KEVIN JAGGERS AND BOLUS, JAGGERS AND MAYFIELD, PLLC, AND THOMAS E. CLAY AND THOMAS E. CLAY, P.S.C. V. HON. JAMES M. SHAKE, JUDGE, JEFFERSON CIRCUIT COURT, SECOND DIVISION, AND PAULA PAYTON AND MARY BLAKELY
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RENDERED: FEBRUARY 22,200l
TO BE PUBLISHED
1999-SC-1157-MR
KEVIN JAGGERS AND BOLUS, JAGGERS
AND MAYFIELD, PLLC, AND THOMAS E.
CLAY AND THOMAS E. CLAY, P.S.C.
V.
APPELLANTS
ON REVIEW FROM THE COURT OF APPEALS
NO. 1999~CA-2193
HON. JAMES M. SHAKE, JUDGE,
JEFFERSON CIRCUIT COURT, SECOND
DIVISION, AND PAULA PAYTON AND
MARY BLAKELY
APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
Pursuant to CR 76.36, Appellants appeal from an order of the Court of
Appeals denying their motion for a writ of mandamus. Appellants sought to compel the
trial judge to disqualify counsel for Appellees, James T. Mitchell, based upon an alleged
conflict of interest. For the following reasons, the judgment of the Court of Appeals is
affirmed.
The underlying action commenced with a complaint filed by Appellees and
Real Parties in Interest, Paula Payton and Mary Blakely, against Appellant, Thomas E.
Clay, and Lacey Smith for alleged professional negligence in the legal representation
afforded them in a case styled Holland Income Tax, Inc. v. Paula Pavton and Man/
Blakelv. and Paula and Mary. Inc., No. 93-Cl-00395, Bullitt Circuit Court. Payton and
Blakely are represented by James T. Mitchell of the law firm of Conliffe, Sandmann &
Sullivan. Another attorney at that law firm, Sally Lambert, represents Kevin Jaggers
and his former partnership of Bolus, Jaggers, and Mayfield, P.L.L.C., in a different
professional negligence lawsuit.
The reason Appellants seek disqualification is that Jaggers had previously
worked for Clay as a salaried attorney and had worked on litigation involving Holland
Income Tax, Inc. and several of its former franchisees, including Payton and Blakely,
parties who are now adverse to Clay. Jaggers, however, did not work directly on
Payton and Blakely’s case while he was employed by Clay. After Jaggers left Clay’s
employ, however, he prepared a motion for discretionary review to this Court from the
Bullitt Circuit Court case that is the basis for the Payton/Blakely negligence action
against Clay, and Jaggers also advised Blakely on the phone that this motion had been
filed.
Contending that Payton’s and Blakely’s interests were adverse to Jaggers’
interests, Appellants filed a motion with the trial court seeking to disqualify Mitchell
based upon the general prohibition against conflicts of interest, SCR 3.130(1.7), and
the rule governing imputed disqualification, SCR 3.130(1 .lO). The trial court denied the
motion, reasoning that disqualification was not warranted because the two professional
negligence cases had no common issues or parties and that no confidential information
about the Blakely/Payton case had passed between Appellants and Mitchell or his law
firm.
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Appellants then sought a writ of mandamus in the Court of Appeals,
seeking to compel the trial court to disqualify Mitchell. In the motion, Appellants alleged
that they would suffer injury because Clay would call Jaggers as a witness in the action
against Clay and that Jaggers would be subject to cross-examination by Mitchell, an
associate of an attorney representing him in another action. Essentially, Appellants
contend that Jaggers’ testimony for his former professional associate Clay will place
him in conflict with his own attorneys in other litigation, Lambert and Mitchell. Citing
Carlsen v. Thomas,’ the Court of Appeals denied the requested relief, reasoning that
Jaggers’ position as a potential witness* did not constitute a showing of immediate and
irreparable harm necessary for the issuance of a writ of mandamus. In so holding, the
Court of Appeals noted that since the trial court’s decision was interlocutory, Appellants
were not foreclosed from moving the trial court to revisit the disqualification issue in the
future should subsequent events make it appropriate to do so.
SCR 3.130(1.7), the general rule prohibiting representation that entails a
conflict of interest, provides:
(a) A lawyer shall not represent a client if the representation
of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will
not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation
of that client may be materially limited by the lawyer’s
responsibilities to another client or to a. third person, or by
the lawyer’s own interests, unless:
(1) The lawyer reasonably believes the representation will
not be adversely affected; and
(2) The client consents after consultation.
‘159 F.R.D. 661 (E.D. Ky. 1994).
*This Court assumes that Jaggers will be called as a witness for Clay and
will render this opinion accordingly.
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(emphasis added). SCR 3.130( 1. lo), the imputed disqualification rule, provides in
relevant part,
(a) While lawyers are associated in a firm, none of them
shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rule[]
1.7.
Thus, for purposes of Rule 1 .I 0, Mitchell, an associate of Lambert, is considered to
represent Jaggers. He also represents Payton and Blakely in this case against Clay
and Smith, and Mitchell owes a duty of loyalty to both sets of clients.
In applying Rule 1.7 to the instant case, the threshold issue is whether
Mitchell’s representation of Payton and Blakely is “directly adverse” to Lambert’s
representation of Jaggers as is required for disqualification under section (a) of the rule.
In elucidating the meaning of “directly adverse,” the Commentary to Rule 1.7 explains,
As a general proposition, loyalty to a client prohibits undertaking
representation directly adverse to that client without that client’s consent. .
Thus, a lawyer ordinarily may not act as advocate against a person the
iawyer represents in some other matter, even if it is wholly unrelated. On
the other hand, simultaneous representation in unrelated matters of
clients whose interests are only generally adverse, such as competing
economic enterprises, does not require consent of the respective clients.
Accordingly, Mitchell, in his representation of Payton and Blakely, is not acting as an
advocate against Jaggers. Although Jaggers was associated with Clay during the time
of the alleged professional negligence by Clay, and Jaggers will testify to subsequent
events, he is not a party to that action. Thus, Mitchell’s representation of Payton and
Blakely is not directly adverse to that of Jaggers, and disqualification is not required
under section (a) of Rule 1.7.
Disqualification is likewise not required by section (b) of Rule 1.7. Section
(b) prohibits representation if it will be “materially limited” by the lawyer’s responsibilities
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to other persons. Here, the two legal malpractice lawsuits are completely unrelated
matters. Appellants have failed to show that Lambert’s representation of Jaggers in the
legal malpractice suit against him will be hindered by Mitchell’s representation of Payton
and Blakely in their lawsuit against Clay.
Appellants further contend that even absent an actual conflict of interest,
Mitchell should be disqualified because his representation of Clay brings about an
impermissible appearance of impropriety. This Court announced its adherence to the
*
‘appearance of impropriety’ standard as a separate reason for disqualification in Lovell
v. Winchester.3 In Lovell, an attorney consulted with a potential client regarding a claim
and retained documents relating to the claim. The attorney subsequently declined to
represent the client and returned the documents. Sometime later, the attorney took on
representation of the opposing side, and the first party sought to disqualify the attorney
based upon a conflict of interest. Although the attorney had returned the relevant
documents and claimed that he could not remember the initial consultation with the first
party, this Court held that there was an appearance of impropriety and disqualified the
attorney from the case.
No similar circumstance exists here. Payton and Blakely have expressly
waived any conflict and the mere fact of two attorneys in the same firm representing a
party on the one hand and being adverse to that person as a witness in another case
on the other hand is too attenuated to create an appearance of impropriety.
For the foregoing reasons, the judgment of the Court of Appeals is
affirmed.
3Ky., 941 S.W.2d 466 (1997).
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Cooper, Graves, Johnstone, Keller, Stumbo and Wintersheimer, JJ.,
concur.
FOR APPELLANTS:
John T. Ballantine
Stephen F. Schuster
OGDEN, NEWELL & WELCH
1700 Citizens Plaza
500 West Jefferson Street
Louisville, KY 40202
FOR APPELLEES:
Hon. James M. Shake
Judge, Fayette Circuit Court
Jefferson County Judicial Center
700 West Jefferson Street
Louisville, KY 40202
James T. Mitchell
CONFLIFFE, SANDMANN & SULLIVAN
325 West Main Street, Suite 2000
Louisville, KY 40202
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