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Rymal v. Baergen6/8/2004
hat would guide any further representation, i.e., the lack of any conflict of interest. Baergen specifically agreed and consented that if a conflict were discovered, counsel could continue representing Clark. Therefore, consistent with MRPC 1.9(a), there was consent after consultation. While we recognize that consent was given before a conflict of interest was revealed, the written agreement anticipated the possibility of such a conflict, and Baergen agreed that if a conflict arose, counsel could maintain representation of Clark. We further acknowledge that the consultation did not involve a discussion by counsel of the particulars of a conflict of interest for which consent was sought, as no conflict had yet been revealed to counsel; however, Baergen himself was obviously aware of the history and nature of MTD and his non-compete agreement with Clark, but he still executed the retention agreement, approving of Clark's continued representation by counsel even in the face of a conflict of interest.
Further, there was no evidence that Clark's counsel used any confidential information obtained through the limited representation to the disadvantage of defendants. If indeed counsel had done so, the likelihood is that the motion for leave to file a cross-claim would have been filed soon after representation was terminated. Rather, the motion to add a cross-claim was filed eight months later predicated on deposition testimony garnered long after representation ceased. There is no indication in the record that counsel obtained relevant and damaging information during the limited representation that was not subsequently revealed through Baergen's own deposition testimony. We see no ethical dilemma in allowing counsel to continue representing Clark in matters against defendants. Defendants failed to sustain their burden to show grounds for disqualification. Kubiak, supra at 471. As our Supreme Court stated in Smith v Arc-Mation, Inc, 402 Mich 115, 118; 261 NW2d 713 (1978):
The trial court . . . and the Court of Appeals appear to be saying that if any arguable question can be raised regarding the propriety of a lawyer continuing to appear in a case, an order can be obtained disqualifying that lawyer. That constitutes, in our opinion, a dangerous doctrine. It puts in the hands of an adversary the ability to force an opponent to change counsel if the adversary can advance any arguable grounds in support of disqualification.
We fully agree and conclude that the trial court erred in granting defendants' motion for disqualification.
We affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. The trial court erred in finding no genuine issue of material fact regarding the sexual harassment claims and retaliation claim against MTD. The trial court did not err in finding that Baergen could not be held individually liable for the sexual harassment claims. But the court erred in ruling that Baergen could not be held individually liable for a claim brought under the antiretaliation provision of the CRA. Further, the trial court erred in finding that there was no issue of material fact with respect to the retaliation claim against Baergen.
In Docket No. 243795, we reverse the order disqualifying Clark's counsel because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel's continued participation should a conflict be discovered.
Affirmed in part, and reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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