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Brown v. Contemporary OB/GYN Associates3/27/2002
ngs of fact. Rule 8-131(c); see Gregg Neck Yacht Club, Inc. v. County Comm'rs of Kent County, 137 Md. App 732, 751-52 (2001). "The clearly erroneous standard requires an appellate court to consider the evidence produced at trial in a light most favorable to the prevailing party." Murphy v. 24th Street Cadillac Corp., 353 Md. 480, 497 (1999). "A trial court's findings are clearly erroneous when they are not supported by substantial evidence." Gregg Neck, 137 Md. App. at 752. In our view, the court's factual findings, including that Armstrong erected a Chinese wall, did not procure Dr. Osborne's absence, and did not induce him not to cooperate with appellants, were not clearly erroneous. We also completely agree with the court that Dr. Osborne's testimony from June 1999 was not tainted by Armstrong's representation of Dr. Osborne, because that representation did not begin until some six months later.
We are equally satisfied that the court was legally and factually correct in finding that Dr. Osborne was unavailable due to appellants' conduct. This Court has stated:
"When an expert to support the litigant's position is found, it behooves counsel to consult with the expert witness to review the facts, examine the record and discuss the theory of the claim or a defense of the client. At the same time, it is the responsibility of trial counsel to discuss fees for consultations, review of opposing experts' opinions and voluntary attendance at trial. If the expert is beyond the jurisdiction of the court to compel attendance at trial, it is the responsibility of the party offering the expert to ascertain the willingness and availability of the expert to appear at trial. The proponent of the expert must attempt to arrange a trial date at which the expert can appear. Since the expert is under the control of the offering litigant, due diligence must be used to secure the attendance of the witness at trial." Myers v. Estate of Alessi, 80 Md. App. 124, 140, cert. denied, 317 Md. 641 (1989) (emphasis added) (citation omitted).
With respect to the alleged conflict of interest, we note that in our review of the Maryland Rules of Professional Conduct, we have not found a provision that specifically governs the circumstances of this case. Rule 1.7 and Rule 1.8, for example, pertain to conflicts of interest, but do not apply here. To illustrate, Rule 1.7(a) generally bars an attorney from representing a client if the representation would be "adverse to another client." Rule 3.4(a), which prohibits a lawyer from "obstruct another party's access to evidence . . . counsel or assist another person to do any such act," would have general applicability, but the court expressly found no such conduct by Armstrong.
Even if Armstrong had a conflict of interest with regard to his representation of Dr. Osborne, a conflict alone does not compel us to reverse. Analogizing this case to a claim of conflict of interest by a defense attorney in a criminal case, we believe that a finding of conflict is but "the first step in determining" whether a mistrial or a new trial is warranted. See United States v. Schwarz, 2002 U.S. App. Lexis 3163 at *39 (2nd Cir., February 28, 2002)(concluding that defendant's trial attorney had conflict of interest in representing defendant in police brutality case, because he also represented police association; therefore, defendant was denied constitutional right to counsel). Indeed, the Second Circuit recently acknowledged that a new trial is warranted when the conflict "adversely affect " the lawyer's performance. Id. In much the same way, we have looked here for some evidence that the alleged conflict adversely affected the expert's performance. That issue never materiali
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