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Judge denies bid to disqualify plaintiff’s lawyers

Peter Vieth//April 16, 2014

Judge denies bid to disqualify plaintiff’s lawyers

Peter Vieth//April 16, 2014

norfolk-sealA Norfolk circuit judge has rejected an effort to unseat lawyers for a medical malpractice plaintiff just four months before trial.

The disqualification motion centered on a lawyer who moved from a defense firm – where he represented the defendant doctors – to a new job at one of the plaintiff’s law firms.

The decision by Judge John R. Doyle III in Honig v. Obstetrical and Gynecological Assocs. Tidewater Inc.  (VLW 014-8-042) clears the way for a three-day trial in July.

Cecelia Honig sued her obstetricians in 2011, according to a stipulation of facts and court records. The obstetricians were represented by Carolyn P. Oast of Virginia Beach and her then-associate, Mark J. Favaloro.

Favaloro took depositions of several witnesses in the case, including Honig and her husband.

Favaloro switched law firms in 2012, going into practice with James Lewis of Virginia Beach, who often represents patients in medical malpractice actions.

Honig, represented by Richmond’s Jonathan M. Petty, voluntarily dismissed her case by nonsuit in January 2013.

Before refiling Honig’s suit against her doctors, Petty sought to add Lewis’ firm to the plaintiff’s legal team.

Lewis called Oast to see if there would be any objection to his joining the case, considering Favaloro was now with his firm. Lewis and Oast previously had reached a similar agreement to waive the conflict in a case involving the same medical practice, according to a lawyer involved in the case.

Oast told Lewis there would be no objection to Lewis as Honig’s counsel as long as Favaloro was screened from any involvement or communications regarding the case.

Oast never requested consent from the doctors she represented, however, nor did she tell Lewis that the clients had consented. The agreement was never confirmed in writing, the stipulation said.

All parties agreed that Favaloro never had any further involvement in the Honig case.

When Petty – now associated with Lewis – refiled Honig’s suit in July, the doctors had new counsel. They now were represented by Kimberly A. Satterwhite of Richmond.

There was no new discussion of the waiver of an alleged conflict between the plaintiff’s side and Satterwhite, according to the stipulation.

Favaloro made another move in January, leaving Lewis’ firm and opening his own law office in Virginia Beach.

When Satterwhite learned of Favaloro’s connection with Lewis, she consulted the defendant doctors who said they did not and would not agree to waive the potential conflict. Satterwhite asked the judge to disqualify both Lewis and Petty.

It was Favaloro’s second move that saved the day for Honig and her team, under Doyle’s reasoning.

While lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so, according to Rule 1.10 of the Virginia Rules of Professional Conduct. The rule allows only the “affected client” to waive the disqualification.

The judge made an express finding that Favaloro never provided any confidential information to Lewis, but he said the defense lawyer could not unilaterally waive the conflict imputed to Lewis’ firm.

Oast should have consulted her clients before agreeing to waive Favaloro’s conflict of interest, Doyle said. In “plain language,” the rules require the client to consent after consultation, the judge said.

Agreeing to overlook the conflict is a “decision that only the client can make,” Doyle wrote.

Because Favaloro had moved on from Lewis’ firm, however, a different provision applied to the current situation, Doyle said

Subsection (b) of Rule 1.10 would remove the imputed disqualification upon Favaloro’s departure, as long as no remaining lawyer had confidential information regarding Favaloro’s former clients.

Under the circumstances, “there is no apparent prejudice to the Defendant from Mr. Lewis’ continuing representation of the Plaintiff,” Doyle wrote.

Petty and Lewis were represented in the conflict dispute by Virginia Beach lawyer L. Steven Emmert, who said everyone involved in the purported waiver had behaved professionally.

“You pick up the phone and you talk. That’s the first thing you do as a professional,” Emmert said.

It’s natural for a lawyer to make the tactical decision to overlook a technical conflict, Emmert said.

“This is a matter where professionals routinely will say, ‘Yes,’” Emmert said.

Emmert’s arguments for the plaintiff’s lawyers were bolstered by an opinion from the Virginia State Bar ethics hotline service. Petty had written to the bar and described the situation without giving names or identifying the case.

The VSB opinion supported the plaintiff’s position that the conflict had evaporated on Favaloro’s move from Lewis’ firm, Emmert said.

The judge questioned the assumptions in the initial opinion from the VSB, so the lawyers requested a clarification and submitted it to Doyle.

“That’s what he wanted to see before he made a decision,” Emmert said.

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