Bernocchi v. Forcucci

279 Ga. 460, 614 S.E.2d 775 (2005) (some internal citations omitted)

BENHAM, Justice.

In this appeal, we are called upon to review the propriety of the trial court's issuance of injunctive relief and the trial court's disqualification of counsel from simultaneously representing the corporate appellants and the individual appellant.


          “[T]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 S.E.2d 607 (1981). “[D]isqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and ... inevitably cause[s] delay.” Reese v. Ga. Power Co., 191 Ga.App. 125(2), 381 S.E.2d 110 (1989). “[A] 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 A.2d 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.

          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).



... On June 12, 2000 ... this Court issued an order which adopted the afore-mentioned 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 Prof. Conduct, Preamble, Par. 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.

          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 “[w]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, and opposing counsel must provide substantiation.