Musa v. Gillette Communications of Ohio, Inc. ( 1994 )

Appellant, Better Business Bureau, appeals from the order of the trial court disqualifying attorney Frederick W. Whatley and the law firm Walter, Haverfield, Buescher Chockley from representing it. For the reasons set forth below, we reverse and remand.

I Appellee, Jalil Ibn Musa, commenced case No. 173894 on August 4, 1989, seeking damages against appellant, appellant's employee James M. Sutter, Gillette Communications and various employees of WJW-TV. Appellee alleged that appellant, Sutter and Gillette made a false and libelous television report concerning various businesses owned by appellee. Appellee further alleged that Sutter investigated appellee while in the scope and course of his duties with appellant. That case was dismissed by the trial court without prejudice for appellee's failure to comply with numerous discovery requests.

The case sub judice was commenced again on February 11, 1991 against the same defendants alleging identical damages. Once again appellee alleged that the acts of Sutter were committed while in the course and scope of his employment with appellant, which appellant and Sutter do not deny.

The law firm of Walter, Haverfield, Buescher Chockley, and specifically attorney Frederick W. Whatley of that firm, represented all defendants in this matter.

Allegations have been made that on June 12, 1992, Sutter on his own met with appellee's counsel to discuss discovery matters. Appellee's counsel thereafter withdrew from the case, and Whatley withdrew as counsel for Sutter. Further, appellant moved for a protective order limiting the scope of deposition of Sutter to exclude discussions between Sutter and appellee's counsel.

On June 27, 1992, Sutter, pro se, filed a motion in opposition to appellant's motion for protective order. In that motion, Sutter alleged that Walter, Haverfield, Buescher Chockley committed an unethical act concerning discovery matters while they represented him. Sutter, however, withdrew that motion on July 14, 1992.

On June 30, 1992, the law firm of Ulmer Berne made its appearance on behalf of Sutter.

On July 6, 1992, appellee Musa, pro se, moved to disqualify Whatley and Walter, Haverfield, Buescher Chockley from representing all defendants on the basis of Sutter's allegations in the June 27, 1992 pro se motion (which Sutter withdrew on July 14, 1992).

On September 2, 1992, Sutter, through counsel, moved for a protective order prohibiting appellee from questioning Sutter concerning his relationship with Whatley and Walter, Haverfield, Buescher Chockley, and the allegations he made against them. That motion was denied by the trial court.

Thereafter, the partial deposition of Sutter was taken by appellee and appellant. No objection to the attendance of Whatley at that deposition appears in the record. The deposition was adjourned, and reconvened on December 3, 1992. At that time, appellee moved for a protective order prohibiting Whatley from questioning Sutter, and to disqualify Whatley as counsel for all defendants on the basis of a possible violation of the Code of Professional Responsibility. Nevertheless, Whatley questioned Sutter without further objection.

On December 14, 1992, appellant filed a brief opposing appellee's motion for protective order and for disqualification. Appellant then supplemented that brief on January 11, 1993. In the supplemental brief, appellant provided copies of the following documents:

(1) letter from Sutter's counsel to Whatley indicating that no improper questions were asked by Whatley at Sutter's deposition.

(2) letter from Sutter's counsel to trial court expressing Sutter's feeling that his defense will be prejudiced by disqualification of Whatley as his and appellant's interests are identical.

(3) affidavit of Sutter waiving all conflicts of interest between himself and Whatley.

On January 15, 1993, the trial court on its own issued an order disqualifying Whatley and Walter, Haverfield, Buescher Chockley from representing appellant and ruled:

"This court further finds that Plaintiff has taken the deposition of Defendant Sutter, such deposition having commenced on September 4, 1992, and having been continued to December 3, 1992; and that prior to the continued deposition of December 3, 1992, when it was anticipated that Mr. Whatley would be cross-examining Defendant Sutter, his former client, Plaintiff filed a Motion for a Protective Order to prohibit Mr. Whatley from examining Defendant Sutter on the ground that the potential for an ethical violation existed if he were to conduct such examination of Defendant Sutter. Specifically, a violation of the following ethical consideration of the Code of Professional Responsibility could occur in such case:

"``A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes * * *.' Ethical Consideration EC4-[5].

"This Court further finds that, based on the potential for harm to his former client as a result of information, knowledge and disclosures which would have been made to Mr. Whatley during the time their attorney-client relationship existed, the Motion for a Protective Order filed by Plaintiff on December 3, 1992 should have been granted, and this Court will intervene at this point to disqualify Mr. Whatley and his firm from further representation of Defendant Better Business Bureau in order to prevent the possibility of an ethical violation from occurring in the subsequent course of this litigation."

Nowhere in the court's order does it actually indicate that the court reviewed the deposition of Sutter, specifically Whatley's questioning of Sutter.

This appeal follows that ruling.

II For its sole assignment of error, appellant contends that the trial court erred in disqualifying Frederick W. Whatley and Walter, Haverfield, Buescher Chockley from further representing it in this case.

A trial court has the "inherent power to regulate the practice before it, and protect the integrity of its proceedings," which includes the "``authority and duty to see to the ethical conduct of attorneys in proceedings'" before the court. Royal Indemn. Co. v. J.C. Penney Co. (1986), 27 Ohio St.3d 31,33-34, 27 OBR 447, 449, 501 N.E.2d 617, 620. Under appropriate circumstances, an attorney may be disqualified from continued participation in ongoing litigation in the event of truly egregious misconduct which is likely to infect future proceedings. Mentor Lagoons, Inc. v. Rubin (1987), 31 Ohio St.3d 256,259, 31 OBR 459, 461-462, 510 N.E.2d 379, 381-382; MapleHts. v. Redi Car Wash (1988), 51 Ohio App.3d 60, 61,554 N.E.2d 929, 930-931.

A trial court has great discretion in supervising the conduct of members of the bar practicing before it, and a court's ruling on such matters will not be disturbed absent a showing that the court abused that discretion. See Royal Indemn., supra,27 Ohio St.3d at 35-36, 27 OBR at 450-451, 501 N.E.2d at 620-622.

Concerning this abuse of discretion standard, the Ohio Supreme Court stated in AAAA Ent., Inc. v. River Place (1990),50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601, that:

"``Abuse of discretion' has been defined as an attitude that is unreasonable, arbitrary or unconscionable. * * * It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.

"A decision is unreasonable if there is no sound reasoning process that would support that decision."

In sifting information presented to it, a trial court should bear in mind that disqualification is a drastic measure. In fact, a violation of the Code of Professional Responsibility alone should not result in disqualification unless disqualification is found to be absolutely necessary.Centimark Corp. v. Brown Sprinkler Serv. (1993), 85 Ohio App.3d 485,488-489, 620 N.E.2d 134, 136-137; accord Gould, Inc. v.Mitsui Mining Smelting Co. (N.D. Ohio 1990), 738 F. Supp. 1121. Certainly, more is required than a mere allegation of an ethical violation. Centimark, supra; accord Kitchen v. Aristech Chem. (S.D.Ohio 1991), 769 F. Supp. 254.

Appellant's primary contention is that there was no present conflict of interest between Whatley and Sutter. We agree. Information before the court at the time of its ruling included (1) admissions by all parties that any action taken by Sutter against appellee occurred while in the scope and course of his employment with appellant, thus making the interests of Sutter and appellant identical, (2) a complete waiver by Sutter of any conflict of interest concerns, (3) information in Sutter's attorney's letter that no improper questions were asked of Sutter by Whatley, and (4) evidence that Sutter withdrew his accusation of unethical conduct.

Nor will the mere allegations of ethical violations, not supported by the record, justify drastic action.

Finally, a protective order, if needed, would have served the court's purpose in limiting disclosure of confidences.

We conclude that the trial court's ruling disqualifying Whatley and Walter, Haverfield, Buescher Chockley was not absolutely necessary, and for the court not to take into account undisputed documents filed with the court was an abuse of that court's discretion.

Appellant's assignment of error is sustained.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Judgment reversedand cause remanded.

PATTON, P.J., concurs.

NUGENT, J., concurs separately.

AUGUST PRYATEL, J., retired, of the Eighth Appellate District, sitting by assignment.