                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                  June 18, 2014 Session

                     ROBERT MALONEY v. GLORIA MALONEY

                      Appeal from the Circuit Court for Shelby County
                       No. CT00323712     Karen R. Williams, Judge




                  No. W2013-02409-COA-R9-CV        - Filed July 17, 2014



Husband and paramour are represented by two partners in the same law firm. Wife sought
to disqualify Husband’s attorney. The trial court granted the motion to disqualify, citing the
inevitability of conflict. Husband appealed. We reverse and remand for an evidentiary
hearing on the motion.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Reversed and Remanded

A NDY D. B ENNETT, J., delivered the opinion of the court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.

Laura D. Rogers, Memphis, Tennessee, for the appellant, Robert Maloney.

Valerie T. Corder, Memphis, Tennessee, for the appellee, Gloria Maloney.

                                         OPINION

       Robert Maloney (“Husband”) filed for divorce from Gloria Maloney (“Wife”) on July
25, 2012. Wife filed a counter-complaint alleging that Husband committed adultery with
Carol Lott (“Lott”)1 and that Husband and Lott were conspiring to deprive Wife of her
equitable share of the marital estate. Wife filed several contempt petitions against Husband,


       1
           Lott is not a party.

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accusing him of wasting marital funds on his paramour, Lott.

       Wife served Lott with a subpoena duces tecum and Lott hired Melissa Berry
(“Berry”), a partner in Rogers, Berry, Chesney & Cannon, PLLC, to represent her. About
three months later, on July 12, 2013, Laura Rogers (“Rogers”), also a partner in Rogers,
Berry, Chesney & Cannon, PLLC, sought to enroll as counsel for Husband. On July 19,
2013, Wife filed a motion to disqualify Rogers on the ground that the firm already
represented Husband’s paramour, thus creating a conflict.

       At a July 16, 2013 hearing, the trial court concluded that permitting legal partners to
concurrently represent both Husband and Lott constituted a conflict of interest and granted
Wife’s motion to disqualify Rogers. Husband sought and was granted a Tenn. R. App. P. 9
interlocutory appeal, which the trial court granted. This court granted the appeal as well.

                                    S TANDARD OF R EVIEW

       A trial court’s disqualification of an attorney is usually reviewed under the abuse of
discretion standard. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001). “A trial court
abuses its discretion whenever it ‘applie[s] an incorrect legal standard, or reache[s] a decision
which is against logic or reasoning that cause[s] an injustice to the party complaining.’” Id.
(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). That standard is not, however,
always applied.

       The same appellate deference is not appropriate when the facts are undisputed
       and the conduct at issue does not directly involve conduct in open court. Trial
       courts enjoy no particular functional advantage over appellate courts in
       formulating and applying the ethical principles governing the attorney-client
       relationship. Accordingly, we will review trial courts’ decisions to disqualify
       a lawyer based on undisputed facts and conduct not taking place in court using
       Tenn. R. App. P. 13(d)’s standard of review.

In re Ellis, 822 S.W.2d 602, 605-06 (Tenn. Ct. App. 1991). “In other words, in such cases,
we presume the disqualification was proper unless the evidence preponderates to the
contrary.” In re Conservatorship for Allen, No.E2010-01625-COA-R10-CV, 2010 WL
5549037, at *6 (Tenn. Ct. App. Dec. 29, 2010).

      Given that the facts are undisputed and the conduct in question did not take place in
open court, we will proceed under the Tenn. R. App. P. 13(d) standard of review.




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                                            A NALYSIS

       Disqualification of an attorney is a drastic remedy. In re Ellis, 822 S.W.2d at 605.
“It invariably causes delay, increases costs, and deprives parties of counsel of their choice.
Courts should, therefore, disqualify counsel with considerable reluctance and only when no
other practical alternative exists.” Id.

        The disqualification was raised by Wife. “‘Where the motion to disqualify comes not
from a client or former client . . . , but from an opposing party, the matter should be reviewed
with caution.’” Pfizer, Inc., v. Farr, No. M2011-01359-COA-R10-CV, 2012 WL 2370619,
at *12 (Tenn. Ct. App. Dec. 14, 2011) (quoting Crown v. Hawkins Co., 910 P.2d 786, 795
(Idaho Ct. App. 1996)). It is difficult to see how Wife has standing to assert a conflict of
interest between Husband’s attorney and Lott’s attorney.2 She is not a client or former client
of Rogers, and it is not clear how she would be negatively affected if Rogers had divided
loyalties between Husband and her law partner representing Lott.

       Tennessee Supreme Court Rule 8, RPC 1.7(a)(2) says there is a concurrent conflict
when “there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.” Wife argues that she is a third person who
is somehow affected, but she has not made her reasoning particularly clear to us, has
presented no evidence, and we see no responsibility Rogers could have to Wife. We find,
on the meager record before us, that Wife does not have standing to seek disqualification of
Husband’s attorney.

        Even assuming standing exists, there is no evidence of a conflict. No proof was taken
on this issue. Only oral argument by the attorneys took place at the hearing. Arguments by
attorneys are not evidence. Elliot v. Cobb, 320 S.W.3d 246, 252 (Tenn. 2010) (Koch, J.
concurring) (citing T.P.I.-Civil 15.03 (2010)). There is no indication in the transcripts of
either the July 26, 2013 hearing or the September 20, 2013 hearing that any of the attorneys
were sworn or testified as witnesses. See Wyatt v. Lassiter, 299 S.W.2d 229, 232 (Tenn. Ct.
App. 1957). Thus, no evidence was introduced. The trial court ruled based on an assumption
of inevitable future conflicts, stating: “I believe that it is improper for a single law firm to
represent a party to a divorce and the paramour because there will be conflicts.” Similarly,
the judge’s order states that “Husband and his paramour each require independent counsel


       2
         The primary focus on the issue of standing is the party, not the merits of any claim. Mayhew
v. Wilder, 46 S.W.3d 760, 767 (Tenn Ct. App. 2001). “[A] court may and properly should refuse to
entertain an action at the insistence of one whose rights have not been invaded or infringed.” Id.
(quoting 59 AM . JUR. 2d Parties § 30 (1987)).

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on what to say, when to say it, how far to say, when to be silent, which will necessarily place
Husband and paramour in conflict one with the other, to preserve each person’s attorney-
client privilege.”

        Given the seriousness of disqualifying the attorney chosen by one of the parties, the
fact that the motion to disqualify was made by the opposing party, the vagueness of the
reasons for disqualification, and the absence of evidence, we must reverse the trial court’s
decision and remand the matter for a hearing at which wife presents evidence of a conflict
which she has standing to raise and Husband and Lott are given an opportunity to present
evidence that there is no conflict, that adequate systems are in place to manage any conflict,
or that Husband and Lott have waived any potential or existing conflicts.

       Both parties have requested attorneys fees on appeal. Both requests are denied.

      Costs of appeal are assessed against the appellee, for which execution may issue if
necessary.




                                                          _________________________
                                                          ANDY D. BENNETT, JUDGE




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