Opinion
Case No. 20070394-CA.
Filed June 19, 2008. Not For Official Publication
Appeal from the Fourth District, Provo Department, 044400031 The Honorable Fred D. Howard.
Ronald R. Madson, Alpine, for Appellant.
Rosemond G. Blakelock, Provo, for Appellee.
Before Judges Thorne, Billings, and Orme.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.
Rule 3.7 of the Utah Rules of Professional Conduct provides that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless . . . disqualification of the lawyer would work substantial hardship on the client." Utah R. Prof'l Conduct 3.7(a)(3) (emphasis added). In determining whether the hardship exception applies or whether disqualification is warranted, the trial court must "balanc[e] . . . the interests of the client and those of the tribunal and the opposing party." Id. R. 3.7 cmt. 4. Even where there is a risk of prejudice to the opposing party, "due regard must be given to the effect of disqualification on the lawyer's client." Id. "It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness." Id. See Zions First Nat'l Bank v. Barbara Jensen Interiors, Inc., 781 P.2d 478, 480-81 (Utah Ct.App. 1989) ("A motion to disqualify counsel must be immediately filed and diligently pursued as soon as the party becomes aware of the basis for disqualification, and it may not be used as a manipulative litigation tactic."). Attorney disqualification decisions are ordinarily reviewed for an abuse of discretion. See D.J. Inv. Group, LLC v. DAE/Westbrook, LLC, 2005 UT App 207, ¶ 3, 113 P.3d 1022 (mem.) (D.J. 1), aff'd, 2006 UT 62, 147 P.3d 414 (D.J. 2).
In its order disqualifying Ronald R. Madson as Respondent's trial counsel, the trial court specifically found that "[i]t was over sixteen (16) months after learning of a potential problem or conflict before Petitioner filed her Motion to Disqualify" and that "[r]equiring . . . Madson to withdraw would cause a `serious hardship' on Respondent and would, thereby, cause serious prejudice to the Respondent." We agree with Respondent that these findings, without more, are inconsistent with an order disqualifying Madson as Respondent's trial counsel. Cf. D.J. 1, 2005 UT App 207, ¶ 6 (affirming the trial court's refusal to disqualify counsel when the objecting party did not file its motion until more than three months after it learned of the basis for the disqualification); Zions First Nat'l Bank, 781 P.2d at 480-81 (same).
Petitioner contends that because Respondent failed to marshal any evidence or adequately brief the issues, it is impossible to respond. We disagree. Respondent does not dispute the trial court's findings. Rather, Respondent's contention is essentially that the trial court abused its discretion in drawing a conclusion that is inconsistent with those findings. The marshaling requirement simply does not apply, and the briefing is adequate.
Given the trial court's explicit findings of untimeliness and substantial hardship, we reverse the trial court's decision disqualifying Madson as Respondent's trial counsel and remand for further consideration consistent with this decision. In reversing, we express no opinion on whether the trial court may be justified in ultimately disqualifying Madson as Respondent's trial counsel. We merely hold that given the trial court's findings, its ultimate decision does not follow. See generally D.J. 2, 2006 UT 62, ¶ 27 ("`[T]he trial court's factual findings must be articulated with sufficient detail so that the basis of the ultimate conclusion can be understood.'") (citation omitted). If, on remand, the trial court again determines to disqualify Madson as Respondent's trial counsel, it must set forth its rationale for requiring Madson's disqualification notwithstanding its findings that Petitioner's objection was untimely and that Madson's disqualification would work a substantial hardship on Respondent.
In so stating, "[w]e do not intend our remand to be merely an exercise in bolstering and supporting the conclusion already reached."Allred v. Allred, 797 P.2d 1108, 1112 (Utah Ct.App. 1990).
Respondent asks us to direct the trial court to hold a hearing to consider awarding attorney fees and costs incurred on appeal based on Petitioner's use of "an extremely manipulative litigation tactic that was brought in bad faith." In the absence of any evidence supporting his request, and given the discretionary nature of the action under review, we decline to do so. The parties will bear their own attorney fees and costs incurred on appeal.
WE CONCUR: William A. Thorne Jr., Associate Presiding Judge, Judith M. Billings, Judge.