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Reed v. Hoosier Health Systems4/13/2005
a client if he knows or should know in the exercise of reasonable care and diligence that any one of them practicing alone would be prohibited from doings so by [Rule 1.7(a)].
Ind. Prof. Cond. R. 1.10(a) (2004); see also Bethlehem Steel Corp. v. Sercon Corp., 654 N.E.2d 1163, 1170 (Ind. Ct. App. 1995), trans. denied (" he duty of loyalty to a client extends to all members of a firm[.]").
IRPC 1.7(a) is violated in the case at bar because (1) Reed's Motion to Reinstate litigation specifically names Hoosier Health and Hoosier Living as defendants, (2) Tabbert Hahn represents Hoosier Health and Hoosier Living in ongoing litigation, and (3) there is no evidence of consent.
A. Relatedness
Reed contends IRPC 1.7(a) does not necessitate disqualification because Tabbert Hahn's medical malpractice cases are unrelated to the case at bar. Br. of Appellant at 14. However, the relatedness of ongoing cases is not a relevant exception to IRPC 1.7(a). See Ind. Prof. Cond. R. 1.7(a) cmt. (" lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated."); Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering ยง 1.7:203 at 233 (a lawyer should not sue a client on behalf of another present client, even if the lawyer represents the first client in a wholly unrelated matter).
Reed contends IRPC 1.7(a)'s use of "directly" indicates there must be some relation between the suits before disqualification is proper. Reply Br. of Appellant at 8. However, IRPC 1.7(a)'s use of "directly" refers to the adverse effect to the client not the attorney-client relationship. Ind. Prof. Cond. R. 1.7(a). The attorney-client relationship is addressed in IRPC 1.7(a)(1), which does not contain the term "direct." Id. Hoosier Health and Hoosier Living, as named defendants, are adversely affected.
B. Withdrawal
Reed contends there is no conflict because Tabbert Hahn offered to withdraw its representation of Hoosier Health and Hoosier Living. Br. of Appellant at 14 n.3. However, conflicts may not be avoided by withdrawal.
Universal City Studios, Inc. v. Reimerdes states: It is . . . established law that an attorney cannot avoid disqualification . . . merely by `firing' the disfavored client . . . and transforming a continuing relationship to a former relationship by way of client abandonment. Indeed, the offense inherent in taking on the conflicting representation is compounded by seeking to `fire' the client in pursuit of the attorney's interest in taking on a new, more attractive, representation. If . . . the act of suing one's client is a dramatic form of disloyalty, what might be said of trying to drop the first client in an effort to free the attorney to pursue his or her self-interest in taking on a newer and more attractive professional engagement?
98 F. Supp.2d 449, 453 (S.D. N.Y. 2000) (internal citations omitted).
C. Subrogation
Reed cites Commercial Union Insurance Co. v. Marco International Corporation, 75 F. Supp.2d 108 (S.D. N.Y. 1999), for the proposition that there is no attorney-client relationship under IRPC 1.7(a) where a party (1) did not engage the attorney, (2) has no pecuniary interest in the action, and (3) has no control over settlement of the case and claims the facts of this case satisfy this standard. Br. of Appellant at 15. However, Commercial Union involved subrogation rather than indemnification. 75 F. Supp.2d at 111. Tabbert Hahn is not pursuing a subrogation claim on behalf of OHIC; it is defending Hoosier Health and Hoosier Living in a disputed claim.
Reed contends subrogation is
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