Summerlin v. Johnson , 176 Ga. App. 336 ( 1985 )

On Motion for Rehearing.

The appellee attorneys urge for the first time on motion for rehearing that since the conflict of interest arises only in connection with the use of Summerlin’s prior DUI plea to prove punitive damages they should be allowed to represent Johnson in his suit for negligence and to sever the issue of punitive damages in a separate trial, under OCGA § 9-11-42 (b). See also Chupp v. Henderson, 134 Ga. App. 808 (216 SE2d 366).

Decided September 9, 1985 Rehearing denied October 4, 1985 Stephen W. Irving, for appellant. Thomas C. Bordeaux, Jr., for appellee.

We are inclined to think that the comprehensive language of the Canons of Ethics and in Bugg v. Chevron Chemical Co., 224 Ga. 809, 813 (165 SE2d 135) would prohibit the attorneys from suing Summerlin in a negligence action for which punitive damages will be sought, even in a different trial, on account of a DUI record where the attorneys represented Summerlin. In Bugg v. Chevron, supra, p. 813, the Supreme Court quotes, with approval, authorities which stated that “an attorney cannot, upon the termination of an employment, represent one whose interest in the transaction is adverse to that of his former client,” and that the “ ‘incapacity of an attorney to represent adverse interests also disqualifies him from representing interests which are in conflict with the interest of his former client, for the obligation of fidelity and loyalty still continues.’ ” (Emphasis supplied.) It would prove difficult in many cases for the plaintiff’s attorney in a negligence action to pledge his best loyalty to his client, the plaintiff, and completely separate himself from a severed count for punitive damages, which are awardable if the negligence action is successful. If he has information gained through his prior representation of the defendant which is vital to his client’s claim for punitive — and we must assume that he has — it would be hard to see how he devotes himself totally to his new client’s (the plaintiff’s) interest while remaining completely loyal to his former client (the defendant). Moreover, to give complete professional loyalty to his new client’s best interests, which would necessarily include the plaintiff’s entitlement to punitive damage based upon the same incident, the attorney we think would be obliged to convey anything he knew of benefit to the plaintiff, to any other attorneys representing his client’s interest in the same affair; and this he cannot do and remain loyal to the defendant, his former client.

The appellee has not made a motion to sever, but if he does, these ethical considerations should be given weight.

Motion for rehearing denied.