Disqualification of an attorney is a matter which rests within the sound discretion of the trial court and will not be overturned absent a showing of abuse. Moreover, there is authority for the proposition that in a disqualification situation, any doubt is to be resolved in favor of disqualification.
The trial court disqualified the appellant ex-wife's counsel because it found that he had previously represented the ex-husband eight years earlier in litigation arising out of the parties' divorce and that he was presumed to know confidences of the ex-husband. In the ex-wife's appeal, she argued that her counsel never formed an attorney-client relationship with her ex-husband and, therefore, he was not automatically presumed to have received confidential information. The court held that the trial court abused its discretion by granting the motion to disqualify the ex-wife's counsel. The court reversed the trial court's judgment disqualifying the ex-wife's counsel and remanded the matter for a determination whether any client confidences that could be damaging to the ex-husband in the pending action were imparted by him to the ex-wife's counsel.
Did the trial court abuse its discretion by granting the motion to disqualify the appellant's counsel?
The court found that the counsel and the ex-husband never formed an attorney-client relationship. Therefore, the ex-husband was not entitled to rely upon the irrefutable presumption that confidences were imparted to the counsel. The court reversed the judgment and remanded the matter to give the ex-husband the opportunity to show that he imparted confidential information that would be damaging in the pending litigation to his ex-wife's counsel. The court noted that the counsel would be free to rebut such allegations before the trial court made its decision on the motion.