Opinion
No. 73-367
Decided October 15, 1974.
In appeal of judgment entered on promissory note, defendant contended that because plaintiff's attorney had previously represented defendant he should be disqualified from representing plaintiff.
Affirmed
1. ATTORNEY AND CLIENT — Disqualification — Appearance Against Former Client — Limiting Conditions — Not Present — Denial of Motion — Proper. An attorney is not disqualified from appearing against a former client unless his new retainer will injuriously affect his former client in a matter in which he formerly represented him, or unless he will be called upon to use against his former client information acquired through their former connection; thus, where neither of these elements was present relative to plaintiff's attorney's former representation of defendant, the trial court properly denied defendant's motion for disqualification of the attorney.
Appeal from the Superior Court of the City and County of Denver, Honorable Carl W. Fulghum, Judge.
Robert J. Verner, for plaintiff-appellee.
Geer, Goodwin Chesler, P.C., Robert E. Goodwin, for defendant-appellant.
This is an action on a promissory note. Hugh Paxson, the only defendant served with summons, asserted defenses of payment and accord and satisfaction. He also claimed plaintiff's attorney should not be allowed to represent plaintiff because of previous representation of defendant. After trial to the court, following denial of defendant's motion to disqualify plaintiff's attorney, judgment was entered for plaintiff for the full amount of the note, plus interest. We affirm. On appeal defendant asserts that he should have been allowed a setoff, and reasserts his claim that plaintiff's attorney should have been disqualified.
The setoff was claimed on a check to plaintiff, drawn on the account of a family corporation of which defendant was president. The evidence was conflicting as to whether the check was a part payment on the note or payment of another obligation owed to plaintiff by the corporation. The evidence supports the finding and conclusion of the trial court that the check did not constitute a payment on the note. Therefore, that finding will not be disturbed. Rutherford v. Scarborough, 28 Colo. App. 352, 472 P.2d 721.
Defendant sought to have plaintiff's attorney disqualified on the ground that he had confidential information which would aid him in presentation of plaintiff's case. However, the evidence was undisputed that the transaction involving the note took place in Missouri, with no attorney involved, and that plaintiff's attorney knew nothing about the transaction until called upon to bring the present suit. Further, the attorney's representation of defendant had terminated over a year prior to the bringing of this action, and no information which he had received in his prior employment had any bearing in the present action.
[1] An attorney is not disqualified from appearing against a former client unless his new retainer will injuriously affect his former client in a matter in which he formerly represented him, or unless he will be called upon to use against his former client information acquired through their former connection. Wutchumna Water Co. v. Bailey, 216 Cal. 564, 15 P.2d 505. Neither of these elements is present here. Thus, the trial court property denied the motion for disqualification of the attorney.
Judgment affirmed.
JUDGE PIERCE and JUDGE SMITH concur.