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Rymal v. Baergen6/8/2004
firm conviction that a mistake has been made. Samuel D Begola Services, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995). The application of "ethical norms" to a decision whether to disqualify counsel is reviewed de novo. General Mill Supply Co v SCA Services, Inc, 697 F2d 704, 711 (CA 6, 1982).
B. Attorney Disqualification
Clark challenges the disqualification of counsel, arguing that the Michigan Rules of Professional Conduct (MRPC) permit an attorney and client to limit the scope of representation as was done here. Any further representation was conditioned on the lack of any conflict of interest. Clark insists that on the basis of the initial discussion with Baergen concerning representation and the allegations in the complaint, it had no information to conclude that a conflict existed or potentially existed, and it lacked the time to make an independent investigation before the filing deadline. Clark, relying on Restatement of the Law Governing Lawyers, ยง 132, further argues that ethics rules expressly permit an attorney to seek and rely on a client's waiver of a conflict of interest or potential conflict of interest in advance of representation, where the attorney is offering representation as an accommodation to an existing client. Clark also maintains that support for upholding Baergen's agreement to abide by the terms of the representation is found in the fact that Baergen knew about a possible conflict and was not forthcoming and signed the acknowledgement anyway, especially where the document fully informed Baergen of the situation and possibility that Clark's counsel would have to withdraw representation. According to Clark, a lawyer should not be disqualified for a conflict of interest in a matter for which the allegedly aggrieved former client has executed a voluntary waiver of a conflict of interest. Finally, Clark argues that the limited engagement of representation was not substantially related to the cross-claim filed eight months later, which cross-claim was based on facts adduced after the representation concluded.
Defendants first argue that this Court lacks jurisdiction to hear this issue as Clark lacks standing. The argument is predicated on MCR 7.203 and the requirement that an appeal be taken only by an aggrieved party. Defendants maintain that, because Clark settled the lawsuit with plaintiff after this Court granted leave, Clark is no longer a party with an interest in the subject matter of the litigation. Defendants assert that Clark's legal rights are no longer invaded, nor does it have a pecuniary interest that is being adversely affected. Defendants' appellate brief notes that Clark has already commenced an independent action against Baergen and MTD in the Oakland Circuit Court, File No. 03-050254-CZ. Finally, defendants argue that, regardless of the issue of jurisdiction, the trial court's ruling was sound given that Clark's original counsel sought to add a cross-claim against defendants, and defendants never waived any conflict of interest nor consented to counsel taking an adverse action against them.
We first turn to the issue of standing and jurisdiction. This Court in Dep't of Consumer & Industry Services v Shah, 236 Mich App 381, 385; 600 NW2d 406 (1999), stated:
To have standing to appeal means that a person must be "aggrieved" by a lower body's decision. MCR 7.203(A). This Court has defined the term "aggrieved party" as "'one whose legal right is invaded by an action, or whose pecuniary interest is directly or adversely affected by a judgment or order. It is a party who has an interest in the subject matter of the litigation.'" [Citations omitted.]
While it is true that Clark settled the
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