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Brown v. Contemporary OB/GYN Associates3/27/2002
the arrangements had been made, the doctor would be there, and a specific date was given.
Now that turned out to be or at least it was represented to me to be a misunderstanding between counsel and that co-counsel had made a representation that he had no right to make.
He understood it one way, but it was not that way because in fact counsel for the plaintiffs had not been in touch with Dr. Osborne to make the arrangements, and I had made it very clear before any of this really came into full bloom that they were going to have to go with the deposition or lose the testimony of the doctor entirely.
As it turned out, they did go with the deposition, and so the fact that there was a subsequent representation, even if it may have offended any ethical standards, is of no import to me in connection with whether this trial was fair.
Plaintiffs were appropriately, in my opinion, relegated to the use of Dr. Osborne's testimony . . . .
Accordingly, the court ruled:
So I find there no grounds for the granting of a mistrial. . . . I deny that.
There was a motion for sanctions. I deny that. There is a motion for new trial, and I deny that. . . .
We shall include additional facts in our discussion.
DISCUSSION
I.
Appellants contend that the court erred in failing to grant either a mistrial or a new trial as a result of Armstrong's representation of Dr. Osborne in the Singleton case. They argue that Armstrong's representation of Dr. Osborne in the Singleton matter during the pendency of the Brown case, and his ex parte communications with Dr. Osborne, "deprived appellants of a fair trial," amounted to "witness tampering," and constituted "misconduct prejudicial to the administration of justice." Indeed, appellants assert that the relationship between Armstrong and Dr. Osborne "reeks of bias, impropriety and it stinks to the high heavens."
In particular, appellants maintain that, " y his unsupervised access to Osborne on more than two occasions, Armstrong violate Rule 8.4(d) of the Rules of Professional Conduct." Rule 8.4(d) provides: "It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." Appellants also contend that "Armstrong's attempts to mislead the Trial Court by stating that he was just hearing of Osborne's unavailability on March 22, 2000 is professional misconduct which violates Rule 8.4(c), which prohibits a lawyer's engagement in conduct involving dishonesty, fraud, deceit or misrepresentation." Therefore, appellants contend that the trial court erred in concluding that they were not prejudiced by Armstrong's relationship with Dr. Osborne.
Appellees raise several arguments in opposition to appellants' claims. They point out that Dr. Osborne's absence at trial was the result of the failure of appellants' counsel "to secure his attendance" by subpoena. Moreover, they maintain that appellants were not prejudiced because the court allowed them to offer the testimony of Dr. Osborne, adduced at the first trial in June 1999, which "preceded any relationship with Mr. Armstrong, thereby removing any possible taint or prejudice." In addition, appellees observe that appellants never objected to the use of Dr. Osborne's trial testimony of June 9, 1999.
At the outset, because appellants' challenge is raised in the context of the court's failure to grant a mistrial or a new trial, we pause to review the standards that govern our review.
"`"The declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of ju
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