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Bernocchi v. Forcucci6/16/2005
equities of the parties. The hearing transcript reflects the trial court recognized the need for an evidentiary hearing, but scheduling conflicts prevented the hearing from taking place on the day the consent TRO expired. As a result, the trial court entered the interlocutory injunction in the absence of an evidentiary hearing at which the party seeking the relief would have to demonstrate entitlement thereto (see Treadwell v. Investment Franchises, 273 Ga. 517, 519 (543 SE2d 729) (2001) (burden is on the party seeking injunctive relief to demonstrate entitlement to the relief)), and the parties against whom relief was sought could present evidence showing the inequity in imposing interlocutory injunctive relief. Since the grant of injunctive relief occurred without a balancing of the equities and without evidentiary support, the entry of injunctive relief must be reversed for lack of evidentiary support. Kennedy v. W. M. Sheppard Lumber Co., supra, 261 Ga. 145, 146 (1).
2. Appellants next take issue with the trial court's order granting Forcucci's motion to disqualify Higgins & Dubner from simultaneous representation of appellant Bernocchi and the two corporate defendants. The trial court's written order contained no findings, but the hearing transcript reflects the trial court believed the corporations to have "a divergence of interests" from both Forcucci and Bernocchi, and granted the motion to disqualify because "there is a conflict on behalf of Mr. Bernocchi with whether or not the corporations' ownerships interest in ... designs and royalties would be protected."
" he right to counsel is an important interest which requires that any curtailment of the client's right to counsel of choice be approached with great caution." Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981). " isqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and ... inevitably cause delay." Reese v. Ga. Power Co., 191 Ga. App. 125 (2) (381 SE2d 110) (1989). " client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and 'may lose the benefit of its longtime counsel's specialized knowledge of its operations.'" Bergeron v. Mackler, 225 Conn. 391, 398 (623 A2d 489) (Conn. 1993). Because of the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly. Anderson Trucking Svc. v. Gibson, 884 S2d 1046, 1049 (Fla. App. 2004). See also Meehan v. Antonio, 2002 WL 31559712 (Conn. Super. 2002) (unpub. op.).
The simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by Rule 1.7 (b) of the Georgia Rules of Professional Conduct. Comment 7 to Rule 1.7 (b). Rule 1.7 permits a lawyer to represent a client notwithstanding a significant risk of material and adverse effect if each affected or former client consents, preferably in writing, to the representation after: (1) consultation with the lawyer, (2) having received in writing reasonable and adequate information about the material risks of the representation, and (3) having been given the opportunity to consult with independent counsel.
Client consent is not permissible if, among other things, the representation "involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients." Rule 1.7 (c) (3).
Citing Reese v. Ga. Power Co., supra, 191 Ga. App. 125, appellants contend Forcucci lacks standing to raise any conflict of interest issue with regard to appellants' counsel
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