holding that to establish prejudice, “the moving party must point to the specific, identifiable harm she will suffer in the litigation by opposing counsel’s continued representation”
How later courts described this case
- holding that to establish prejudice, “the moving party must point to the specific, identifiable harm she will suffer in the litigation by opposing counsel’s continued representation”
Written by the judges who cited it.
The opinion
SILVER, J.,
concurring.
[¶ 14] I concur in the result reached by the majority, but write separately because this is a much closer question than the majority suggests. In addition, my analysis of disqualification is somewhat different. I would not require both a finding of an ethical violation and prejudice. There are situations where either would require disqualification. I would not disqualify Bredhoff & Kaiser in this matter but it is better practice not to have the same firm perform a discrimination investigation and represent the employer in any resulting litigation. Furthermore, I would not require a court to make express findings of an ethical violation because a trial record may contain enough to show that an ethical violation occurred.
[¶ 15] As the dissent notes, “[t]he standard of review for orders disqualifying or refusing to disqualify counsel is highly deferential.” Casco N. Bank v. JBI Assocs., 667 A.2d 856, 859 (Me.1995); see also Koch v. Koch Indus., 798 F.Supp. 1525, 1530 (D.Kan.1992) (“Within the inherent supervisory powers of the court is the discretionary authority to control attorneys.”), cited with approval in Casco N. Bank, 667 A.2d at 859 . In order to protect a client’s choice of counsel, however, see Estate of Markheim v. Markheim, 2008 ME 138, ¶ 20 , 957 A.2d 56, 61 , disqualification of counsel must be based on evidence of an ethical violation or actual prejudice.
[¶ 16] The party moving for disqualification “has the burden of showing the grounds for disqualification, producing more than mere speculation and sustaining a reasonable inference of an ethical violation.” Casco N. Bank, 667 A.2d at 859 (quotation marks omitted). In evaluating a disqualification motion, the court must do more than assume that prejudice took place. See Hurley v. Hurley, 2007 ME 65, ¶¶ 20-21 , 923 A.2d 908, 912-13 . A requirement of express findings, however, is an extension of our prior case law that infringes on the deferential standard of review, and is unnecessary in order to protect the interests at play here.
[¶ 17] An employer’s use of the same law firm to both conduct internal investigations and to represent it in suits brought by employees may not be a technical violation of the ethical rules, but it is nevertheless fraught with difficulties and is not a “best practice.” It is commendable that the Association hired an outside entity to investigate Morin’s allegations. It would be a better practice to hire an investigator not associated with its litigation counsel.
[¶ 18] Claims of discrimination inevitably include an allegation that would require the investigator to testify in the trial of the matter, and here it will be difficult to litigate this matter without the testimony of Attorney Edelman. While Attorney Edelman’s participation as a witness does not require disqualification of the firm under the Maine Rules, see M.R. Prof. Conduct 3.7(b); M. Bar R. 3.4(g)(l)(ii) (2008), 4 *1102 this approach is highly problematic in practice. In fact, the Rules previously required disqualification of a firm where an attorney would testify, but the Rule was amended to allow continued representation by the firm, based on the logic that “[i]n the absence of either prejudice or conflict, the party calling the lawyer-witness should be free to decide the question whether the value of continuing representation outweighs the risk of impeachment.” M. Bar R. 3.4(j) Advisory Committee’s Note to 1985 amend., Me. Rptr., 479-487 A.2d LXXXIX. 5 The Advisory Committee still viewed this situation as a detriment to the client, but chose in the amendment to allow the client to weigh the relative disadvantages. See id. The change was not undertaken with the goal of allowing what occurred here — intentionally creating a situation where the same firm will provide both counsel and an essential witness.
[¶ 19] The problem with the firm’s actions in this case is not only that the investigating attorney is a likely witness, but also that it invites challenges such as this, which will interrupt and distract from the resolution of the case. The trial court found Attorney Edelman’s role confusing at a minimum. This is not good service to a client, as it could result in expense, delay, confusion to the jury, confusion to the client, and could lead to ethical violations and actual prejudice on different facts than those present here.
[¶ 20] Because the record demonstrates no ethical violations and no prejudice to either party by Bredhoff & Kaiser’s continued representation of the Association, I would vacate the order disqualifying counsel. However, the majority goes too far by requiring the trial court to make express findings of a violation and resulting prejudice before disqualifying counsel.
. Attorney Edelman is not licensed to practice *1102 in Maine, and I make no pronouncement as to whether there has been a violation of another jurisdiction's bar rules.
. Rule 3.4(j) became Rule 3.4(g)(1) in 1993. See M. Bar R. 3.4(g) Advisory Committee’s Note to 1993 amend., Me. Rptr., 602-617 A.2d CXXXVI.