Ex parte Communications with Former Managerial Employee of Defendant
Ex parte The Terminix International Co., [Ms. 1180863, Oct. 30, 2020], ___ So. 3d ___ (Ala. 2020). In a 9-0 decision, the Court denies a writ of mandamus sought by Terminix seeking to disqualify Campbell Law from representing customers against Terminix involving termite infestations at the Bay Forest Condominiums. The firm had retained as an investigator and consultant, Steve Barnett, a former managerial employee of Terminix. Ms. *2.
The Court first notes
It is well established that a trial court has the authority to disqualify counsel for violating the Alabama Rules Professional Conduct. See Ex parte Utilities Bd. of Tuskegee, 274 So. 3d 229, 232 (Ala. 2018). Nonetheless, this Court has explained that a “common-sense approach” should guide the trial court when considering motions to disqualify and that a violation of the Rules of Professional Conduct does not require disqualification in every instance. See, e.g., Ex parte Wheeler, 978 So. 2d 1, 7 (Ala. 2007) (concluding that counsel’s disqualification was inappropriate even though he had violated Rule 1.11, Ala. R. Prof. Cond.). In sum, the decision of whether to disqualify counsel who has violated the Rules of Professional Conduct falls squarely within the sound discretion of the trial court. Taylor Coal, 401 So. 2d at 3. Accordingly, the trial court’s denial of the motion to disqualify must be affirmed unless it is established that the ruling “is based on an erroneous conclusion of law” or that the trial court “has acted arbitrarily without employing conscientious judgment, has exceeded the bounds of reason in view of all circumstances, or has so far ignored recognized principles of law or practice as to cause substantial injustice.” Edwards v. Allied Home Mortg. Capital Corp., 962 So. 2d 194, 213 (Ala. 2007).
Terminix argued that under Rule 4.2(a), “Campbell Law had a duty to seek Terminix’s consent before contacting Barnett and before hiring him to be an investigator and consultant.” Ms. *10. The Court rejects this argument, noting that “[t]he majority of states that have interpreted a rule derived from Model Rule 4.2 have likewise concluded that it applies only to current employees.” Ms. *13.
The Court likewise rejects Terminix’s argument that Barnett should be presumed to have shared with Campbell Law Terminix’s confidential information, explaining “[g]iven the evidence indicating that Campbell Law clearly instructed Barnett that he could not disclose any privileged and confidential information that he had obtained from Terminix and the absence of any evidence indicating that Barnett violated that instruction, we cannot conclude that Rules 1.6(a) and 1.9(b) have been violated.” Ms. *19. Likewise, the Court concludes that given “Barnett’s limited involvement in Terminix’s legal affairs generally and the Bay Forest matter in particular, we agree with the trial court that there has been no violation of Rule 1.9(a)” which prohibits a lawyer from switching sides in the same dispute. Ms. *23.