Seeco, Inc. v. Hales

969 S.W.2d 193, 334 Ark. 134, 1998 Ark. LEXIS 440
Supreme Court of Arkansas·Decided July 9, 1998·No. 98-670·Published·Cited by 25 cases

Opinion

Robert L. Brown, Justice.

This case involves the disqualification of J. Michael Fitzhugh as counsel for appellants Seeco, Inc., Southwestern Energy Company, and Arkansas Western Gas Company (Seeco). Trial in this matter is currently set for September 28, 1998. On June 10, 1998, this court granted the motion of appellees Allen Hales, et al. (Hales) to expedite Seeco’s appeal on various matters, and we temporarily stayed the order of the trial court disqualifying Mr. Fitzhugh from the practice of law in Arkansas. Seeco raises four issues in its interlocutory appeal: (1) the trial judge erred in not recusing in this case because his political opponent, Mr. Fitzhugh, was appearing before him as counsel for Seeco; (2) the trial judge erred in disqualifying Mr. Fitzhugh from the practice of law in this state; (3) the trial judge correctly determined that the conduct of Seeco’s counsel, Thomas Mars and Mr. Fitzhugh, was not improper or unethical; and (4) the trial judge erred in finding that Mr. Mars violated Rule 11 of the Arkansas Rules of Civil Procedure.

Our jurisdiction to hear interlocutory appeals limits us to the issue of Mr. Fitzhugh’s disqualification by the trial judge. Ark. R. App. P.—Civ. 2 (a) 8. We affirm the disqualification of Mr. Fitzhugh but modify the trial judge’s order to limit the disqualification only to participation as counsel in the present case.

In Seeco, Inc. v. Hales , 330 Ark. 402, 954 S.W.2d 234 (1997), this court affirmed the order of Judge Don Langston, certifying a class of more than 3,000 royalty owners, who sought compensatory and punitive damages against Seeco and its subsidiary companies. The amount claimed by the royalty owners exceeds $58,450,000 due to the alleged underpayment of royalties. Following this court’s order of remand, Judge Langston entered a scheduling order on February 3, 1998, that called for the completion of discovery by July 15, 1998, and set the trial date for September 28, 1998.

On March 3, 1998, Michael Fitzhugh announced his candidacy for the circuit judgeship currently held by Judge Langston. On March 10, 1998, Mr. Fitzhugh entered an appearance as local counsel for the defendants. 1 Prior to that time, Mr. Fitzhugh had not represented Seeco in this matter. On March 20, 1998, Mr. Fitzhugh officially filed for the judicial position occupied by Judge Langston. On March 27, 1998, Judge Langston wrote to counsel for the parties and advised that he had learned that Mr. Fitzhugh had contacted the judge’s case coordinator and suggested the judge’s recusal because of his judicial candidacy. Judge Langston informed counsel by letter that although he had recused in other cases where Mr. Fitzhugh was the only attorney for a particular party due to his candidacy, he was not going to recuse in the present case because (1) he had presided over the case for approximately two years, and (2) Mr. Fitzhugh was not the lead attorney for any of the Seeco defendants.

On April 7, 1998, Seeco filed a motion forjudge Langston’s recusal and argued that Canon 3E(1) of the Arkansas Code of Judicial Conduct mandated his recusal because of the candidacy of Mr. Fitzhugh for his judgeship. In an April 28, 1998 response, Hales contended that Judge Langston should not recuse because the addition of Mr. Fitzhugh as local counsel for Seeco was a contrivance by Seeco to create a conflict to force the judge’s recusal. That same day, Hales also moved for the disqualification of both Mr. Fitzhugh and Mr. Mars based on a claim that their activities were a forbidden attempt to “judge shop,” which was prejudicial to the administration of justice in violation of the Arkansas Rules of Professional Conduct.

Judge Langston conducted a hearing on the motions on June 1, 1998, following which he delivered a written opinion from the bench. He entered an order on June 2, 1998, denying Seeco’s motion that he recuse, denying Hales’s motion to disqualify Mr. Mars as counsel, and granting Hales’s motion to disqualify Mr. Fitzhugh.

The sole issue before this court in this interlocutory appeal is the disqualification of Mr. Fitzhugh as Seeco’s counsel in the present case and from practicing law in this state generally during his judicial candidacy. The decision to disqualify an attorney is reviewed under the abuse-of-discretion standard. Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). An abuse of discretion may be manifested by an erroneous interpretation of the law. Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297 (1997); Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995).

In his written order delivered from the bench on June 1, 1998, Judge Langston listed pertinent facts leading up to his decision to disqualify Mr. Fitzhugh as Seeco’s local counsel. He specifically referred to the sequence of events, which included Mr. Fitzhugh’s announcement of his candidacy for the circuit judgeship on March 3, 1998, and his entry of appearance on March 10, 1998, as counsel of record for Seeco. Judge Langston then granted Hales’s motion to disqualify Mr. Fitzhugh on the basis that Rule 8.2 of the Rules of Professional Conduct requires that a lawyer who is a candidate for judicial office comply with the Code of Judicial Conduct, and Canon 4(G) of that Code provides that a judge shall not practice law or appear as counsel in any court in this state. According to Judge Langston’s rationale, Mr. Fitzhugh, as a judicial candidate, was the equivalent of a judge and, thus, was precluded from practicing law in the state pending his candidacy.

We believe that the judge erred in the reason given for disqualifying Mr. Fitzhugh. In addition, the scope of his order, which disqualified Mr. Fitzhugh from the practice of law throughout Arkansas during his quest for the judgeship, was too broad. And, finally, the judge was wrong in refusing to assess whether Mr. Fitzhugh’s conduct violated the Arkansas Rules of Professional Conduct and in deferring such matters instead to the Professional Conduct Committee.

Taking the last point first, we recently stated that the Rules of Professional Conduct are applicable in disqualification proceedings. Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998), citing Berry v. Saline Memorial Hosp., 321 Ark. 588, 906 S.W.2d 297 (1995); Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994); Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990); First American Carriers, Inc. v. Kroger, 302 Ark. 86, 787 S.W.2d 669 (1990). In Norman, the trial judge similarly refrained from considering the Rules of Professional Conduct in a case involving disqualification of counsel.

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Seeco, Inc. v. Hales, 969 S.W.2d 193, 334 Ark. 134, 1998 Ark. LEXIS 440 (Ark. 1998).

969 S.W.2d 193 (Seeco, Inc. v. Hales) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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