Attorney Disqualification - Law of the Case


Ex parte Robin Fipps, [Ms. 2190628, Aug. 7, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court (Moore and Hanson, JJ., concur; Thompson, P.J., concurs specially; Donaldson and Edwards, JJ., concur in the result) denies the father’s petition for a writ of mandamus challenging the Jefferson Circuit Court’s disqualification of the father’s counsel in this custody modification proceeding. Although the wife failed to raise the law-of-the-case doctrine in the circuit court, the court noted that, “a petition for the writ of mandamus may be denied if the order under review is correct and supported by any valid legal ground, even one not argued in the trial court. Thus, we will consider whether the law-of-the-case doctrine requires the denial of the father’s mandamus petition.” Ms. *7, citing Ex parte CTB, Inc., 782 So. 2d 188, 191(Ala. 2000).

The father acknowledged his attorney in the current custody proceeding represented the mother in her 2003 divorce action against her former husband and also acknowledged that in 2015 the trial court entered orders disqualifying the attorney from representing the father on the basis of Rules 1.6 and 1.9, Ala. R. Prof. Cond. Ms. *8.

The court denied the petition based on the-law-of-the-case doctrine because “once an issue has been decided in a divorce action, the law-of-the-case doctrine precludes reconsideration of that issue in subsequent modification and enforcement actions arising out of the divorce judgment.” Ibid.

The court notes that the attorney argues that “the factual conclusion that he had acquired confidential ‘knowledge of private and confidential information’ during his 2003 representation of the mother was erroneous; however, the specific purpose of the law-of-the-case doctrine is to preclude rehashing of the same issues in repeated litigation. See Ex parte Discount Foods, Inc., 789 So. 2d 842, 846, n. 4 (Ala. 2011).” Ms. **10-11.

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