Honig v. Obstetrical & Gynecological Assocs. Tidewater, Inc.

JOHN R. DOYLE III JUDGE

JOHN R. DOYLE III JUDGE Kimberly A. Satterwhite, Esq.
Herbert & Satterwhite, P.C.
7201 Glen Forest Drive, Suite 203
Richmond, Virginia 23226 L. Steven Emmert, Esq.
Sykes, Bourdon & Levy, P.C.
281 Independence Blvd., 5th Floor
Virginia Beach, Virginia 23462 Dear Counsel:

This matter comes before the Court on Defendant's Motion to Disqualify Plaintiff's counsel.

The facts are contained in the attached Stipulation of Facts, supplemented by Plaintiff's exhibit which was a letter demonstrating Ms. Oast's continuing representation of the original Defendants after the nonsuit. Additionally, Mr. Emmert two days ago supplied a revised "hotline ethical opinion".

The Court makes the following findings:

1. Ms. Oast did not have the authority to consent to Mr. Lewis' representing the Plaintiff (given that her former associate, Mr. Favaloro, was then a member of Mr. Lewis' firm). The plain language of Rules 1.7, 1.9 and 1.10 require that "the client consent after consultation". Thus, the Court finds that this is a decision that only the client can make.
2. Lewis relied upon the mistaken belief that Ms. Oast did have authority to consent when he thereafter joined Mr. Petty as co-counsel for the Plaintiff.

3. Mr. Favaloro never provided any information to Mr. Lewis protected by Rules 1.6 and 1.9(c).
4. Mr. Favaloro left Mr. Lewis' firm in January of 2014.
5. If the current situation fell under Rule 1.10(a) (Mr. Lewis and Mr. Favaloro were currently associated in a firm) the Motion to Disqualify would be well taken. But the current situation is governed by Rule 1.10(b). Under this Rule, Mr. Lewis now is not prohibited from representing the Plaintiff.

In making this ruling, the Court is not finding that Mr. Lewis committed an ethical violation while Mr. Favaloro was associated with Mr. Lewis' firm. That determination is not before the Court and seemingly would depend upon the effect of Mr. Lewis' inquiry of Ms. Oast and his reliance upon her apparent authority to acquiesce on behalf of her client.

The Court is dealing only with the present situation. Mr. Lewis and Mr. Favaloro are not associated in a firm and given the stipulation that Mr. Favaloro shared no information whatsoever about the case with Mr. Lewis there is no apparent prejudice to the Defendant from Mr. Lewis' continuing representation of the Plaintiff.

The Court therefore DENIES the Defendant's Motion to Disqualify Messrs. Lewis and Petty. The Court requests that Mr. Emmert prepare and circulate an Order for entry. The Court will expect the Order within three weeks' time.

Very truly yours,

/s/

John R. Doyle, III

Judge JRDIII/nm

EXHIBIT A

VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK CECILIA HONIG, Plaintiff, v. OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES OF TIDEWATER, INC. d/b/a THE GROUP FOR WOMEN, Defendants. LAW NO.: CL13-5248-00

MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL STIPULATIONS

COME now the parties, by counsel, and hereby agree to the following stipulations of fact to be used by the Court in considering the Defendant's Motion to Disqualify Counsel for the Plaintiff:

1. Mark Favaloro was employed by Oast Law Firm during the pendency of the initial Honig lawsuit As such, he deposed several witnesses including Mr. & Mrs. Honig.

2. Mark Favaloro left Oast Law Firm and joined Shapiro, Lewis & Appleton as an associate attorney in February of 2012.

3. The initial Honig lawsuit was non-suited by Order of the Court dated January 15, 2013.

4. During the pendency of the non-suit, Mrs. Honig consented to the association of Shapiro, Lewis &Appleton, specifically, James Lewis as co-counsel for her case.

5. Prior to becoming involved in Mrs. Honig's representation, Mr. Lewis called Carolyn Oast to determine whether there would be any objection to his association in the case.

6. Ms. Oast confirmed with Mr. Lewis by telephone that there would be no objection to his appearance in the case so long as Mark Favaloro was screened from any involvement, communications or otherwise regarding the case.

7. Oast & Lewis had previously reached a similar agreement and arrangement in another malpractice case on which Mark Favaloro had worked while employed by Oast Law Firm.

8. Oast never requested or obtained the consent of Drs. Puritz or Wentworth regarding Lewis' inquiry.

9. Oast never told Lewis that she had not obtained the consent of Drs. Puritz & Wentworth.

10. The agreement between Oast and Lewis was never confirmed in writing.

11. At all times during the pendency of the Honig case with Shapiro, Lewis & Appleton screens were maintained such that Favaloro had absolutely no involvement with the matter whatsoever.

12. Favaloro and Jonathan Petty never discussed the Honig case after Favaloro left Oast Law Firm.

13. The Honig suit was re-filed on July 1, 2013 with Jonathan Petty and James Lewis as co-counsel of record for the Plaintiff.

14. An answer was filed on behalf of the defendants on August 5, 2013 by Herbert & Satterwhite, P.C.

15. No new discussion regarding the waiver of an alleged conflict issue was had between counsel for the plaintiff and Satterwhite.

16. Mark Favaloro left Shapiro, Lewis, Appleton & Favaloro on January 2, 2014.

17. Upon learning of the potential conflict, Kimberly Satterwhite consulted Dr. Puritz and Dr. Wentworth. Dr. Purtiz and Dr. Wentworth advised that they did not and do not consent to waive the conflict

CECILIA HONIG SEEN & AGREED: /s/_________
James C. Lewis, Esq.
Shapiro, Lewis, Appleton & Duffan, P.C.
1294 Diamond Springs Road
Virginia Beach, VA 23455 SEEN & AGREED: /s/_________
Kimberly A. Satterwhite, Esq.
Herbert & Satterwhite, P.C.
7201 Glen Forest Drive
Suite 203
Richmond, VA 23226