Doherty v. Hon. Nothwehr/O'Donnell

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SHARON ARTHUR DOHERTY, an Arizona ) resident, ) ) ) Petitioner, ) ) v. ) THE HONORABLE RICHARD L. ) NOTHWEHR, Commissioner of the ) ) SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of ) MARICOPA, ) ) Respondent Commissioner, ) ) McCABE O DONNELL, P.A., an ) Arizona law firm, ) ) Real Party in Interest. ) ) No. DIVISION ONE FILED: 07/28/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-SA 11-0150 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Special Action from the Superior Court in Maricopa County Cause No. PB 2008-000345 The Honorable Richard L. Nothwehr, Commissioner JURISDICTION ACCEPTED; RELIEF DENIED Knapp & Roberts, P.C. By David L. Abney Scottsdale and Bivens & Associates, P.L.L.C. By Kelly J. McDonald Attorneys for Petitioner Scottsdale McCabe O Donnell, P.A. By Joseph I. McCabe Clifford J. Roth Attorneys for Respondents Real Parties in Interest Phoenix J O H N S E N, Judge ¶1 Petitioner Doherty. Sharon Doherty is the widow of John The Personal Representative of Mr. Doherty s estate and the Trustee of the John L. Doherty Living Trust have sued Petitioner, alleging financial exploitation and other claims. This special action petition asks that we vacate the superior court s order denying Petitioner s motion to disqualify McCabe O Donnell, P.A., the law firm that represents the Personal Representative and the Trustee in the action against Petitioner. ¶2 We accept special jurisdiction of the petition because the Petitioner has no other equally plain, adequate and speedy remedy from the order. See State ex rel. Romley v. Superior Court In and For County of Maricopa, 181 Ariz. 378, 380, 891 P.2d 246, 248 (App. 1995); Smart Indus. Corp., Mfg. v. Superior Court In and For County of Yuma, 179 Ariz. 141, 142, 876 P.2d 1176, 1177 (App. 1994). ¶3 Petitioner s motion to disqualify alleged the McCabe firm had represented her in the same or substantially similar 2 matters and therefore Representative and the could not Trustee in represent their the claims Personal against her, pursuant to ER 1.9(a) of Rule 42 of the Rules of the Arizona Supreme Court. See Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989). ¶4 An attorney-client relationship may exist without a retainer agreement and without payment of attorney s fees, and the existence of such parties conduct. a relationship may be implied by the See In re Petrie, 154 Ariz. 295, 299, 742 P.2d 796, 800 (1987); Foulke, 162 Ariz. at 520, 784 P.2d at 726. The existence of an attorney-client relationship may be shown by evidence that the would-be client sought and received advice and assistance from the attorney in matters pertinent to the legal profession. Petrie, 154 Ariz. at 299, 742 P.2d at 800; see Foulke, 162 Ariz. at 520, 784 P.2d at 726. subjective, taking into account rendered, the circumstances divulged, the client s the under belief and nature which The test is of the services any confidences manifestations of are intent. Petrie, 154 Ariz. at 299, 742 P.2d at 800; Foulke, 162 Ariz. at 520, 784 P.2d at 726. would-be client services and the The relationship may arise when the reasonably lawyer, relies who on reasonably a lawyer should to know provide of such reliance, does not inform the would-be client that the lawyer 3 will not represent him. See Restatement (Third) of Law Governing Lawyers § 14 cmt. e (2000). ¶5 the The response to the petition argues we may not reverse superior court s order because Petitioner has failed to provide us with a transcript of the two-day evidentiary hearing the court conducted on the motion to disqualify. In the absence of a transcript, we must presume the testimony offered at the hearing supports the court s conclusion. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa County, 222 Ariz. 515, 543, ¶ 99, 217 P.3d 1220, 1248 (App. 2009); see In re Property at 6757 S. Burcham Ave., 204 Ariz. 401, 405, ¶¶ 11, 12, 64 P.3d 843, 847 (App. 2003) (appellate court may not conclude superior court abused its discretion in the absence of a hearing transcript). ¶6 Petitioner affidavits to relies support her on deposition contention that testimony she sought obtained legal advice from lawyers at the McCabe firm. and and She also cites invoices reflecting communications between herself and the law firm, and she submitted an affidavit of an expert witness who concluded that by meeting with her, providing her legal advice and answering her questions about legal matters, the law firm established an attorney-client relationship with her. ¶7 The superior court heard testimony that lawyers at the McCabe firm advised Petitioner to obtain her own counsel and that she was represented by separate counsel. 4 Responding to Petitioner s contention that she spoke many times to McCabe lawyers about marital finance matters, a McCabe lawyer testified that Mr. Doherty asked him to work with Petitioner in support of Mr. Doherty s estate planning, meaning that the law firm would deliver information to the husband through his wife. ¶8 In denying Petitioner s motion to disqualify, the superior court specifically found Petitioner was not credible and that she has selective memory and . . . is willing to revise history. The court concluded Petitioner s disqualification claim is not based upon actual facts, and denied her motion because it found no attorney-client relationship existed between her and the McCabe firm. ¶9 Based on the record before us, we cannot conclude the superior court motion. abused its discretion in denying Petitioner s Accordingly, we deny relief. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICIA A. OROZCO, Judge /s/ ANN A. SCOTT TIMMER, Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.