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Rymal v. Baergen6/8/2004
litigation with plaintiff, the order of disqualification issued by the trial court clearly indicates that the order was not limited to the litigation at hand but applied equally to any prospective litigation that Clark may commence in the future against defendants, which was a near certainty and has apparently occurred. Were Clark to use the services of disqualified counsel in a subsequent action against defendants, we opine that the doctrine of collateral estoppel would require the court in the subsequent action to recognize and apply the disqualification order entered in this case. At that point in time, Clark would no longer be in the position to challenge the underlying disqualification order. Accordingly, Clark's legal right to select counsel of its choosing has been invaded regardless of the settlement with plaintiff. Although it might be argued that the matter has become moot in light of the Clark litigation against defendants with new counsel, Clark could still choose to substitute counsel, and it cannot be stated with definitiveness that other actions by Clark against defendants will not occur.
Next, we address the substance of Clark's arguments. "The party seeking disqualification bears the burden of demonstrating specifically how and as to what issues in the case the likelihood of prejudice will result." Kubiak v Hurr, 143 Mich App 465, 471; 372 NW2d 341 (1985)(citations omitted). MRPC 1.2(b) provides that " lawyer may limit the objectives of the representation if the client consents after consultation." Therefore, the actions of Clark's counsel to limit representation of defendants to the filing of an answer and affirmative defenses and thereafter only to the extent that no conflict was discovered was well within the confines of the MRPC.
MRPC 1.9 provides, in relevant part:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
Clark's counsel formerly represented Baergen and MTD and sought to continue representing another client, Clark, in the same matter. Considering that the motion for leave to add a cross-claim was denied, and the lawsuit proceeded against all named defendants with the question being Clark's and defendants' liability to plaintiff for the alleged CRA violations, we question whether Clark's interests were materially adverse to defendants for purposes of the particular suit and issues presented. Nonetheless, because Clark evidenced an intent to file suit against defendants, and because the trial court's disqualification order is not limited to the CRA suit, it can be concluded that Clark's interests are indeed materially adverse to defendants' interests. The question becomes whether defendants consented after consultation, and even if so, was disqualification still required.
We find that Clark's counsel fully explained the nature of the limited representation, filing an answer and affirmative defenses, and the parameters t
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