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Attorney Disqualification; Rules of Professional Conduct

Ex parte Utilities Board of the City of Tuskegee, [Ms. 1170234, Sept. 28, 2018] __ So. 3d __ (Ala. 2018). This unanimous opinion (Mendheim, J.; and Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, Bryan, and Sellers, JJ., concur) grants a petition for a writ of mandamus and directs the Macon Circuit Court to vacate an order disqualifying retained counsel (Huie, Fernambucq & Stewart, LLP) ("The Huie Firm") from representing its client.

The Supreme Court concludes the movant failed to present sufficient evidence to sustain its motion to disqualify, which was premised upon Rule 1.11(a), Ala. R. Prof. Cond., such that the trial court's order requiring disqualification was required to be vacated.

The standard of review is:

"It is well settled that '[a] petition for a writ of mandamus is the appropriate vehicle by which to review an order disqualifying an attorney from representing a party.' Ex parte Tiffin, 879 So. 2d 1160, 1164 (Ala. 2003). See also Ex parte Intergraph Corp., 670 So. 2d 858, 860 (Ala. 1995); Ex parte Central States Health & Life Co. of Omaha, 594 So. 2d 80 (Ala. 1992). 'A writ of mandamus will issue where the petitioner has demonstrated "a clear legal right to the relief sought."' Ex parte Dowdell, 677 So. 2d 1158, 1159 (quoting Ex parte Clark, 643 So. 2d 977, 978 (Ala. 1994))."

Ex parte Regions Bank, 914 So. 2d 843, 847 (Ala. 2005). In other words, "[t]he question before us ... is whether [UBT] has a 'clear legal right' to [be] represent[ed by the Huie firm] in this litigation." Ex parte Wheeler, 978 So. 2d 1, 5 (Ala. 2007).

Ms. *8. The standard to be used by the trial court in evaluating a motion to disqualify is:

"'[a] trial court has the authority and the discretion to disqualify counsel for violating the Rules of Professional Conduct, and a "common sense" approach should be used.'" Ex parte Wheeler, 978 So. 2d at 7 (quoting Ex parte Lammon, 688 So. 2d 836, 838 (Ala. Civ. App. 1996)). See also Roberts v. Hutchins, 572 So. 2d 1231, 1233, 1234 (Ala. 1990) (noting that, "[i]n Ex parte America's First Credit Union, [519 So. 2d 1325 (Ala. 1988)], this Court adopted the 'common sense' approach to questions concerning the vicarious disqualification of lawyers" and that this "'common sense' approach ... has been carried forward into the new Alabama Rules of Professional Conduct").

Ms. *9. Further,

"The party moving for an attorney's disqualification ... bears the burden of proving the existence of a conflict of interest." Ex parte Tiffin, 879 So. 2d 1160, 1164 (Ala. 2003). See also In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003) ("The party moving to disqualify counsel bears the burden of proving the grounds for disqualification.").

Ms. *11, n. 1. Importantly, the Court rejected the old attorney-disqualification standard that required disqualification because "[l]awyers must avoid even the appearance of impropriety." The Court stated:

However, an "appearance-of-impropriety" test in assessing whether an attorney should be disqualified under the Alabama Rules of Professional Conduct simply is not the law of our state. See UBT's reply brief, pp. 10-11.

"Both the ABA's Model Rules of Professional Conduct and Alabama's Rules of Professional Conduct, however, have since deleted their provisions concerning the appearance of impropriety in favor of the more precise rules governing client confidences, conflicts of interest and other matters. Thus, disqualification of counsel in this district can no longer be grounded on an appearance of impropriety."

Wade v. Nationwide Mut. Fire Ins. Co., 225 F. Supp. 2d 1323, 1331 (S.D. Ala. 2002). Indeed, the commentary to Rule 1.10, Ala. R. Prof. Cond., which concerns imputed disqualification when attorneys move from one law firm to another, specifically notes that there are at least two problems

with the "rubric formerly used for dealing with vicarious disqualification[, i.e.,] the appearance of impropriety proscribed in Canon 9 of the ABA former Code of Professional Responsibility. First, the appearance of impropriety can be taken to include any new client-lawyer relationship that might make a former client feel anxious. If that meaning were adopted, disqualification would become little more than a question of subjective judgment by the former client. Second, since 'impropriety' is undefined, the term 'appearance of impropriety' is question-begging. It therefore has to be recognized that the problem of imputed disqualification cannot be properly resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety."

Comments to Rule 1.10 (as amended effective June 23, 2008), Ala. R. Prof. Cond. Because of these problems, the commentary counsels that "[a] rule based on a functional analysis is more appropriate for determining the question of vicarious disqualification." Id.

Ms. *18-19. Because a common sense review of the evidence did not substantiate the movant's contention of a Rule 1.11(a) violation, the petition for a writ of mandamus was granted and the trial court was directed to vacate its order requiring disqualification of the Huie firm.

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