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Schuff v. A.T. Klemens & Son12/27/2000
Montana v. Piper Aircraft Corp. (9th Cir. 1983), 701 F.2d 85, 87 (stating that the relevant test for disqualification is whether the former representation is substantially related to the current representation) (emphasis added). But see Unified Sewerage Agency of Wash. County v. Jelco Inc. (9th Cir. 1981), 646 F.2d 1339, 1344-45 (stating that representation adverse to a present client must be measured not so much against the similarities in litigation, as "against the duty of undivided loyalty which an attorney owes to each of his clients," and further providing that this present-client standard continues even though the representation ceases prior to filing of the motion to disqualify) (emphasis added).
Nevertheless, in moving to disqualify in the first instance Klemens should have been aware that, as a general rule, " lleged lawyer conflict of interest problems should be brought up as early as possible so that a determination may be made that does not unduly prejudice any party." In re Guardianship of Mowrer, 1999 MT 73, 23, 294 Mont. 35, 23, 979 P.2d 156, 23 (citing Trust Corp. of Montana v. Piper Aircraft Corp. (9th Cir.1983), 701 F.2d 85, 88). In Mowrer, we concluded that even if a conflict of interest had occurred (having found none), "under the circumstances . . . failure to object and move to disqualify within a reasonable time would constitute a de facto consent to Christiansen's continued representation of Mowrer and a waiver of the right to object." Guardianship of Mowrer, 23.
The Ninth Circuit, in Trust Corp. of Montana, followed the well-settled rule that a former client who is entitled to object to an attorney representing an opposing party based on a conflict of interest but who knowingly refrains from asserting it promptly is deemed to have waived that right. See Trust Corp. of Montana, 701 F.2d at 87 (citing Central Milk Producers Co-op v. Sentry Food Stores (8th Cir. 1978), 573 F.2d 988, 992; and Redd v. Shell Oil Co. (10th Cir. 1975), 518 F.2d 311, 315).
Although readily distinguishable by the facts here--namely, Klemens initiated the motion to disqualify in a timely manner--the fact remains that several viable options to forestall the looming ineradicable harm rested in its hands as lengthy discovery ensued and this matter eventually went to trial five years after the court denied its motion to disqualify.
For starters, the motion to disqualify should have been attached to a request for an injunction under the irreparable harm theory. If denied, the district court's order could have been reviewed by this Court subject to an interlocutory appeal, without awaiting the outcome of the related litigation. See Rule (1)(b)(2), M.R.App.P. (permitting interlocutory appeal from an order granting or refusing to grant an injunction). Such an appeal could have led to an order staying the proceedings below. See Rule (1)(b)(2) M.R.App.P.
Although failing to seek a remedy that would have clearly given rise to an interlocutory appeal, Klemens could have nevertheless sought a writ of supervisory control, arguing that the alleged taint of the Marra firm's representation of Schuff would render any future remedy by appeal inadequate. See Plumb v. Fourth Jud. Dist. Court (1996), 279 Mont. 363, 368-69, 927 P.2d 1011, 1014 (citations omitted). Or, alternatively, Klemens could have sought certification of the order pursuant to Rule 54(b), M.R.Civ.P., arguing that the issue of disqualification was a matter unrelated to the merits of the underlying litigation. See, e.g., Roy v. Neibauer (1980), 188 Mont. 81, 87, 610 P.2d 1185, 1189 (listing five factors and three "guiding principles" that court should consider in making a Rule 54(b) certification) (ci
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