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COA: Attorney DQs limit trial advocacy only

By: David Donovan//August 25, 2020//

COA: Attorney DQs limit trial advocacy only

By: David Donovan//August 25, 2020//

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An attorney who was disqualified from representing his client at a trial for which he would be a necessary witness could nevertheless still represent the client for purposes other than trial advocacy, the South Carolina Court of Appeals has ruled.

Fine Housing Inc. purchased two parcels of land in 2013, with attorney William Sloan Jr. conducting the closing. One of the properties had been scheduled for a foreclosure sale before the closing, which was expedited in order to avoid the sale. FHI asked the lender to postpone the foreclosure sale so that it could have more time for the closing, but attorney Charles Altman, who represented the lender, denied that request.

After the closing, Sloan discovered state and federal tax liens on the properties in the name of the seller’s late husband and learned that another person claimed he had a lease and a right of first refusal on the other property. Altman represented FHI in multiple ensuing legal disputes and brought a legal malpractice action against Sloan on FHI’s behalf. In his answer, Sloan named Altman as a witness.

After a deposition, Sloan moved to disqualify Altman as FHI’s counsel, arguing that Altman was a necessary fact witness in the case. FHI argued that the matters at issue were uncontested and disqualification would cause FHI substantial hardship, but Dorchester County Circuit Court Judge Carmen T. Mullen agreed that Altman was a necessary fact witness and granted the motion to disqualify Altman from all representation of FHI.

But Chief Judge James Lockemy, writing for a unanimous Court of Appeals panel in an Aug. 19 decision, found that while the record supported the conclusion that Altman was a necessary witness, the circuit court nevertheless abused its discretion by disqualifying Altman from all aspects of representation because the relevant rule, Rule 3.7 of the Rules of Professional Conduct, applies only to trial advocacy.

Lockemy noted that the circuit court’s order didn’t expressly prohibit Altman from representing FHI on other matters, but it also didn’t expressly outline any limits on the disqualification, and both parties asserted that the disqualification was complete.

The prevailing justification for disqualifying counsel as a necessary witness is to prevent jury confusion, Lockemy wrote, but if the attorney is no longer an advocate at trial, the propensity for jury confusion is greatly diminished. South Carolina’s appellate courts had never directly addressed the issue before, but other jurisdictions that have identical rules to South Carolina’s Rule 3.7 have held that the rule doesn’t prohibit an attorney from representing the client in other roles outside of trial advocacy.

Charles S. Altman and Meredith L. Coker of Charleston and Patrick John Norton, of Chicago represented Fine Housing. Altman declined to comment on the ruling, citing the ongoing nature of the litigation, and said that he would be filing a motion for reconsideration.

Stephanie Holmes Burton of Gibbes Burton in Spartanburg represented Sloan. Burton could not be reached for comment on the ruling.

The 10-page decision is Fine Housing, Inc. v. Sloan (Lawyers Weekly No. 011-057-20). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

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