Hodge v. Urfa-Sexton, LP

746 S.E.2d 142, 322 Ga. App. 534, 2013 Fulton County D. Rep. 2138, 2013 WL 3286913, 2013 Ga. App. LEXIS 555
CourtCourt of Appeals of Georgia
DecidedJuly 1, 2013
DocketA13A0056
StatusPublished
Cited by2 cases

This text of 746 S.E.2d 142 (Hodge v. Urfa-Sexton, LP) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodge v. Urfa-Sexton, LP, 746 S.E.2d 142, 322 Ga. App. 534, 2013 Fulton County D. Rep. 2138, 2013 WL 3286913, 2013 Ga. App. LEXIS 555 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

Appellants challenge the trial court’s denial of their motion to disqualify appellees’ counsel, Insley & Race, LLC. On appeal, appellants argue that the screening measures implemented by Insley & Race were not allowed under Georgia law, or in the alternative, that the screening measures implemented were inadequate to protect against a conflict of interest that arose when it was discovered that a paralegal working for its counsel’s firm had been formerly employed with appellants’ counsel’s firm. Finding no error, we affirm.

This action stems from the shooting death of Monica Renee Williams on January 3, 2010, at an apartment complex owned and operated by appellees. Appellants are Belinda Hodge, who is the administratrix of Williams’ estate, and Williams’ son, Tavarius NyQuan [535]*535Williams. Shortly after Williams’ death, appellants retained the law firm of Hanks Brookes, LLC, to pursue claims associated with Williams’ death.

Kristi Bussey was employed as a paralegal by Hanks Brookes at the time of Williams’ death and at the time the law firm was retained by Hodge. While working at Hanks Brookes, Bussey assisted in the investigation of Williams’ death, communicated with appellants regarding the case, and participated in meetings regarding the case, including those discussing the investigation, counsel’s thoughts regarding the case, and proposed strategy. Bussey even assisted Hodge in becoming appointed administratrix of Williams’ estate and guardian of Williams’ son. Additionally, Bussey has personally known Hodge for approximately ten years and was friends with Williams and her son.

In March 2010, the law firm of Insley & Race, LLC, was retained by the Scottsdale Insurance Company to represent appellee URFASexton, LP, in connection with the instant suit. Insley & Race then proceeded to conduct a pre-suit investigation and evaluation of the incident. On March 15, 2011, approximately one year after Insley & Race was retained and six months after the conclusion of the pre-suit investigation, Bussey interviewed for a paralegal position at Insley & Race. Prior to hiring Bussey, the hiring partner at Insley & Race called and obtained an employment reference for Bussey from a partner at Hanks Brookes, who did not disclose any possible conflict of interest. At the time Bussey was hired and came to work at Insley & Race, she was not aware that the firm had been involved in a pre-suit investigation of the Williams matter. Accordingly, no screening measures were implemented to shield her from disclosing any knowledge she possessed regarding the case at that time.

On October 5, 2011, Bussey became aware of the conflict of interest and brought it to the attention of the partners at Insley & Race. Insley & Race then implemented screening measures, including restricting her access to the law firm’s electronic file and the physical file and instructing her not to have any discussions regarding the case with anyone at the Arm. Bussey provided affidavit testimony that she had never disclosed nor discussed any confidential information obtained about the Williams case during her employment with Hanks Brookes to any person at Insley & Race.

Appellants filed their complaint in this case on November 7, 2011. On December 6, 2011, two months after becoming aware of the conflict in interest, defense counsel disclosed Bussey’s employment at their firm to Hanks Brookes. On January 20, 2012, appellants filed a motion to disqualify defense counsel, arguing that Bussey’s employment with defense counsel was a conflict of interest that required [536]*536disqualification of the entire firm. On June 21, 2012, the trial court denied appellants’ motion to disqualify defense counsel, finding that defense counsel had “implemented appropriate and effective screening measures to protect against any disclosure of confidential information.” Appellants obtained a certificate of immediate review of that order and filed an application for interlocutory review in this Court, which was granted.

1. In their first enumeration of error, appellants assert that the Georgia Rules of Professional Conduct do not allow screening to overcome a clear conflict of interest, and thus, the trial court erred in denying their motion to disqualify defense counsel. We disagree.

On appeal, we review a trial court’s ruling on a motion to disqualify counsel under an abuse of discretion standard. Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 22 (694 SE2d 346) (2010).

This Court has not previously addressed the standards governing a disqualification motion based on the hiring of a nonlawyer employee. With respect to lawyers, our Supreme Court has adopted a standard stating that a conflict of interest arises whenever counsel undertakes representation of an interest that is adverse to that of a former client, as long as the matters embraced in the pending suit are “substantially related” to the factual matters involved in the previous suit. See Crawford W. Long Mem. Hosp. of Emory Univ. v. Yerby, 258 Ga. 720, 721 (1) (373 SE2d 749) (1988). See also Rules 1.9 and 1.10 of the Georgia Rules of Professional Conduct. This strict rule is based on conclusive presumption that confidences and secrets were imparted to the attorney during the prior representation and that such representation would “create [ ] an impermissible appearance of impropriety.” See Yerby at 722 (3).

Appellants argue that the standards applied to disqualify lawyers should also apply to paralegals. Thus, appellants urge that the entire firm of Insley & Race shouldbe automatically disqualified from the present case because of the confidences Bussey obtained while working at Hanks Brookes.

We agree that a paralegal who has actually worked on a case must be subject to the conclusive presumption that confidences and secrets were imparted during the course of the paralegal’s work on the case. See Phoenix Founders, Inc. v. Marshall, 887 SW2d 831, 834 (Tex. 1994). “This presumption serves to prevent the moving party from being forced to reveal the very confidences sought to be protected.” (Citation omitted.) Id. We disagree, however, with appellants’ argument that paralegals should be subject to the same standards applicable to lawyers under the Georgia Rules of Professional Conduct, and therefore, they should conclusively be presumed to share confidential Information with members of their firms. See Georgia [537]*537Rule of Professional Conduct 1.10.1 Rule 5.3 (a) of the Georgia Rules of Professional Conduct, governing responsibilities regarding non-lawyer assistants, requires a lawyer having direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. “Thus, to the extent that the [Georgia Rules of Professional Conduct] prohibit a lawyer from revealing confidential information . . . they also prohibit a supervising lawyer from ordering, encouraging, or permitting a nonlawyer to reveal such information.” Phoenix Founders, Inc., supra.

Citing to the Alabama Rules of Professional Conduct and an advisory opinion, Alabama State Bar, Formal Opinion 2002-01,2 the appellants urge us to adopt the approach endorsed by some jurisdictions, which prohibits using screening measures to prevent a non-lawyer’s conflict of interest from disqualifying an entire firm.

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Related

Hodge, Admrx. v. Urfa-Sexton, Lp
758 S.E.2d 314 (Supreme Court of Georgia, 2014)

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746 S.E.2d 142, 322 Ga. App. 534, 2013 Fulton County D. Rep. 2138, 2013 WL 3286913, 2013 Ga. App. LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodge-v-urfa-sexton-lp-gactapp-2013.