Liebnow ex rel. Liebnow v. Boston Enterprises Inc.
2013 Colo. LEXIS 101
| Colo. | 2013Background
- Personal injury action for E. coli illness from restaurant salad; plaintiff sought pro hac vice admission for out-of-state firm specializing in food-borne illness; defense counsel previously consulted with Falkenstein of that firm about the case; consultations included defense theory, expert recommendation, and potential nonparty defendants research; trial court found confidential information and nonwaivable conflict under Colo. RPC 1.7 and imputed to the firm, denying admission; appellate petition granted to review, and the court discharged the rule and remanded; majority discharges rule, dissent argues error and favors counsel of choice.
- The trial court found that Falkenstein’s consultation gave him divided loyalties and would undermine fairness if he represented the plaintiff; it treated the consultation as creating a nonwaivable conflict under Colo. RPC 1.7 and imputed the conflict to the entire firm under Colo. RPC 1.10; the conflict status determined whether pro hac vice admission could be granted and whether the firm could represent the plaintiff.
- The plaintiff argued RPC 1.7 applies only to attorney-client relationships and that the consultation did not create a conflict or that any conflict was waivable; the court concluded RPC 1.7 applies to third persons and that the consultation did create a conflict not waivable, justifying disqualification.
- The majority analyzed whether the trial court abused its discretion in disqualifying based on RPC 1.7(a)(2) and imputation under RPC 1.10; it found no abuse and affirmed the disqualification/remand.
- The court also discussed original jurisdiction as appropriate to prevent retrial costs and emphasized the fairness and integrity of the proceedings as the basis for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RPC 1.7 applies to third-party consultations | Falkenstein’s involvement not within an attorney-client relationship | RPC 1.7 applies to third parties and can create conflicts | RPC 1.7 applies to third persons and conflicts were present |
| Whether Falkenstein’s consultation created a conflict under RPC 1.7(a)(2) | Consultation involved only technical information not confidential | Consultation revealed confidential strategy and theory | Conflict found under RPC 1.7(a)(2) |
| Whether the conflict was waivable and imputable to the firm | Conflicts can be waived; imputation improper | Conflict nonwaivable and imputable to the firm | Conflict nonwaivable; imputation upheld under RPC 1.10 |
| Whether original jurisdiction was proper to review the trial court’s order | Original proceeding appropriate to review disqualification | Appellate relief inadequate | Original jurisdiction proper; remand for proceedings consistent with opinion |
Key Cases Cited
- In re Estate of Myers, 130 P.3d 1023 (Colo.2006) (disqualification of counsel requires balancing fairness and counsel of choice; abuse of discretion standard)
- Harlan, 54 P.3d 871 (Colo.2002) (abuse of discretion standard for disqualification)
- Fognani v. Young, 115 P.3d 1268 (Colo.2005) (review of disqualification decisions; original jurisdiction concerns)
- Mitchell v. Wilmore, 981 P.2d 172 (Colo.1999) (expert witness disqualification when both sides consult same expert)
- Rodriguez v. District Court, 719 P.2d 699 (Colo.1986) (counsel of choice; prejudice and fairness principles in disqualification)