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Burke v. Lewis7/12/2005
Original Proceeding in this Court
In addressing this petition for extraordinary relief, we must determine whether a district court may, without express authorization by statute or rule, appropriately appoint counsel for an absent, non-indigent civil litigant. We conclude that, in this case, the district court operated within the bounds of its discretion when it ordered such an appointment. This conclusion is based upon our determination that a court's inherent power to appoint counsel is not limited to situations involving indigency and our decision that, despite ethical concerns raised by the litigant's absence, the appointed attorney's good-faith compliance with the appointment order will not constitute a violation of the rules of professional conduct.
BACKGROUND
Athan Montgomery suffered serious injuries at the time of his birth, including paralysis and brain damage, as the result of a botched forceps delivery performed by Dr. Gregory Drezga. Heidi Judd, as the parent and guardian of Montgomery, subsequently filed a medical malpractice suit against Drezga on Montgomery's behalf, ultimately obtaining a jury award of nearly $2.3 million.
Although the exact timing of his departure is uncertain, Drezga apparently disappeared from Utah soon after Montgomery's birth, but before the malpractice suit was filed against him. Despite Drezga's absence, The Doctors' Company ("TDC"), Drezga's malpractice insurer, hired counsel for Drezga and prepared to mount a defense against Judd's malpractice claim.
However, before trial commenced in the malpractice action, TDC filed a separate action against Drezga, seeking a declaration that TDC had no duty to defend Drezga in the malpractice suit because Drezga had failed to comply with his contractual duty to cooperate in his own defense. TDC named Judd as a co-defendant in the declaratory action, but asserted no separate claims against Judd.
After uncovering documentation indicating that Drezga may have omitted material information in his application for insurance, TDC amended its complaint in the declaratory action, seeking retroactive invalidation of the insurance contract. Although TDC received the district court's permission to serve the initial complaint by publication, service of the amended complaint was initially accepted by David Slagle, the attorney representing Drezga in the malpractice action. However, Slagle subsequently sent a letter to the district court, expressing his belief that he could not properly accept service on behalf of Drezga and purporting to withdraw his acceptance of service. While concerns about the effectiveness of service lingered in the background, TDC pursued its new legal theory, arguing in a summary judgment motion that the district court should declare the insurance contract invalid as a matter of law.
Judd, no doubt realizing that a retroactive invalidation of Drezga's malpractice insurance policy would effectively preclude the possibility of collecting any judgment awarded in the malpractice action, successfully opposed TDC's summary judgment motion. However, when TDC subsequently renewed its earlier request for a default judgment against Drezga, citing his failure to appear in the declaratory action, Judd filed a motion asking the court to appoint counsel to represent Drezga's interests in the case.
For over two years, Judd and TDC argued over the propriety of appointing counsel for Drezga. TDC contended that any attorney undertaking representation of Drezga would necessarily violate the Utah Rules of Professional Conduct because no lawyer-client relationship can be formed with an absent, incommunicado, individual and the ap
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