Parker v. Volkswagenwerk Aktiengesellschaft , 245 Kan. 580 ( 1989 )

McFarland, J.,

dissenting: A trial court must have broad discretion in this area in order to fulfill its obligation to preserve the integrity of the judicial system. Clients must be assured that their “confidential communication” with their attorneys will remain confidential. The majority opinion requires a hearing to explore whether or not material and confidential information was conveyed to Fisher. In order to prevail, the attorneys seeking disqualification will have to reveal what confidential communication was received and conveyed to Fisher and demonstrate that it is material to the case. This is a betrayal of the basic concept of attorney-client privilege.

The case involved is a major one involving a possible multimillion dollar judgment against the client on complex claims. It is inconceivable that the case has not been a high priority effort within the firm. Fisher’s wife, apparently, worked virtually full time on the case for a considerable period of time with full access to all files. Interoffice discussion of the case among the firm’s attorneys must be presumed in the circumstances herein if the appearance of impropriety is to be avoided. The district court, knowing the counsel and the history of the case, and under the totality of the circumstances, exercised its broad discretion herein. No abuse of that discretion has, in my opinion, been demonstrated. I would affirm the district court’s disqualification order.

Miller, C.J., joins the foregoing dissenting opinion.