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Bernocchi v. Forcucci6/16/2005
since Forcucci does not have an attorney-client relationship with appellants' counsel. In Reese, at 127, the Court of Appeals held that the plaintiff lacked standing to assert opposing counsel had a conflict of interest in representing simultaneously a corporate defendant and an employee of that corporation in a personal injury action because that objection "'is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client.'" See also Piedmont Hosp. v. Reddick, 267 Ga. App. 68 (7) (c) (599 SE2d 20) (2004); Johnson v. Prime Bank, 219 Ga. App. 29 (464 SE2d 24) (1995). On June 12, 2000, however, this Court issued an order which adopted the aforementioned Georgia Rules of Professional Conduct in place of the Canon of Ethics, effective January 1, 2001.
The Rules prescribe terms for resolving conflict "among a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person[,]" and are "rules of reason ... designed to provide guidance to lawyers." Ga. Rules of Professional Conduct, Preamble, Pars. 8, 13, 18. Each Rule is accompanied by a Comment which "explains and illustrates the meaning and purpose of the Rule" and is intended to serve as a guide to interpretation. Id., Par. 21. Because the representation at issue took place after the effective date of the Georgia Rules of Professional Conduct, and because "it would be injudicious for this court to employ a rule of disqualification that could not be reconciled with the ... Rules of Professional Conduct," the Rules are relevant to the case at bar. Ayres v. Canales, 790 SW2d 554, 557 (Tex. 1990).
Comment 15 to Rule 1.7 places the primary responsibility for resolving questions of conflict of interest on the lawyer undertaking the representation. A court may raise the question when, in litigation, there is reason to infer the lawyer has neglected the responsibility, and opposing counsel may raise the question " here the conflict is such as clearly to call into question the fair or efficient administration of justice...." Id. The Comment goes on to advise that an objection from opposing counsel "should be viewed with caution ... for it can be misused as a technique of harassment." In order for counsel to have standing to raise the issue of an opposing lawyer having a conflict of interest in simultaneously representing multiple plaintiffs or defendants, there must be a violation of the rules which is sufficiently severe to call in question the fair and efficient administration of justice (In re Robinson, 90 SW3d 921, 925 (Tex. App. 2002)), and opposing counsel must provide substantiation. Meehan v. Antonio, supra. See also Anderson Trucking Svc. v. Gibson, supra, 884 S2d 1046.
The trial court did not apply this standard to determine whether opposing counsel had standing to inquire whether Higgins & Dubner had a conflict of interest in representing Bernocchi and the two corporate defendants simultaneously. Accordingly, we vacate the order disqualifying counsel from simultaneous representation of the three defendants and remand the case to the trial court for consideration of the motion pursuant to the standard set forth in Rule 1.7 (b) and the accompanying Comments.
Judgment reversed and case remanded with direction. All the Justices concur.
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