Dawn G. v. Michael L.G., Unpublished Decision (9-17-2004)
Dawn G. v. Michael L.G., Unpublished Decision (9-17-2004)
Opinion of the Court
{¶ 2} Dawn filed a complaint on June 18, 2003, against Michael G. seeking child support and a portion of medical expenses for their child Dace. Michael answered on July 14, 2003, denying parentage of Dace and requesting that genetic tests be performed. Michael had previously admitted that he was the natural father of Dace, and this was memorialized in a September 7, 1995 judgment entry from the Huron County Court of Common Pleas, Domestic Relations Division.
{¶ 3} A hearing on the complaint was held before a juvenile court magistrate on October 21, 2003. Michael's attorney, Charles Derby, stated that Dawn's attorney, Thomas Freeman, had a potential conflict of interest because Freeman had represented Dawn's first husband in their divorce. Freeman denied any conflict.
{¶ 4} On January 12, 2004, the juvenile court magistrate held what was called a "conference with counsel only." Freeman attended as Dawn's attorney, along with a court appointed attorney, Curtis Koch. The magistrate questioned the need for two attorneys and stated that Dawn could not pick her appointed counsel. Freeman explained that he was willing to represent Dawn "free of charge." Ultimately, the magistrate determined that Dawn could choose her counsel. Nevertheless, in a February 2, 2004 decision adopted by the juvenile court, the magistrate found that "Mr. Freeman did not disclose to the Court or the parties that he represented the plaintiff's former husband in disestablishing parentage in the divorce case. The defendant, Michael [G.], disclosed the conflict to the Court and is not willing to waive any conflict." Because of this, Freeman was not allowed to represent Dawn "due to the conflict of interest due to his representing her ex-husband on the same issue, parentage of Dace * * *."
{¶ 5} Freeman filed "Objections to Magistrate's Decision" on February 4, 2004. Dawn then filed a "Waiver of Potential Conflict of Interest" on February 5, 2004. The same day, the juvenile court filed a judgment that stated, "It is hereby ordered, adjudged and decreed that Mr. Freeman shall not represent Dawn [S.], nka [G.] in any manner due to the conflict of interest due to his representing the plaintiff's ex-husband on the same issue, parentage of Dace [S.] in 1995."
{¶ 6} Dawn now appeals and raises one assignment of error: "The trial court erred in disqualifying plaintiff's counsel on defendant's suggestion because defendant did not establish he had standing to seek disqualification of plaintiff's attorney."
{¶ 7} The decision to grant a motion to disqualify an attorney from representing a client in a civil case is a final appealable order pursuant to R.C.
{¶ 8} The disqualification of an attorney is a drastic measure that should only occur when "absolutely necessary."Spivey v. Bender (1991),
{¶ 9} Ohio courts use the three part federal standard when determining whether a party's chosen attorney should be disqualified. Hollis v. Hollis (1997),
{¶ 10} The trial court determined that a "conflict" existed because Freeman had represented Dawn's former husband on the parentage issue and would now represent her. This ruling, however, overlooked the fact that Dawn's husband was not a party to the case raising the issue of disqualification. No one alleges, and the record does not show, that Freeman ever represented Michael. Thus, Michael does not have standing to assert a conflict of interest or request Freeman's disqualification in this case. Dawn's former husband is the only person who could raise a potential conflict of interest and ask for Freeman's disqualification. The decision of the juvenile court, which found that Freeman should be disqualified from this case, was unreasonable and, therefore, an abuse of discretion. The sole assignment of error is well-taken.
{¶ 11} The judgment of the Huron County Court of Common Pleas, Juvenile Division, is reversed and remanded for further proceedings according to law and consistent with this decision. Appellee is ordered to pay the costs of this appeal specified under App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Pietrykowski, J., Lanzinger, J., Singer, J., concur.
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