Screens Work

The North Carolina Court of Appeals found that an appeal of a denied motion to disqualify was interlocutory but nonetheless concluded it had been properly denied in an alienation of affection and criminal conspiracy suit

On 23 January 2020, Defendant moved to disqualify the law firm representing Plaintiff, Sodoma Law, P.C., on the grounds that Ms. Simpson, her former attorney, had left her former law firm, Hamilton, Steele & Martin, PLLC, and was by then employed at Sodoma Law, P.C., the same firm as Plaintiff’s counsel. Defendant argued in the motion that Plaintiff’s firm should be disqualified from continuing the representation of Plaintiff because of the imputation of the conflict of interest between Defendant and her former lawyer to the other lawyers at Plaintiff’s firm, including Plaintiff’s counsel.

Only a granted motion can be appealed

Defendant does not have an appeal of right from the trial court’s order denying her motion to disqualify because the denial did not deprive her of counsel of her choosing.

The merits

The question on the merits is whether the trial court abused its discretion by denying Defendant’s motion to disqualify the law firm representing Plaintiff because Defendant’s former lawyer joined the firm after the lawyer’s representation of Defendant concluded. The issue is thus whether Defendant’s former lawyer and the law firm representing Plaintiff complied with the North Carolina Rules of Professional Conduct concerning conflicts of interest between lawyers and former clients, and if not, whether the trial court abused its discretion by denying the motion to disqualify in light of any failure to comply with the Rules of Professional Conduct. We hold that it was not error, much less an abuse of discretion, for the trial court to deny the motion.

…The question on the merits here is whether Defendant’s former lawyer and the law firm representing Plaintiff complied with Rule 1.10(c) when Defendant’s former lawyer joined the firm, and if not, whether the trial court abused its discretion in concluding that (1) Defendant’s former lawyer “ha[d] complied with Rule 1.10”; (2) Defendant’s former lawyer “ha[d] been appropriately screened”; and (3) “no conflict of interest exist[ed] that would disqualify [Plaintiff’s law firm] from continued representation of [] Plaintiff[.]” We hold that these conclusions were not error, much less an abuse of discretion.

The trial court had examined the screen and resulting “evidentiary challenge”

However, this argument is not really an evidentiary challenge at all. Instead, it is a legal argument based on a false premise: that Plaintiff’s counsel acting on behalf of Defendant’s former counsel and communicating directly with Defendant in order to comply with the requirements of the Rules of Professional Conduct was a violation of the Rules of Professional Conduct. The conduct Defendant intimates constituted wrongdoing is expressly authorized by the Rules of Professional Conduct.

(Mike Frisch)