Tungate v. MacLean-Stevens
Download as PDF
Wordperfect 3
Back to Opinions page

MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 113
Docket:	Cum-96-715
Submitted 
on Briefs:	April 18, 1997	
Decided:	May 22, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and
LIPEZ, JJ. 

ZAGONYI TUNGATE

v.

MacLEAN-STEVENS STUDIOS, INC.

ROBERTS, J.

	[¶1]  MacLean-Stevens Studios, Inc., appeals from the interlocutory
order entered in the Superior Court (Cumberland County, Bradford, J.)
denying its motion to disqualify Zagonyi Tungate's attorney, Jon Holder. 
Because we conclude that the challenged order does not fall within any
exception to our prudential final judgment rule, we dismiss the appeal.  
	[¶2]  MacLean-Stevens Studios, Inc., is a photography business
supplying student photographs to schools in Maine and several other states. 
In April 1995 Holder filed a class action suit against MacLean-Stevens
alleging violations of, among other things, the Maine Unfair Trade Practices
Act, 5 M.R.S.A. § 205-A-214 (1989 & Supp. 1996).  Zagonyi Tungate is
named as the class representative.  The suit arises from MacLean-Stevens's
practice of charging different prices for student photograph packages
depending on whether the school accepts a commission from MacLean-
Stevens.  The class action was brought sometime after Kathleen M. Grover,
Jon Holder's wife and law partner, purchased a photograph package from
MacLean-Stevens for the couple's child attending the middle school in
Falmouth.  The price Grover paid apparently included a commission for the
middle school, a fact allegedly not disclosed to purchasers.  
	[¶3]  In July 1996 MacLean-Stevens filed a motion to disqualify Holder
as counsel for the class on the grounds that he and his wife are likely
witnesses in the case and that they, as members of the class, have a conflict
of interest.  See M. Bar R. 3.4(g)(1)(i), 3.5(b)(1) & 3.4(f)(1).{1}  In response to
the motion, Holder and Grover waived any potential membership in the
class and any award to which they could be entitled, and Tungate gave her
consent that Holder continue as counsel.  After a hearing the court refused
to disqualify Holder, and MacLean-Stevens appeals.  
	[¶4]  MacLean-Stevens erroneously asserts that we have "expressly
declared that denial of a motion to disqualify counsel is entitled to
interlocutory appellate review."  In fact, the only interlocutory appeals in
attorney disqualification cases that we have reviewed on their merits
involved orders disqualifying counsel.  In Adam v. Macdonald Page & Co.,
644 A.2d 461 (Me. 1994), the trial court disqualified the defendant's
counsel because of the presumed receipt of confidential information while
previously representing the plaintiff.  We vacated the order and remanded
for an evidentiary hearing on whether in fact defense counsel had obtained
confidential information that could prejudice the plaintiff.  Id. at 464-65.  In
Casco Northern Bank v. JBI Associates, Ltd., 667 A.2d 856 (Me. 1995), we
affirmed an interlocutory order disqualifying counsel for JBI Associates on
the motion of two codefendants on the ground that counsel had previously
represented them on matters substantially related to the pending litigation.  
	[¶5]  We did not address the final judgment rule in any detail in either
Adam or Casco Northern.  In Casco Northern we quoted Adam in a footnote. 
667 A.2d at 859 n.3.  In Adam we stated in a footnote that Adam did not
dispute that the order was immediately appealable.  644 A.2d at 462 n.5
(citing Cook v. Cook, 574 A.2d 1353, 1354 (Me. 1990), that dealt with the
death knell exception in a different context).  Moreover, these cases are
readily distinguishable from the case at bar.  The disqualification of an
attorney will involve a disadvantage and expense that cannot be remedied
after the conclusion of the case.  No such irreparable harm will occur to
MacLean-Stevens.  This case does not involve the use of confidential
information or any prior representation of MacLean-Stevens.  In this case
there is no likelihood that MacLean-Stevens will suffer any irreparable harm
and thus no extraordinary circumstance that would compel us to expand the
limited exceptions to the final judgment rule.  See Moshe Myerowitz, D.C.,
P.A. v. Howard, 507 A.2d 578, 580-81 (Me. 1986).  
	The entry is:
				Appeal dismissed. 
                                                                                                                              
Attorney for plaintiff:

Jon Holder, Esq.
Holder & Grover, P.A.
P O Box 4256
Portland, ME 04101

Attorney for defendant:

John H. Rich, III, Esq.
Perkins, Thompson, Hinckley & Keddy
P O Box 426
Portland, ME 04112-0426

FOOTNOTES******************************** {1}. M. Bar R. 3.4(g)(1)(i) provides: A lawyer shall not commence representation in contemplated or pending litigation if the lawyer knows, or should know, that the lawyer is likely or ought to be called as a witness. This rule does not apply where the predictable testimony will relate solely to uncontested matters or to legal services furnished by the lawyer, or where the distinctive value of the lawyer in the particular case would make denial a substantial hardship on the client. M. Bar R. 3.5(b)(1) provides: If a lawyer knows, or should know, that the lawyer or a lawyer in the lawyer's firm is likely or ought to be called as a witness in litigation concerning the subject matter of the lawyer's employment, the lawyer and the lawyer's firm shall withdraw representation at the trial unless the court otherwise orders. This rule does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(g)(1)(i). M. Bar R. 3.4(f)(1) provides: Except with the informed written consent of the client, a lawyer shall not commence representation if there is a substantial risk that any financial interest or significant personal relationship of the lawyer will materially and adversely affect the lawyer's representation of the client.