Delay In Filing Motion To Disqualify Counsel Waives Objections


Ex parte Petway Olsen, LLC, [Ms. 1190402, Dec.11, 2020], ___ So. 3d ___ (Ala. 2020). The Court (Wise, J.; Parker, C.J., and Shaw, Bryan, Mendheim, and Stewart, JJ., concur; Sellers, J., concurs in the result; Bolin and Mitchell, JJ., dissent) issues a writ of mandamus directing the Jefferson Circuit Court to vacate its order disqualifying the Petway Olsen law firm from representing plaintiff in an action against Mercedes Benz USA ("MBUSA"). MBUSA’s motion to disqualify asserted that one of the members of Petway Olsen was a former general counsel of its affiliate, Mercedes-Benz U.S. International, Inc. (“MBUSI”), and was privy to vast amounts of confidential information. Ms. *5. The Court denies the writ and explains

MBUSA did not join MBUSI’s motion to disqualify or file its own motion to disqualify at that time. Rather, it waited approximately17 to 18 months to file its motion to disqualify. Thus, MBUSA did not file its motion to disqualify within a reasonable time after discovering the facts constituting the basis for that motion. Additionally, in its response to MBUSA’s motion to disqualify, Bruce Petway asserted that

“[t]he Plaintiffs relied on MBUSA’s absence of any objection to Petway [Olsen] representing the Plaintiffs in dismissing MBUSI, believing this would satisfy all concerns that had been raised by any Party to this action.”

Therefore, Petway argued, the plaintiffs would be unduly prejudiced if MBUSA’s untimely motion to disqualify was granted.

We conclude that MBUSA did not timely file its motion to disqualify Petway Olsen from representing the plaintiffs. Therefore, it waived any objection to Petway Olsen’s representation of the plaintiffs. Accordingly, the trial court erred when it granted MBUSA’s motion to disqualify Petway Olsen.

Ms. *12.

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