Colorado Supreme Court Disqualifies Marler Clark from Foodborne Illness Suit

A divided Colorado Supreme Court has determined that a trial court did
not abuse its discretion when it refused to grant the motion for pro hac vice
admission filed by Seattle-based law firm Marler Clark to represent a plaintiff
in a foodborne illness lawsuit. In re Liebnow v. Boston Enters. Inc., No.
12SA83 (Colo., decided February 4, 2013).

Counsel for the defendant had apparently consulted with Drew Falkenstein,
a member of the Marler Clark firm, before plaintiff’s counsel asked another
member of the firm to step in and represent the plaintiff. Defense counsel
and Falkenstein “talked about defense counsel’s planned theory of the case,”
advice on a trial expert and Falkenstein’s recommendation that a lettuce
distributor be added as a nonparty defendant after he had researched E. coli
outbreaks using Marler Clark’s publicly accessible database and finding such
an outbreak at another local restaurant chain. “[T]he trial court concluded
that Falkenstein’s consultation with defense counsel created a nonwaivable
conflict of interest that would prohibit him from representing the plaintiff”
under a professional conduct rule and imputed the conflict to the Marler Clark
firm.

The state supreme court majority agreed, finding that the conduct rule “applies not only to attorney-client relationships but also to attorneys’ relationships with third persons.” Citing ABA Opinion 98-411, which cautions that consultations between lawyers may trigger a conflict of interest that could restrict the consulted lawyer’s ability to represent a current or future client, the court found it applicable here where defense counsel “revealed confidential information about her case, including her theory of the case and trial strategy, that could materially limit the consulted attorney’s ability to represent the opposing party in this case due to the consulted attorney’s potential responsibility to keep the information confidential.” Defense counsel changed her theory on Falkenstein’s advice and decided to use the recommended expert. Among other matters, the supreme court also noted that “it would not be possible for Falkenstein to cross-examine the expert without the jury hearing about his recommendation.”

The two dissenting jurists argued that the majority did not give sufficient
consideration to a plaintiff’s choice of counsel or to the “requirement
that significant prejudice be found before disqualification is appropriate.”
According to the dissenters, “the majority erroneously disqualified counsel
in this case and, moving forward, needlessly chills the casual consultations
among attorneys that are so vital to the profession.”