorney-as-witness Rule), as
new counsel for Plaintiff-Appellee SW Acquisition Co., Inc. (“SWAC”)
based on the court’s untethered finding that the testimony sought from
Attorney Ashdown and Strauss Troy “may be” obtainable elsewhere
because that finding is purely speculative, went outside the factual
record, and is contrary to the record evidence.
Second Assignment of Error
The Court of Common Pleas, Cuyahoga County, abused its discretion
by denying PPG’s Motion to Disqualify despite the substantial conflicts
of interest of Attorney Ashdown and Strauss Troy under Rules 1.7 and
1.9, Ohio Rules of Professional Conduct, presented by their dual roles
as advocates and witnesses.
Law and Analysis
‘“The Ohio Supreme Court exercises exclusive jurisdiction over the
admission of lawyers to practice law in Ohio and over the discipline of such
lawyers.’” Carr v. Acacia Country Club Co., 8th Dist. Cuyahoga No. 91292, 2009-
Ohio-628, ¶ 14, quoting Horen v. Bd. of Edn., 174 Ohio App.3d 317, 2007-Ohio-
6883, 882 N.E.2d 14, ¶ 21 (6th Dist.). However, a court has “inherent authority to
supervise the members of the bar appearing before it, * * * [which] includes the
power to disqualify counsel in specific cases.” Fried v. Abraitis, 2016-Ohio-934, 61
N.E.3d 545, ¶ 11 (8th Dist.), citing Royal Indemn. Co. v. J.C. Penney Co., 27 Ohio
St.3d 31, 33-34, 501 N.E.2d 617 (1986); and Mentor Lagoons, Inc. v. Rubin, 31 Ohio
St.3d 256, 259, 510 N.E.2d 379 (1987). “‘[L]ower courts have a duty to ensure that
the attorneys who practice before it do not violate the disciplinary rules and those
courts have the inherent power to disqualify an attorney from acting as counsel in a
case where the attorney cannot or will not comply with the [disciplinary rules] and
such action is necessary to protect the dignity and authority of the court.’” Carr at
¶ 15, quoting Horen at ¶ 21.
Because it interferes with a client’s right to choose counsel,
‘“[d]isqualification of an attorney is a drastic measure, which should not be imposed
unless absolutely necessary.’” Hoag v. Ent. Holdings, 2021-Ohio-506, 168 N.E.3d
142, ¶ 17 (8th Dist.), quoting Quiros v. Morales, 8th Dist. Cuyahoga No. 894274,
2007-Ohio-5442, ¶ 15; see also Gonzalez-Estrada v. Glancy, 2017-Ohio-538, 85
N.E.3d 273, ¶ 10 (8th Dist.), citing Brown v. Spectrum Networks, Inc., 180 Ohio
App.3d 99, 2008-Ohio-6687, 904 N.E.2d 576, ¶ 11 (1st Dist.).
‘“While motions to disqualify may be legitimate and necessary under
certain circumstances, they should be viewed with extreme caution for they can be
misused as techniques of harassment.’” Hoag at ¶ 18, quoting Cliffs Sales Co. v. Am.
S.S. Co., N.D. Ohio No. 1:07-CV-485, 2007 U.S. Dist. LEXIS 74342, 7 (Oct. 4, 2007),
quoting SST Castings, Inc. v. Amana Appliances, Inc., 250 F.Supp.2d 863, 865-866
(S.D.Ohio 2002); see also A.B.B. Sanitec W., Inc. v. Weinsten, 8th Dist. Cuyahoga
No. 88258, 2007-Ohio-2116, ¶ 12 (motions to disqualify counsel brought pursuant
Prof.Cond.R. 3.7(a) ‘“should be viewed with disfavor because of their potential to
interfere with a defendant’s right to choose his [or her] own counsel and their strong
potential for abuse.’”), quoting United States v. Poulsen, S.D.Ohio No. CR2-06-129,
2006 U.S. Dist. LEXIS 68214, 27 (Sept. 12, 2006). The party moving for
disqualification of an attorney bears the burden of proving that disqualification is
necessary. Hoag at ¶ 19; Fried at ¶ 19. We review a lower court’s decision whether
to disqualify counsel for abuse of discretion. See, e.g., Hoag at ¶ 16, citing 155 N.
High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 426, 650 N.E.2d 869 (1995);
Mentor Lagoons, 31 Ohio St.3d 256, 510 N.E.2d 379; Gonzalez-Estrada at ¶ 10.
In its first assignment of error, PPG contends that the common pleas
court abused its discretion in denying its motion to disqualify attorney Ashdown and
Strauss Troy on the ground that attorney Ashdown and other unidentified Strauss
Troy attorneys are likely to be necessary witnesses in the arbitration and that, as
such, they are precluded from representing SWAC in the arbitration pursuant to
Prof.Cond.R. 3.7.
In its second assignment of error, PPG argues that the common pleas
court abused its discretion in denying PPG’s motion to disqualify attorney Ashdown
and Strauss Troy based on their “substantial conflicts of interest” under
Prof.Cond.R. 1.7 and 1.9. Specifically, PPG contends that attorney Ashdown and
Strauss Troy’s representation of SWAC creates “an unwaivable conflict of interest”
because “the representation is limited by the responsibilities of Attorney Ashdown
and Strauss Troy to their former client, Miller Bros.[,] * * * and their own interests.”
PPG contends that the common pleas court was “alerted” to this conflict “but chose
to ignore it” and, thereby, “abandoned its duty to ensure compliance with Rule 3.7
by failing to analyze the conflicts of interest at issue,” “prejudicing PPG in its ability
to defend against SWAC’s claims.”
SWAC responds that the common pleas court properly denied PPG’s
motion to disqualify because (1) a clearly identifiable nonattorney witness, Stephen
Wells, exists, who has knowledge of the claims at issue, and (2) it would be
“premature and speculative” to “assume * * * that a conflict would exist” and to
disqualify Ashdown and Strauss Troy “when the arbitration complaint has not even
been filed” and “when the Trial Court is not and never will be the trier of fact.”
In this case, PPG sought to have the common pleas court disqualify
counsel not only in a specific case pending before the common pleas court, but also
in a related, yet-to-be-filed, arbitration proceeding.4 Because it has not been shown
that the common pleas court was the appropriate entity to decide the
disqualification issue as it relates to the yet-to-be-filed arbitration proceeding, we
overrule PPG’s assignments of error.
The scope of the amended complaint in this case was limited. The
amended complaint contained a single prayer for relief, seeking the appointment of
an arbitrator “to fully and finally resolve all claims between the parties” in
accordance with R.C. 2711.03(A) and the ADA’s arbitration provision. As alleged in
4 On appeal, PPG argues that the common pleas court abused its discretion in
denying its motion to disqualify without distinguishing between attorney Ashdown and
Strauss Troy’s representation of SWAC before the common pleas court and attorney
Ashdown and Strauss Troy’s representation of SWAC in the yet-to-be-filed arbitration
proceeding. After ruling on PPG’s motion to disqualify, the common pleas court granted
the relief requested in SWAC’s amended complaint and dismissed the amended
complaint with prejudice. PPG does not challenge that dismissal on appeal. Accordingly,
to the extent PPG contends that the common pleas court abused its discretion in failing
to disqualify attorney Ashdown and Strauss Troy from representing SWAC before the
common pleas court, that issue is moot, and we do not address it further here.
the amended complaint, this relief was requested because the parties had been
“unable to select an arbitrator by agreement” as provided in ADA. Thus, the sole
issue before the common pleas court was the appointment of an arbitrator. See SW
Acquisition Co., 2021-Ohio-309, 167 N.E.3d 591, at ¶ 38 (where “SWAC’s amended
complaint did not attempt to invoke the trial court’s jurisdiction to address the
justiciability of the potential claims that are related to the parties’ contractual
relationship under the ADA,” trial court “exceeded the scope of the discretion
afforded to it under R.C. 2711.03 by looking through the petition to compel
arbitration to prematurely review whether SWAC had standing to pursue claims that
were not before the court”).
No arbitration demand has been filed, no answering statement
responding to the arbitration demand has been filed and no discovery has been
conducted. As such, it is unknown precisely what claims and what defenses will
ultimately be presented for resolution in the arbitration and what evidence may be
available to support those claims and defenses.
In Advisory Opinion 2021-03, the Ohio Board of Professional
Conduct opined that this type of disqualification issue should be properly decided
by the arbitrator: “[T]he decision whether to permit a lawyer to represent a party in
an arbitration when the lawyer will also serve as a necessary witness is within the
sole discretion of the arbitrator.” Ohio Bd. Prof. Cond. Advisory Opinion 2021-03
at 3 (Apr. 9, 2021).
Because PPG has not shown that the common pleas court abused its
discretion in denying PPG’s motion for disqualification, we overrule its assignments
of error.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
LISA B. FORBES, J., CONCUR