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Reed v. Hoosier Health Systems4/13/2005
sufficiently analogous to indemnification because OHIC is really defending the claims and is financially responsible if its defense is unsuccessful. However, even assuming it is impossible for Hoosier Health and Hoosier Living to be held financially responsible for the claims represented by Tabbert Hahn, there are more consequences to losing a suit than simple pecuniary loss.
Moreover, Reed's position is contrary to our supreme court's ruling in Wills, which stated:
Ultimately all attorneys are bound by their professional obligations to place the interests of their policyholder- client ahead of their own if pressure from an employer or a co-client insurer conflicts with those of the policyholder.
717 N.E.2d at 163 (emphasis added).
D. The substantial relationship test
In his Reply Brief, Reed urges this court to apply the "substantial relationship" test of Gen-Cor, LLC v. Buckeye Corrugated, Inc., 111 F. Supp.2d 1049 (S.D. Ind. 2000). Reply Br. of Appellant at 8-9. Reed does not cite Gen-Cor or assert entitlement to the substantial relationship test in his Appellant's Brief.
Appellate Rule 46(C) states, "no new issues shall be raised in the reply brief." Ind. Appellate Rule 46(C) (2004). Reed's decision to raise this issue in his Reply Brief-much like his decision to present a 154-page response to an opponent on the morning of a hearing-shields his argument from the scrutiny of his opponent and undermines the adversarial process. Accordingly, Reed has waived this issue for appellate review.
Waiver notwithstanding, we reject Reed's argument. Gen-Cor concluded the conflicted law firm violated IRPC 1.7(a) but disqualification was not an appropriate "remedy" under the substantial relationship test. 111 F. Supp.2d at 1053.
The substantial relationship test states: First, the trial judge must make a factual reconstruction of the prior legal representation. Second, it must be determined whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing clients in those matters. Third, it must be determined whether that information is relevant to the issues raised in the litigation pending against a former client.
Gen-Cor, 111 F. Supp.2d at 1054 (emphasis added).
The substantial relationship test is inapplicable to the case at bar. Gen-Cor speaks to conflicts involving former representation. Also, the application of the substantial relationship test to IRPC 1.7(a) would seem to violate the rule's clear language. IRPC 1.7(a) states, "a lawyer shall not represent a client;" it does not state "a lawyer shall represent a client unless . . ."
Gen-Cor also concluded disqualification was not necessarily the "remedy" for a violation of IRPC 1.7(a). However, IRPC 1.7(a)'s use of "shall not" indicates the court need not determine the remedy for an on- going violation. The express language of prohibition in IRPC 1.7(a) precludes the application of the substantial relationship test.
Conclusion
The trial court did not abuse its discretion when it dismissed
Reed's attorneys.
Affirmed.
DARDEN, J., concurs.
BARNES, J., concurs in result with opinion.
BARNES, Judge, concurring in result with separate opinion
Although I concur in result, I disagree with the majority's analysis of Tabbert Hahn's obligation to withdraw. The majority states that conflicts may not be avoided by withdrawal. I agree that there is the potential danger of lawyers dropping a client "`like a hot potato'" in favor of a more desirable client.
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