Margie Lineberry v. Riley Farm Property Owners Association et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

MARGIE LINEBERRY

APPELLANT

V.

RILEY FARM PROPERTY OWNERS

ASSOCIATION, et al.

APPELLEES

CA 05-399

NOVEMBER 9, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, [NO. CV-2004-937(VI)]

HONORABLE J. MICHAEL FITZHUGH, JUDGE

MOTIONS FOR DECLARATION THAT NO CONFLICT EXISTS; IN THE ALTERNATIVE, FOR SUBSTITUTION OF COUNSEL; AND FOR AN ENLARGEMENT OF TIME TO FILE BRIEF.,

JUDGE

CONCURRING OPINION

John B. Robbins, Judge

I fully agree with the majority of our court that dismisses in part and grants in part the motion of appellees, but write this concurring opinion to respond to the dissent.

The dissenting judges suggest that, because the motion to substitute counsel is in the alternative to a request that we declare there to be no conflict of interest in present counsel representing appellee, we somehow lose our jurisdiction to grant substitution of counsel. They do not cite any authority for this contention, and I do not know of any.

First, and as noted by the dissent, the majority of this court is not addressing appellee's motion respecting any conflict of interest. We are dismissing that request. Appellees' motion goes on to make an alternative request, however, that if we do not declare that no conflict of interest exists, we grant a substitution of counsel. This we can do, and we do so routinely, especially as in this case where the opposing party has announced that she has no objection.

Sam Bird, Judge, dissenting. Appellees have filed a motion requesting that we declare that its attorneys, Pryor, Robertson & Barry, PLLC (the Pryor law firm), have noconflict of interest in representing the appellees in this appeal. They allege that attorney Cody Hayes, who formerly represented the appellant in the early stages of this litigation in the trial court, is now a member of the Pryor law firm. Appellees further allege that, after unsuccessful attempts to resolve the potential conflict-of-interest issue with appellant's attorneys, appellant has notified appellees that appellant will not waive her objection to any conflict of interest that might exist by virtue of Hayes's association with the Pryor law firm. As an alternative to their request that we declare that no conflict of interest exists, appellees pray that, if we do not declare that no conflict of interest exists, the Pryor law firm be allowed to withdraw from its representation of the appellees in this appeal so that other counsel can be substituted in its place.

Appellant has filed a response to appellees' motion in which she asserts that, under the circumstances here existing, there is a conflict of interest, and that she has not waived her objection to such conflict.

A majority of this court has decided that it lacks jurisdiction to either grant or deny appellees' request that this court declare that a conflict of interest exists. I fully agree with that decision. However, the majority has also decided, erroneously I believe, that, although lacking jurisdiction to declare whether a conflict of interest exists, this court should grant the Pryor law firm's request to withdraw as appellees' counsel and permit substitute counsel to represent appellees in this appeal. My disagreement with this court's action in allowing withdrawal and substitution of counsel is that, because appellees' request is premised upon our declining to grant their request that we declare the existence of a conflict interest, which we lack jurisdiction to do, I cannot see how this court has acquired jurisdiction to allow substitution of counsel in a case where there may be no conflict. If there is no conflict, no substitution of counsel is necessary. Only the Pryor law firm can decide whether it has aconflict of interest in representing appellees. See Arkansas Rules of Professional Conduct 1.7. If the Pryor law firm decides, as only it can, that it has a conflict of interest in its representation of appellees, then it should file a motion so advising this court, and we should grant leave for withdrawal and substitution of counsel. But, until the Pryor law firm decides whether it has a conflict, we should not tacitly hold that it does by granting, in excess of our jurisdiction, its motion to withdraw.

Hart and Glover, JJ., join in this dissent.