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Brown v. Eighth Judicial District Court of the State of Nevada12/19/2000
This writ petition presents us with the question whether a party's counsel of choice should be disqualified based on his close association with a law firm disqualified under SCR 160 for an imputed conflict of interest. We conclude that disqualification is not warranted absent proof of a reasonable probability that counsel actually acquired privileged, confidential information, and we therefore grant the petition.
Petitioner Florence Brown sustained life-threatening injuries in an automobile accident in August 1992. She was hospitalized and underwent surgery by real party in interest, Dr. John Thalgott, and Dr. Jeffrey Zapinsky. In late 1993 or early 1994, Mr. and Mrs. Brown hired attorney Thomas C. Mehesan to represent them.
Mehesan negotiated a settlement of the automobile accident case; however, he felt compelled to withdraw from representation of the Browns when they and medical care lien holders both claimed the settlement proceeds that had been deposited in Mehesan's trust account. Mehesan referred the Browns to the law firm of Barker, Gillock, Koning & Brown (later Gillock, Koning, Markley & Killebrew; now Gillock, Markley & Killebrew), which agreed to represent the Browns in a medical malpractice action.
The Gillock firm commenced proceedings before the Medical-Legal Screening Panel (now the Medical-Dental Screening Panel) against Dr. Thalgott. Dr. Thalgott was represented by attorney Neil G. Galatz, who had previously represented the doctor in other matters. Galatz was assisted in his representation of Dr. Thalgott by his paralegal and personal secretary, Lucrezia Smith, who had worked for Galatz since July 1987. The screening panel issued a finding of no reasonable probability of medical malpractice by Dr. Thalgott in February 1996, and the Gillock firm filed a medical malpractice complaint on behalf of the Browns in March 1996.
In September 1996 Smith left the Galatz law firm to work for the law firm of Broening, Oberg, Woods, Wilson & Cass; Smith then left that firm in March 1997 to work for the law firm of Kummer, Kampfer, Bonner & Renshaw. Meanwhile, in February 1997, James F. Pico of the Pico & Mitchell law firm was substituted as Dr. Thalgott's attorney in place of Galatz.
Mehesan resolved his potential conflict of interest with the Browns, and in April 1997 the Browns formally associated Mehesan with the Gillock firm as their co-counsel. Firm partner Gerald Gillock was designated lead counsel for trial; however, Mehesan was extensively involved in preparing for trial, and attended or took all major depositions in the case.
In October 1997 this court issued its opinion in Ciaffone v. District Court, 113 Nev. 1165, 945 P.2d 950 (1997), which rejected a challenge by the Gillock firm to its disqualification in an unrelated wrongful death action based on its employment of a legal secretary who had previously worked on the wrongful death case for opposing counsel.
In May 1998 Gillock hired Smith as his personal secretary. Gillock screened Smith from the Brown case, but did not notify Dr. Thalgott or obtain a waiver from him.
Also in May 1998, the district court scheduled a jury trial to begin in the underlying case on March 9, 1999. In February 1999 Dr. Thalgott moved to continue the trial. The district court denied the motion, but subsequently reset the trial for May 12, 1999, to accommodate the court's schedule.
On May 7, 1999, Dr. Thalgott filed a "Motion to Disqualify Plaintiffs' Attorneys," based on Ciaffone and Smith's employment with the Gillock firm. In his supporting affidavit, Dr. Thalgott swore he first became aware that Smith had become Gill
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