The Court of Appeals of Ohio Second Appellate District Miami County (“Ohio Appellate Court”) ruled in its June 1, 2018 Opinion that the plaintiff’s medical malpractice lawyer cannot continue to represent her in an Ohio medical malpractice case, stating “in light of the role played by [the plaintiff’s] counsel in the events underlying the complaint, counsel’s continued representation of [the plaintiff] in this case would be inappropriate.”
The defendant orthopedic surgeon had performed surgery on the plaintiff’s lower back after which she experienced complications. A second surgery did not improve her condition. The woman subsequently filed her Ohio medical malpractice complaint alleging negligence, fraudulent concealment, failure to obtain informed consent, and battery.
The Ohio medical malpractice plaintiff subsequently filed a second amended complaint in which a claim was added for spoliation, citing evidence obtained through discovery purportedly indicating that the defendant orthopedic surgeon had destroyed a key document in anticipation of litigation: that the defendant destroyed a document memorializing a meeting attended by the defendant, the plaintiff’s medical malpracice attorney, and one of the plaintiff’s friends, allegedly because the destruction of the document would produce a defense for the medical malpractice claims against him.
The defendant then filed a motion to disqualify the plaintiff’s attorney from continuing to represent her, which the trial court granted. The plaintiff appealed, arguing that the trial court’s decision should be reversed because it derives from the trial court’s faulty determination that her attorney would be a necessary witness at trial.
Ohio Appellate Court Opinion
Prof. Cond. Rule 3.7(a) provides, “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness” unless: (1) the lawyer’s testimony “relates to an uncontested issue”; (2) the lawyer’s testimony relates to “the nature and value of legal services rendered in the case”; or (3) the lawyer’s “disqualification * * * would work substantial hardship on the client.”
The Ohio Appellate Court stated that the question before it was whether the plaintiff’s medical malpractice lawyer’s counsel is a “necessary witness,” or in other words, whether the testimony to be offered by the plaintiff’s counsel is “admissible and unobtainable through other * * * witnesses.”
The Ohio Appellate Court stated that the spoliation claim arises from a meeting attended by the defendant, the plaintiff’s counsel, and a friend of the plaintiff during which the defendant maintains that the plaintiff’s counsel told him to take no further action with respect to the plaintiff’s treatment unless instructed by the plaintiff’s lawyer (the plaintiff had executed a durable power of attorney for health care authorizing her lawyer to make medical decisions on her behalf). The plaintiff denied that her lawyer made these statements and accused the defendant of destroying a contemporaneous written record of the meeting in order to perpetuate a deliberate deception designed to disrupt her case.
The Ohio Appellate Court stated that the plaintiff’s inclusion of a claim for spoliation against the defendant in her second amended complaint led the trial court to conclude not only that her counsel would be a necessary witness at trial, but also that counsel’s continued representation would undermine the integrity of the proceedings.
The Ohio Appellate Court stated that question of what the plaintiff’s lawyer said or did not say during the meeting is a pivotal question of fact, and the plaintiff acknowledges that she seeks to prove the substance of the conversation between her lawyer and the defendant by relying entirely on the testimony of the plaintiff’s friend who attended the meeting. The Ohio Appellate Court stated that “even assuming for sake of argument that [the friend’s] testimony would not violate the letter of the hearsay rule, her testimony in the context of [the plaintiff’s] spoliation claim would, in our view, violate the spirit of the rule.”
The Ohio Appellate Court continued: “we agree with the trial court that because [the plaintiff’s] counsel participated in the events underlying the complaint, counsel’s continued representation of [the plaintiff] would not be appropriate. Notwithstanding that Prof. Cond. Rule 3.7(a) ‘does not [reflexively] render a lawyer incompetent to testify as a witness on [a client’s] behalf,’ the rule does permit a court ‘to exercise its inherent power of disqualification to prevent a potential violation of [the] rules governing attorney conduct’ … [the plaintiff’s] counsel would effectively be testifying by proxy were he permitted to examine [the plaintiff’s friend who attended the meeting] about statements he himself made or did not make, which among other things, would seem to violate [the defendant’s] right to confront and cross-examine adverse witnesses.”
The Ohio Appellate Court further held: “the underlying involvement of [the plaintiff’s] counsel, to whom [the plaintiff] had given a durable power of attorney for health care, creates the possibility of a conflict of interest for purposes of Prof. Cond. Rule 1.7. See also Prof. Cond. Rule 1.14 and 3.4.”
Source Weadock v. Taha, 2018-Ohio-2108.
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