Friday, January 30, 2015

Procedure for attorney disqualification must be followed

In Mitts v. Stamps, 2015 OK CIV APP 7, the Oklahoma Court of Civil Appeals held that the trial court must follow the prescribed procedure in disqualifying a party's legal counsel.  The Mitts court held:

¶7 The Oklahoma Supreme Court has conferred a special procedural status on motions to disqualify counsel. As the Court most recently re-affirmed in Miami Bus. Servs., LLC v. Davis2013 OK 20299 P.3d 477, a trial court considering such a motion must follow the procedure set forth in Piette v. Bradley & Leseberg1996 OK 124, ¶ 2, 930 P.2d 183, andArkansas Valley State Bank v. Phillips2007 OK 78171 P.3d 899, before ruling whether an attorney should be disqualified based on conflict of interest or improper possession of confidential information. Miami Bus, ¶ 24. The trial court must hold an evidentiary hearing, and then make a specific factual finding in its order that the attorney either had, or did not have, knowledge of material and confidential information. Id. Without such findings, we cannot review the correctness of the courts' disqualification decision, or any exercise of discretion in refusing to vacate the disqualification.

¶8 The district court relied on District Court Rule 4e (motion may be deemed confessed if not responded to) and Rule 4h (motions may be decided by the court without a hearing). We find no current case law holding that Miami Bus andPiette place motions to disqualify counsel outside of the provisions of Rule 4e and Rule 4h. Nevertheless, those decisions are clear that the right to choose counsel is fundamental, and counsel cannot be disqualified without the required hearing and findings, even when a disqualification motion goes unanswered. We therefore remand this matter for a hearing consistent with the Miami Bus decision.

Summary judgment affirmed after plaintiff's affidavit is stricken

In Kutz v. Deere & Co., 2015 OK CIV APP 6, the Oklahoma Court of Civil Appeals affirmed a summary judgment in favor of a defendant after the court struck the plaintiff's self-serving affidavit.

The Deere & Co. court held:

¶9 "When determining whether an affidavit may be disregarded because it attempts to create a sham issue of fact, the Court may consider whether the party was cross-examined during earlier testimony, whether the party had access to the evidence at the time of earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." Tortorelli v. Mercy Health Center, Inc., 2010 OK CIV APP 105, ¶ 30, 242 P.3d 549, 561 (citing Ishmael v. Andrew2006 OK CIV APP 82, ¶16, 137 P.3d 1271, 1276). "A trial court may disregard an affidavit purporting to create an issue of fact by directly contradicting prior deposition testimony during which the deponent was both cross-examined and had access to the information forming the basis for the affidavit at the time of the deposition." Tortorelliid., (citing Savage v. Burton2005 OK CIV APP 106125 P.3d 1249).

¶10 In this case, Kutz was deposed at great length in July 2012 with his attorney present about evidence to which he clearly had prior access, including his letter to Deere proposing a settlement of their dispute. At the deposition, Kutz admitted not being forced to write his proposal letter, he understood "reaching a settlement" meant the parties would compromise and end their dispute, and that he knew he was releasing his personal claims for money arising from the fire and the equipment. He also admitted he was neither told nor threatened that if he did not settle and/or release his claims with Deere that it would not let him rent the haying equipment from Grissoms.