finding attorney has “substantial responsibility” even though attorney was not primary counsel and could not recall details of the former matter or confidences disclosed
How later courts described this case
- finding attorney has “substantial responsibility” even though attorney was not primary counsel and could not recall details of the former matter or confidences disclosed
Written by the judges who cited it.
The opinion
Patricia Ann Blackmon, Judge,
concurring.
{¶ 31} I concur in judgment only. I write separately because I believe that Somich’s relationship with LMI was minimal and should not be imputed to Ogletree; however, the law is so broad that I am compelled to agree with the ultimate conclusion of the majority opinion.
{¶ 32} Under the present law, the underlying premise is that no lawyer should undertake a matter that is directly adverse to a former client’s interest, unless, of course, that client consents. In my view, in order to raise the presumption of shared confidences, the disqualified lawyer must have had a substantial responsi
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bility for the client’s matters to be in a position to receive or acquire actual confidences. To meet this test, the confidence must be real.
1
{¶ 33} The best example of a real confidence, which raises the presumption, is in
Majestic Steel Serv., Inc. v. Disabato.
2
There, the disqualified law firm had represented the movant in a wide variety of matters such as drafting and advising on noncompete covenants, which were the subject of the lawsuit. Thus, the disqualified law firm was in a position to receive confidences because it was substantially responsible for the client’s matters.
{¶ 34} In this case, Kristin Ali Somich became a lawyer in 2005 and worked at Baker & Hostetler in 2006. In 2006, Michelle Pierce Stronczer, a former partner at Baker and now LMI’s lawyer, assigned a research task to Somich. Somich was to answer the question whether LMI could sue its former employee, Jean Bourgeois, for trade secrets and noncompete violations. During the project, Somich never met with LMI, and it is undisputed that the primary lawyer for the LMI was Stronczer. Bourgeois had departed LMI in 2003 and is not a party in this appeal; however, this case is about her and her nine employees who once worked for LMI.
{¶ 35} The evidence to support the motion to disqualify is a I4.6-hour billing statement as well as Stronczer’s allegation that she shared confidences with Somich about LMI’s operation and its legal strategy against Bourgeois. The evidence that contradicts the motion to disqualify is Somich’s statement that she does not remember the research or any shared confidences, she never met with LMI during that research project, the research project did not involve these nine defendants, and the research was not presented in the form of a document or otherwise for in-camera inspection by the trial court.
{¶ 36} In view of these facts, nothing exists in the record that establishes any real confidences. Consequently, I agree with Ogletree that Stronczer’s testimony that she shared LMI’s confidences with Somich is not sufficient as a matter of law to raise the presumption of the existence of actual or real confidences. Accordingly, Stronczer’s testimony states that she shared the confidences with Somich, but her testimony does not establish what the actual confidences were. I do not believe the presumption arises when the disqualified lawyer’s involvement is minimal. Consequently, the movant has the burden of proving the actual confidences. In this case, this could have easily been accomplished through an
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in-camera inspection. Therefore, I believe that in this matter, the right to the lawyer of one’s choice greatly outweighs the movant’s right to disqualify.
1
. See
Dana Corp. v. Blue Cross & Blue Shield Mut. of N. Ohio
(C.A.6, 1990), 900 F.2d 882 , and
Kala v. Aluminum Smelting & Refining Co., Inc.
(1998), 81 Ohio St.3d 1 , 688 N.E.2d 258 .
2
.
(Ocl. 21, 1999), Cuyahoga App. No. 76540, 1999 WL 961465 .