Lead Opinion
In 1998, the General Assembly enacted OCGA §§ 32-6-75.1 through 32-6-75.3, governing the issuance of permits for trimming vegetation and trees on Georgia rights-of-way to facilitate the viewing of outdoor advertising signs.
During the pendency of the litigation, the superior court granted Garden Club’s motion for an interlocutory injunction prohibiting the DOT from issuing tree cutting permits under the challenged law; it also denied a motion brought by the DOT to disqualify Garden Club’s counsel, former Attorney General Michael Bowers, his co-counsel, Mark G. Trigg, and the law firm of Meadows, Ichter, and Trigg, P. C.
In Case No. S99A1567, Advertisers appeal from the grant of the interlocutory injunction. In Case No. S99X1568, the DOT cross-appeals from the denial of its disqualification motion. Finding no abuse of discretion on the part of the trial court, we affirm both rulings.
Case No. S99A1567
1.
An interlocutory injunction “is a device to keep the parties in order to prevent one from hurting the other whilst their respective rights are under adjudication. . . . There must be some vital necessity for the injunction so that one of the parties will not be damaged and left without adequate remedy.” Price v. Empire Land Co.,218 Ga. 80 , 85 (126 SE2d 626 ) (1962). The trial court has broad discretion to decide whether to grant or deny a request for an interlocutory injunction (OCGA § 9-5-8; Avnet, Inc. v. Wyle Laboratories,263 Ga. 615 (1) (437 SE2d 302 ) (1993)), and the appellate. courts will not disturb the trial court’s exercise of its discretion unless a manifest abuse of discretion is shown or there was no evidence on which to base the ruling. Kennedy v. W. M. Sheppard Lumber Co.,261 Ga. 145 (1) (401 SE2d 515 ) (1991).
Chambers v. Peach County,
The superior court may issue an interlocutory injunction to maintain the status quo until a final hearing if, by balancing the relative equities of the parties, it would appear that the equities favor the party seeking the injunction. Lee v. Environmental Pest & Termite Control,
The superior court weighed the equities in favor of the Garden Club, concluding that the DOT and intervenors would suffer no substantial harm from the granting of the injunction and that the greater harm would result from the cutting of trees. Finding no manifest abuse of discretion in that ruling, we affirm the grant of an interlocutory injunction enjoining the DOT from issuing tree cutting permits under the challenged law.
Case No. S99X1568
2. The Garden Club and several of its individual members were plaintiffs in the Garden Club I litigation brought against the DOT and DOT Commissioner Shackelford. During those proceedings, Bowers served as the Attorney General of Georgia, and his office was counsel of record for the DOT. On that basis, the DOT seeks to disqualify Bowers and members of his law firm as counsel for the Garden Club in the present action. It was alleged in the disqualification motion that Bowers’ current representation concerns a matter in which he had substantial responsibility
(a) Code of Responsibility of the State Bar of Georgia, Rule 3-109 (Canon 9), EC 9-3, provides:
After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.
Similarly, DR 9-101 (B) provides: “A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.”
Under this standard, we must determine whether Bowers has accepted employment in a “matter” in which he had “substantial responsibility” while serving as Attorney General. Both elements must be present in determining whether disqualification is demanded.
We are guided by a definition of “matter” as formulated by The American Bar Association Committee on Ethics and Professional Responsibility in interpreting the identical ABA Disciplinary Rule DR 9-101 (B):
Although a precise definition of “matter” as used in the Disciplinary Rule is difficult to formulate, the term seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties. . . . The same lawsuit or litigation is the same matter. The same issue of fact involving the same parties and the same situation or conduct is the same matter. By contrast, work as a government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer under DR 9-101 (B) from subsequent private employment involving the same regulations, procedures, or points of law; the same “matter” is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties.
ABA Formal Opinion 342 (1975).
The ABA Committee construed the term “substantial responsibility” so as not to “unduly hinder the government in recruiting lawyers” nor interfere with “the right of litigants to employ technically skilled and trained former government lawyers.” Consistent with those policy considerations, it proposed that:
“[Substantial responsibility” envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. Thus, being the chief official in some vast office or organization does not ipso facto give that government official or employee the “substantial responsibility” contemplated by the rule in regard to all the minutiae of facts lodged within that office. Yet it is not necessary that the public employee or official shall have personally or in a substantial manner investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally and substantially involved in the investigative or deliberative processes regarding that matter.
ABA Formal Opinion 342 (1975).
The evidence of record established that Bowers served as Attorney General of Georgia from 1981 until his resignation from office on May 31, 1997. When the Garden Club I litigation was filed in 1995, the office of the Attorney General entered an appearance as counsel for the DOT. Then Deputy Attorney General George P. Shingler had primary responsibility for the case, including: investigation, research, strategy, supervision of other lawyers in the department, communications with the client and with opposing counsel, and presentation of the arguments. Shingler never discussed the case with Bowers, and Bowers made no court appearances in connection with the litigation.
To establish Bowers’ involvement in the Garden Club matter, the DOT relies on the
“The burden is upon the party seeking disqualification to show that the matters embraced within the pending suit are substantially related to the matters or the cause of action” involved in the previous representation. Dismuke v. C & S Trust Co.,
Nor does the evidence of record establish that Bowers had “substantial responsibility” for the Garden Club I litigation or related issues while he served as Attorney General. Shingler’s unrefuted affidavit shows that Bowers was not personally and substantially involved in the deliberative processes regarding those matters. Likewise, the facsimile communication from Ager and referral of the matter to Shingler did not constitute evidence of substantial responsibility. At most it demonstrates Bowers’ mere perfunctory involvement in the matter in question.
Were we to accept the DOT’s argument that Bowers, as a constitutional officer, trustee, and servant of the citizens of Georgia, should be treated differently than other public officers, we would be required to disqualify him from representation in some 16,000 cases in which he participated during his tenure as Attorney General. This result would deprive untold numbers of potential litigants of the right to counsel of their choice and would unduly penalize the public official for his service to the State.
Accordingly, disqualification was not mandated under State Bar Rules and Regulations 3-109, Canon 9, EC 9-3 or DR 9-101 (B).
(b) Standard 69 of Rule 4-102 (d) of the State Bar of Georgia, provides:
A lawyer shall not represent a client whose interests are adverse to the interests of a former client. . . unless he has obtained a written consent of the former client after full disclosure. The term “client” as used in this Standard shall not include a public agency or public officer or employee when represented by a lawyer who is a full time public official.
(c) The DOT further asserts that Bowers should be disqualified under the doctrine in Crawford W. Long Mem. Hosp. &c. v. Yerby,
In Yerby, the challenged attorney and his law firm had defended Crawford Long Hospital in numerous malpractice cases. After the lawyer left that firm, he represented a client in a medical malpractice action against Crawford Long. It was established that the cause of action had accrued while the former representation was ongoing. Consequently, the lawyer was in a position to acquire a wide range of knowledge concerning the hospital’s policies and practices during that time. This Court held that an impermissible appearance of impropriety is created when a lawyer “represent [s] a client against a former client in an action that is of the same general subject matter, and grows out of an event that occurred during the time of such representation.” Id. at 722.
The present action grows out of the enactment of the new legislation, an event that occurred after Bowers left office. Accordingly, Bowers’ involvement while Attorney General did not disqualify him under Yerby. See also Stoddard v. Bd. of Tax Assessors,
“[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein,
Judgments affirmed.
Notes
The legislation became effective on January 1,1999, as a result of ratification of Constitutional Amendment 4 at the November 3,1998 General Election.
See Art. Ill, Sec. VI, Par. VI, Georgia Constitution (1983).
The Manual, entitled “Vegetation Management at Outdoor Advertising Signs,” established a program to permit trimming and removal of trees and other vegetation in front of outdoor advertising signs on State highway rights-of-way.
Concurrence Opinion
concurring in part and dissenting in part.
Though I concur with the majority with respect to the grant of the interlocutory injunction enjoining the DOT, I respectfully dissent to the majority’s opinion regarding the disqualification issue because I believe that former Attorney General Michael Bowers’ representation of the Garden Club in this matter raises the appearance of impropriety and undermines public trust and confidence in our government officials who are lawyers. Disqualification should occur because representation of the Garden Club by the former Attorney General violates the Code of Professional Responsibility of the State Bar of Georgia, the doctrine articulated in Crawford W. Long Mem. Hosp. &c. v. Yerby,
The representation here of the Garden Club raises the appearance of professional impropriety, which a lawyer should avoid under Canon 9 of the Canon of Ethics of the Code of Professional Responsibility of the State Bar of Georgia. Because the former Attorney General’s current representation of the Garden Club is significantly related to the previous litigation concerning the cutting of trees and vegetation on rights-of-way in which he had substantial responsibility, he should be disqualified. His conduct also violates Ethical Consideration (EC) 9-3 and Directory Rule (DR) 9-101 (B) of the Code of Professional Responsibility of the State Bar of Georgia.
EC 9-3 provides,
After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to acceptemployment would give the appearance of impropriety even if none exists.
The majority contends disqualification is inappropriate in this case because the present litigation is not the same “matter” that was at issue at the time Bowers was Attorney General. The majority cites language from the American Bar Association Committee on Ethics and Professional Responsibility in interpreting the word “matter” as it appears in EC 9-3 and DR 9-101 (B) in support of this argument.
I do not believe this definition of “matter” excludes Bowers’ work on the rights-of-way litigation during his tenure as Attorney General and his subsequent representation of the Garden Club on the same subject. The ABA describes a “matter” as, “The same issue of fact involving the same parties and the same situation or conduct. . . .” At issue in the litigation that ensued during Bowers’ tenure as Attorney General and in the present litigation is the trimming of vegetation and trees on Georgia’s highway rights-of-way in front of private signs. The same parties are involved in both lawsuits. There is not a lack of “discrete identifiable transactions or conduct involving a particular situation and specific parties.” ABA Formal Opinion 342 (1975).
The majority also contends disqualification is inappropriate because the former Attorney General did not have “substantial responsibility” in the Garden Club litigation. I do not agree with the majority’s characterization of his involvement in the Garden Club litigation, which it describes as “perfunctory.” This portrayal deemphasizes the role of the Office of the Attorney General by relegating his status to that of a mere nominal member of the office. The former Attorney General was ultimately accountable for the disposition of the litigation, despite the fact that one of his Assistant Attorneys General was necessarily more intimately involved with the details of the litigation. As stated by the ABA:
[I]t is not necessary that the public employee or official shall have personally or in a substantial manner investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally and substantially involved in the investigative or deliberative processes regarding that matter. With a responsibility so strong and compelling that he probably became involved in the investigative or decisional processes, a lawyer upon leaving the government service should not represent another in regard to that matter. To do so would be akin to switching sides, might jeopardize confidential government information, and gives the appearance of professional impropriety in that accepting subsequent employment regarding that same matter creates a suspicion that the lawyer conducted his governmental work in a way to facilitate his own future employment in that matter.
Id.
Additionally, disqualification should occur under the doctrine articulated in Crawford W. Long Mem. Hosp. &c. v. Yerby,
Finally, I believe disqualification is particularly warranted in this case because of the lofty status and high visibility of the Attorney General, which increases the risk of public cynicism with respect to the integrity of government officials. EC 9-6 states, “Every lawyer owes a solemn duty to . . . strive to avoid not only professional impropriety, but also the appearance of impropriety.” The possible negative inferences that can be drawn from the former Attorney General’s participation in this matter include the appearance of “switching sides” and the possibility that confidential governmental information
For the reasons stated above, I would conclude that the trial court’s denial of the motion to disqualify the former Attorney General constituted an abuse of discretion. Accordingly, I dissent.