REL:03/26/2004 Ex parte Mary
Jane Jones Osbon
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2003-2004
_________________________
_________________________
Ex parte Mary Jane Jones Osbon
PETITION FOR WRIT OF MANDAMUS
(In re: John Doyle Osbon
v.
(Cullman Circuit Court, DR-02-709)
HOUSTON, Justice.
Mary Jane Jones Osbon ("the wife") petitions for a
writ of mandamus directed to the Cullman Circuit Court, ordering that court to
disqualify her husband's attorney because of what she says is an impermissible
conflict of interest. We grant the
petition and issue the writ.
I. Facts and Procedural History
This petition arises from a divorce action
between the wife and John Doyle Osbon ("the husband"). In that action, the husband's attorney, S.
Wayne Fuller, issued a subpoena to the Cullman Area Mental Health Authority
("CAMHA") seeking the wife's
mental-health records. In response,
CAMHA, through its attorney, Dan J. Willingham, filed a motion for a protective
order regarding the wife's records.
Willingham and Fuller are partners in the law firm of Fuller &
Willingham.
On the same day that Willingham filed the
motion for the protective order, he also submitted a proposed protective order
authorizing the release of the wife's mental-health records to Fuller and the
husband. The trial court signed the
proposed order. The motion for the
protective order and the proposed protective order were never served upon the
wife or her attorney; the wife did not learn of the motion until the trial
court had signed the protective order.
After the wife learned that the trial court
had issued the protective order, she filed a motion to disqualify Fuller as the
husband's attorney based on an alleged conflict of interest. In response to her motion, Fuller filed a
general denial. The wife then submitted
a request for admissions to the husband.
In his response to that request, the husband admitted that Fuller
represented him and that Fuller and Willingham were law partners.
The wife then filed a motion to determine
the sufficiency of the husband's answers to the request for admissions. The trial court set a hearing on that matter
and on the wife's motion to disqualify Fuller as the husband's attorney. Two
months before the hearing, the wife submitted a written request for a court
reporter to transcribe the proceeding.
She renewed that request at the hearing.
The trial court overruled her requests, and no court reporter was
present at the hearing.
After refusing to hear any testimony at the
hearing, the trial court denied the wife's motion to disqualify Fuller as the
husband's attorney. The wife petitioned
the Court of Civil Appeals for a writ of mandamus ordering the trial court to disqualify
Fuller as the husband's attorney because of an alleged conflict of
interest. The Court of Civil Appeals
denied the petition without issuing an opinion.
Ex parte Osbon (No. 2020995, Sept. 2, 2003). The wife then filed the petition for a writ
of mandamus currently before this Court.
II. Analysis
"Mandamus
is a drastic and extraordinary writ, to be issued only where there is (1) a
clear legal right in the petitioner to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a refusal to do so; (3) the lack
of another adequate remedy; and (4) properly invoked jurisdiction of the
court."
Ex parte
Integon Corp., 672
So. 2d 497, 499 (Ala. 1995). Mandamus is
"the correct method for seeking review of a lower court's ruling on a
motion to disqualify an attorney." Ex
parte Central States Health & Life Co. of Omaha, 594 So. 2d 80, 81
(Ala. 1992).
The wife contends that an impermissible
conflict of interest exists in this divorce action because the same law firm
represents the husband, on the one hand, who is seeking to obtain her
mental-health records from CAMHA, and CAMHA, on the other, which should be
protecting her records. The wife
contends that she was prejudiced by this conflict because, she says, the
protective order, drafted by Willingham, authorizes the release of the records.1
Rule 1.10(a) of the Alabama Rules of
Professional Conduct provides that "[w]hile lawyers are associated in a firm,
none of them shall knowingly represent a client when any one of them practicing
alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or
2.2." Rule 1.7, Ala. R. Prof.
Cond., provides:
"(a) A lawyer shall not represent a
client if the representation of that client will be directly adverse to another
client, unless:
"(1) the lawyer reasonably believes the
representation will not adversely affect the relationship with the other
client; and
"(2) each client consents after
consultation."
In Fuller's representation of the husband
he subpoenaed the wife's mental-health records from CAMHA. Willingham,
representing CAMHA, moved for a protective order in opposition to the
subpoena. Because Rule 1.10(a) requires
a law firm to be treated as a single attorney, those actions by the two
partners in the same firm are the equivalent of a lawyer's opposing his own
subpoena.
We hold that the fact that the two lawyers
took opposing positions in the same case violated Rule 1.7(a), Ala. R. Prof.
Cond., because a lawyer's opposing his own subpoena is certainly a
"directly adverse" representation and the exception in Rule 1.7(a)
does not apply; neither Fuller nor
Willingham can reasonably believe that their relationships with their
clients would not be adversely affected by their respective positions in this
action. In addition, there is no
evidence indicating that their clients consented to the representation after
consultation as required by Rule 1.7(a)(2).
Furthermore, in his brief before this Court,
Fuller essentially admits that his representation of the husband creates a
conflict of interest when he states that "when a hearing is to be had on
the issuance of a subpoena which would cause Mr. Fuller and Mr. Willingham to
take adverse positions, a conflict would arise sufficient to cause
disqualification." We would add
that representing opposing positions on paper is no less adverse than doing so
in a courtroom.
The husband argues that he is entitled to
the wife's mental-health records because, he says, the wife made her mental
health a material issue in her alimony request made as part of her counterclaim
for divorce. The husband is essentially arguing that he would be entitled to
the wife's records regardless of who his attorney is or who the attorney for
CAMHA is. While it is true that the
trial court should consider several factors, including the health of the
parties, in awarding alimony, a party in an alimony dispute does not have an
absolute right to examine another party's medical records.2
III. Conclusion
Because we find that Fuller's
representation of the husband creates an impermissible conflict of interest, we
grant the petition for the writ of mandamus and order the Cullman Circuit Court
to disqualify Fuller as the husband's attorney in the underlying divorce
action.
PETITION
GRANTED; WRIT ISSUED.
See,
Lyons, Brown, Johnstone, Harwood, Woodall, and Stuart, JJ., concur.
1The wife
and amicus curiae Alabama Disabilities Advisory Program contend that, pursuant
to the Health Insurance Portability and Accountability Act of 1996, Pub. L.
104-191, and the psychotherapist-patient privilege of Ala. Code 1975, §
34-8A-21, the wife's mental-health records should not be released without her
consent.