2. Attorneys_disqualification_material witness
A disqualification of defendant's counsel was not an abuse of discretion in an action by a
prior attorney to recover fees for representation in a domestic action because the evidence
showed that defendant's attorney was a necessary and material witness in her case where
defendant alleged that plaintiff did not provide any value or benefit for many of the charges
claimed for services rendered; the nature and value of plaintiff's legal services were a contested
issue; and defendant's deposition testimony indicated that her present attorney may have relevant
information regarding the nature and value of plaintiff's legal fees obtained prior to his
representation of defendant. Rule of Professional Conduct 3.7.
3. Civil Procedure_findings_not requested, not required
An order disqualifying counsel was not vacated for lack of findings where neither party
requested findings of fact or conclusions of law.
Hahn & Chastain, P.A., by William J. O'Malley, for defendant.
Robinson & Lawing, L.L.P., by James R. Theuer, for plaintiff.
WYNN, Judge.
Defendant Cynthia B. Sams argues on appeal that the trial
court erroneously disqualified her attorney from representing her
because the evidence did not show that her attorney was a necessary
and material witness for her case, and the trial court made no
findings of fact to support its decision. After careful review, weconclude the trial court did not abuse its discretion.
The pertinent facts indicate Robinson & Lawing, L.L.P., a law
firm, represented Ms. Sams in a domestic action from October 1997
to July 1998. Thereafter, from July 1998 to October 2000, several
different attorneys represented Ms. Sams, including Russ Kornegay,
J. Calvin Cunningham, Lori Watson Berger, and the Causey Law firm.
(See footnote 1)
From November 2000 until July 16, 2001, William J. O'Malley
represented Ms. Sams in her domestic action.
(See footnote 2)
This matter arises from an action by Robinson & Lawing to
recover legal fees ($30,229.69 plus interest) from Ms. Sams.
During a July 2002 deposition, Ms. Sams stated that she had
discussed Robinson & Lawing's representation with Mr. O'Malley
prior to his representation in this matter. Based upon those
statements, Robinson & Lawing moved to disqualify Ms. Sams'
counsel. This appeal followed from the trial court's order
disqualifying Mr. O'Malley from representing Ms. Sams.
___________________________________________________
On appeal, Ms. Sams first contends the trial court erroneously
disqualified her defense counsel because Robinson & Lawing failed
to show her defense counsel was a necessary and material witness in
her case. We disagree.
“Decisions regarding whether to disqualify counsel are withinthe discretion of the trial judge and, absent an abuse of
discretion, a trial judge's ruling on a motion to disqualify will
not be disturbed on appeal.” Travco Hotels v. Piedmont Natural Gas
Co., 332 N.C. 288, 295, 420 S.E.2d 426, 430 (1992).
(See footnote 3)
[2] In this case, the nature and value of Robinson & Lawing's
legal services are a contested issue. Indeed, as an affirmative
defense, Ms. Sams alleged “Robinson & Lawing did not provide any
value or benefit for many of the charges it claims for services
rendered, and Ms. Sams asserts lack of consideration as a defense
to the debt.”
During Ms. Sams' deposition, her testimony indicated that her
attorney, Mr. O'Malley, may have relevant information regarding the
nature and value of Robinson & Lawing's legal fees obtained prior
to his representation of Ms. Sams in this case. According to Ms.
Sams: (1) she became reacquainted with Mr. O'Malley in December
1998; (2) Ms. Sams and Mr. O'Malley married in August 2001; (3)
between December 1998 and August 2001, she told Mr. O'Malley that
Mr. Grantham, an attorney in Robinson & Lawing's firm, quit and
that he had not done a very good job; (4) she showed Mr. O'Malleycorrespondence between Robinson & Lawing and Ms. Sams; and (5) she
asserted attorney-client privilege as to other complaints she made
to Mr. O'Malley regarding Robinson & Lawing's provision of legal
services.
(See footnote 4)
Shortly after the deposition, Robinson & Lawing moved to
disqualify Mr. O'Malley based upon Revised Rule of Professional
Conduct 3.7 which in pertinent part states:
(a) A lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness
except where:
(1) the testimony relates to an uncontested
issue;
(2) the testimony relates to the nature and
value of legal services rendered in the case;
or
(3) disqualification of the lawyer would work
substantial hardship on the client.
In its motion, Robinson & Lawing recounted Ms. Sams' deposition
testimony, indicated it considered defense counsel a necessary and
material witness, and stated its intention to call defense counsel
as a witness during the trial. The trial court's order
disqualifying counsel set a date for defense counsel's deposition,
continued the matter for an additional sixty days from the trial
date to allow Ms. Sams to retain replacement counsel, and stated
that defense counsel could move for reconsideration of the
disqualification order after the deposition. Accordingly, on these
facts, we conclude the trial court did not abuse its discretion indisqualifying counsel.
(See footnote 5)
[3] Ms. Sams also argues the trial court's order should be
vacated for want of findings of fact. Under N.C. Gen. Stat. § 1A-
1, Rule 52(a)(2)(2001), “findings of fact and conclusions of law
are necessary on decisions of any motion . . . only when requested
by a party and as provided by Rule 41(b).” See also Allen v.
Wachovia Bank & Trust Co., N.A., 35 N.C. App. 267, 269, 241 S.E.2d
123, 125 (1978)(stating “absent a request for findings of fact to
support his decision on a motion, the judge is not required to find
facts ... and it is presumed that the Judge, upon proper evidence,
found facts to support his judgment”). Our review of the
transcript indicates neither party requested the trial court render
findings of fact or conclusions of law. Accordingly, we find this
argument to be without merit.
Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
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