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Shultz v. Hooks2/1/1994
ule 60(b)(6), M.R.Civ.P, which provides in pertinent part:
Rule 60(b). Mistakes — inadvertence — excusable neglect — newly discovered evidence — fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment. (Emphasis supplied.)
In the affidavit in support of Hooks' motion for relief from judgment, Hooks' counsel presented the argument that Judge Lympus could not preside over this malpractice action against Hooks because Judge Lympus had himself represented Shultz concerning the same matter on which the malpractice action was founded.
Judge Lympus represented Shultz as an attorney beginning in July of 1976, throughout part of 1977 and ended this representation sometime prior to December of 1979, when Shultz retained Hooks. During the time Judge Lympus represented Shultz, he attempted to locate information concerning Frank R. Shultz, Sr.'s guardianship of plaintiff and information on an accounting relating to that guardianship. Hooks subsequently represented Shultz in that same matter and that is the substance of the malpractice charges against Hooks.
We conclude that Judge Lympus was required to disqualify himself from presiding over this malpractice action, according to § 3-1-803, MCA, which provides in pertinent part:
3-1-803. Disqualification of judges — all courts.
DISQUALIFICATION OF JUDGES
This section shall, in its application, apply to all courts listed in section 3-1-101 except a court of impeachment in the state senate.
Any justice, judge, justice of the peace, municipal court judge or city court judge must not sit or act in any action or proceeding:
3. When he has been attorney or counsel in the action or proceeding for any party. . . .
The malpractice action here is a direct result of Hooks' representation of Shultz in the action for a guardianship accounting — an action in which Judge Lympus also represented Shultz. Although we conclude that Judge Lympus was required by § 3-1-803, MCA, to disqualify himself from presiding over the subsequent malpractice action against Hooks, we emphasize that there is absolutely nothing in the record to indicate any wrongdoing or unethical conduct on the part of Judge Lympus. Judge Lympus represented Shultz for a short period of time beginning nearly eighteen years ago and his representation did not progress to the point of filing an action against Shultz' guardian, but rather, merely involved preliminary investigation.
A judge is not prevented from presiding over matters which involve his or her prior clients if the action involves another matter. Although this malpractice action is technically a separate action from the underlying suit against Shultz' father relating to the guardianship, it arises from the legal representation in that lawsuit, albeit the representation by Hooks and not that of Judge Lympus.
We hold the District Court erred in not disqualifying himself in this case.
Reversed and remanded for substitution of another judge to rule on the merits of Hooks' Motion for Relief from Judgment and redetermine damages if that motion is again denied.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, GRAY, NELSON and TRIEWEILER concur.
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