Cox v. Ryan

• Court: Superior Court of Maine
• Decided: November 30, 2006
• Docket: YORap-06-041
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-06-041 1 2. .'. I I

KIMBERLY A. COX,

Plaintiff

v. ORDER

ROBIN RYAN d / b / a DONALD L. GARBRECHT ELEMENTS OF STYLE, LAW LIBRARY

Defendant BEC n 8 W b

Before the Court is Robin Ryan's motion to compel withdrawal of

Kimberly Cox's attorney, Patrick Bedard, and lus law firm. Following hearing,

the Motion is Granted.

FACTUAL BACKGROUND

For several years, Kimberly Cox ("Cox") and Robin Ryan ("Ryan"), d / b / a

Elements of Style, have litigated a dispute regarding Ryan's interior design

services in Small Claims and District Court. The procedural history in h s case is

rather complex, but Cox obtained a judgment against Ryan for $4500 in Small

Claims Court, which is the maximum allowable recovery in that forum. Ryan

sought relief from the judgment in the District Court because Cox's alleged

damages exceeded the Small Claims Court's jurisdictional limit. The District

Court's finding that there was no subject matter jurisdiction in Small Claims

Court, and its dismissal of the action, is currently on appeal to this Court.

Presently pending is Ryan's motion to disqualify Cox's attorney, Patrick

Bedard ("Bedard"). Ryan alleges that she had a twenty-one minute telephone conversation with Attorney Bedard in April 2006, in which she discussed the

possibility of bringing suit against Cox regarding the same interior design

dispute. In August 2006, Attorney Bedard entered an appearance on behalf of

Cox in this appeal.' Attorney Bedard, through h s law partner, Attorney Bobrow,

states that he does not remember having the prior conversation with Ryan. He

does not deny that it occurred; instead, he simply states that he does not recall it.

If it did occur, Attorney Bedard claims that it would have been an initial

consultation and would not have addressed substantive issues involved in

Ryan's potential claim against Cox. Ryan claims that she sought legal advice and

fears that information she discussed with Attorney Bedard could ultimately be

used against her in this or future litigation.

DISCUSSION

1. Should Attornev Bedard Be Forced to Withdraw from T h s Action?

Attorney conduct is governed by the Maine Bar Rules. The Bar Rules are

enforced by the Maine Supreme Judicial Court, wluch has supervisory power

over attorneys. Casco Northern Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995)

(quoting Koch v. Koch Indus., 798 F. Supp. 1525, 1530 (D. Kan. 1992)). The party

moving to disqualify an attorney has the burden of proof and must demonstrate

more than "'mere speculation"' that an etlucs violation might occur, but "doubts

should be resolved in favor of disqualification." Id. at 859. The court, however,

must be vigilant to be sure that motions to compel disqualification of counsel are

not used to gain a merely tactical advantage. Id. The trial court applying the

Rules is to be accorded a deferential review. Id.

1 The parties have been represented by various counsel throughout this protracted process, and Ryan is now pro se. The Maine Bar Rules contain both a duty of loyalty and a duty of

confidentiality. A rule of particular applicability to this case is M. Bar. R.

3.4(a)(l),whch states that prior to undertalung representation of a client, "a

lawyer shall disclose to the prospective client any relationship or interest of the

lawyer or of any partner, associate or affiliated lawyer that might reasonably

give rise to a conflict of interest." A conflict of interest occurs where "there is a

substantial risk that the lawyer's representation of one client would be materially

and adversely affected by the lawyer's duties to another current client, to a

former client, or to a third person, or by the lawyer's own interests." M. Bar R.

3.4(b)(l) (emphasis added). Notwithstanding a conflict, representation may

proceed if a client has provided h s or her informed, written consent.

Here, Ryan claims that she had a lengthy phone conversation with

Attorney Bedard for the purpose of evaluating a potential claim against Ms. Cox,

whom Attorney Bedard subsequently decided to represent. She avers that the

decision to represent Cox, after having had a twenty-one minute consultation

with her, presents a conflict of interest. The parties dispute whether any

substantive issues were addressed in the alleged conversation. But, regardless of

what was actually discussed, continued involvement by Attorney Bedard risks

an appearance of impropriety.

Because the alleged conversation creates the appearance of a conflict

which may have a negative impact on Ms. Ryan, such doubts must be resolved in

favor of Attorney Bedard's disqualification. The Court does not explicitly find

that Attorney Bedard has violated the Bar Rules; indeed, he enjoys a strong

reputation for integrity. However, the appearance of a conflict of interest that would materially and adversely affect the parties' case(s) is too great to allow

Attorney Bedard to go forward with the representation.

Ms. Ryan's Motion to Disqualify is Granted and Ms. Cox must retain

alternate counsel or advise the clerk she will represent herself within 30 days.

/ Justice, Superior Court P a t r i c k S. Bedard, E s q . - PL David O t t , E s q . - DEF Robin Ryan ( p r o s e ) - DEF.