Musser v. Youngstown Orthopaedic Assn., Ltd. , 2021 Ohio 4301 ( 2021 )

[Cite as Musser v. Youngstown Orthopaedic Assn., Ltd., 2021-Ohio-4301.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
DOUGLAS H. MUSSER, D.O.,
Plaintiff-Appellee,
v.
YOUNGSTOWN ORTHOPAEDIC ASSOCIATION, LTD.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0024
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 20 CV 310
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Stephen P. Griffin, Griffin Law, LLC, 4051 Whipple Avenue Northwest, Suite 201,
Canton, Ohio 44718, and Atty. Michael J. Kahlenberg, Kahlenberg Law, LLC, 3570
Executive Drive, Suite 216, Uniontown, Ohio 44720, for Plaintiff-Appellee and
Atty. Richard J. Thomas and Atty. J. Michael Thompson, Henderson, Covington,
Messenger, Newman & Thomas Co., L.P.A., 6 Federal Plaza Central, Suite 1300,
Youngstown, Ohio 44503, for Defendant-Appellant.
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Dated: November 29, 2021
D’Apolito, J.
{¶1} Appellant, Youngstown Orthopaedic Associates, Ltd. (“YOA”), appeals from
the February 11, 2021 judgment of the Mahoning County Court of Common Pleas
disqualifying its counsel, Henderson, Covington, Messenger, Newman & Thomas Co.,
LPA (“the Firm”), for a conflict of interest on the motion of Appellee, Douglas H. Musser,
D.O. (“Dr. Musser”). This interlocutory appeal concerns the disqualification of the Firm
as counsel for YOA due to a conflict of interest with its former client, Dr. Musser. The
Firm has previously acted as counsel for Dr. Musser in a civil lawsuit captioned Blue
Diamond Properties, LLC v. Douglas Musser, D.O., Mahoning County Common Pleas
Case No. 2008 CV 03954 (“Other Case”).
{¶2} On appeal, YOA asserts the trial court abused its discretion (1) in finding
that Dr. Musser’s prior representation by the Firm in the Other Case and the Present Case
were substantially related; (2) in disqualifying the Firm without any evidence that it
possessed any confidential information in the Other Case which would prejudice Dr.
Musser in the Present Case; and (3) in applying an inapplicable appearance of
impropriety standard. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶3} Dr. Musser is a board-certified orthopaedic spine surgeon who became an
employee of YOA in September 2005. YOA, a practice group of orthopedic surgeons, is
a for-profit Ohio limited liability company. On May 11, 2010, Dr. Musser sent an email to
Attorney Wade Doerr (a member of the Firm) relating to Dr. Musser’s anticipated buy-in
to YOA, in which he later became a member in September 2010. Dr. Musser asked
Attorney Doerr whether he should hold off signing the buy-in documents during the
pendency of the Other Case proceedings and to run the question by Attorney Richard
Thomas (a member of the Firm). The Firm’s time records reveal that its attorneys
Case No. 21 MA 0024
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conducted hours relating to the Other Case and hours reviewing the 2006 YOA Operating
Agreement relating to the Present Case.1
{¶4} Dr. Musser operated as YOA’s sole board-certified orthopedic spine
surgeon since January 2017. From June 2017 through July 2018, Dr. Musser endured
and survived significant medical issues resulting in seven surgeries. YOA and its
members have been aware of Dr. Musser’s physical challenges. Due to difficulties posed
in recruiting other orthopedic spine talent, Dr. Musser sought to withdraw as a YOA
member on November 1, 2019. YOA rejected Dr. Musser’s written notice of his intent to
withdraw. YOA insisted that if Dr. Musser withdraws, he will be contractually restricted
by a covenant not-to-compete contained within YOA’s Operating Agreement. YOA’s
general counsel, Attorney Nohra, subsequently sent text messages to Dr. Musser
threatening to punish him and prolong this matter as long as possible.
{¶5} On February 10, 2020, Dr. Musser filed a complaint against YOA for
declaratory judgment and breach of contract regarding the enforceability of the non-
compete covenant.2 YOA filed an answer and counterclaim. Dr. Musser filed a reply.
{¶6} On July 6, 2020, Dr. Musser filed a Motion for Partial Summary Judgment
or in the Alternative Preliminary Injunction. YOA filed a motion to strike, requested an
award of attorney fees, and opposed the motion for partial summary judgment.3
{¶7} On August 11, 2020, Dr. Musser’s counsel, Attorney Stephen Griffin with
Griffin Law, LLC, notified the Firm that Dr. Musser did not waive any conflict of interest
arising out of the Other Case. The next day, Attorney Thomas with the Firm refused to
withdraw predicated upon the express representation that the Other Case concerned
claims surrounding a cognovit note and claimed it did not involve YOA.
{¶8} Contrary to Attorney Thomas’s claim, Dr. Musser served Attorney Thomas
and the Firm with a subpoena duces tecum to review all matters pertaining to the Other
1 The 2006 Operating Agreement, a later 2015 Operating Agreement, and all amendments were drafted by
Attorney Jude Nohra (general counsel of YOA and a non-member of the Firm). Attorney Doerr left the Firm
in December 2011. Attorney Thomas is a current member of the Firm.
2The trial court has not yet ruled on the merits of these claims and thus, they are not subject to this appeal.
Dr. Musser is represented by Griffin Law, LLC. YOA is represented by the Firm.
3 The trial court has not yet ruled on Dr. Musser’s motion for partial summary judgment.
Case No. 21 MA 0024
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Case. Attorney Thomas and the Firm moved to quash the subpoena.4 However, the trial
court compelled production of the documents requested on September 25, 2020. The
Firm’s documents in its files relating to the Other Case were produced on September 28
and 29, 2020.
{¶9} Dr. Musser indicated he learned via the Firm’s file documents that the Other
Case directly involved YOA. Dr. Musser specifically learned that the Firm’s
representation of him in the Other Case extended to providing him legal advice regarding
Dr. Musser’s buy-in to YOA and thereby making him bound under YOA’s Operating
Agreement. The Firm’s provision of legal advice to Dr. Musser concerning the YOA
Operating Agreement was further detailed in its billing records (including time spent
reviewing the YOA transaction documents; time spent speaking with respect to Dr.
Musser’s intent to buy-in to YOA; and time spent advising Dr. Musser regarding the YOA
transaction).
{¶10} On October 9, 2020, Dr. Musser filed a motion to disqualify the Firm as
counsel for YOA in the Present Case. Dr. Musser stresses that Attorney Thomas and the
Firm had “changed teams” from providing legal advice to and on behalf of Dr. Musser
regarding the YOA Operating Agreement to now providing representation and legal
advice on behalf of YOA against Dr. Musser to enforce the Operating Agreement. YOA
opposed the motion.5
{¶11} A hearing was held on February 9, 2021. Both parties’ attorneys were
present. Dr. Musser’s representative noted that the Dana test, Dana Corp. v. Blue Cross
& Blue Shield Mut. of N. Ohio, 900 F.2d 882 (6th Cir.1990), and the Ohio Rules of
Professional Conduct apply and that the legal arguments regarding disqualification had
also been argued in briefs. (2/9/2021 Hearing T.p., p. 3, 23).
{¶12} Dr. Musser’s counsel included 11 exhibits and went through the items with
the trial court and opposing counsel, namely: (1) Exhibit 1 – email from Attorney Griffin to
Attorney Thomas dated August 11, 2020 (counsel for Dr. Musser learned for the first time
that Attorney Thomas had previously represented Dr. Musser and so advised that he had
4YOA stresses there was no need for a subpoena because the Firm sent counsel a complete copy of the
case file on a flash drive on September 3, 2020 and that the entire file later shipped via Federal Express.
5 Attorneys Nohra, Doerr, and Thomas filed affidavits.
Case No. 21 MA 0024
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learned this information, that counsel did not learn this voluntarily from opposing counsel
(Attorney Thomas), Dr. Musser was not asked to waive any potential conflict, and Dr.
Musser would not waive any potential conflict) (T.p., p. 4-5); (2) Exhibit 2 – email from
Attorney Thomas to Attorney Griffin dated August 12, 2020 (acknowledging that the issue
of a conflict had been brought up, Attorney Thomas admitted Dr. Musser is a former client
of the Firm (satisfying the first prong of the Dana test), and Attorney Thomas indicating
that the Other Case and the Present Case are unrelated (p. 5-8); (3) Exhibit 3 – Dr.
Musser’s notice of serving subpoena and subpoena dated August 28, 2020 (p. 8-9); (4)
Exhibit 4 – transcript of proceedings regarding YOA production of original Operating
Agreements, Other Case file, and billing records (p. 9-11); (5) Exhibit 5 – email from Dr.
Musser to Attorney Doerr dated May 11, 2010 (affirmative evidence that Dr. Musser, in
addition to whatever representation was occurring with the Other Case, provided the Firm
(to whom Dr. Musser is seeking conflict disqualification) the exact documents at the point
in time where Dr. Musser was about to join YOA) (p. 11-12); (6) Exhibit 6 – the Firm’s
billing records regarding client Dr. Musser (and how the Other Case may affect the
Present Case regarding the buy-in to YOA) (p. 13-14); (7) Exhibit 7 – memorandum from
Attorney Doerr to Attorney Thomas dated May 12, 2010 regarding “Contract Review for
Musser’s Buy-in to Youngstown Orthopaedic” (p. 16-17); (8) Exhibit 8 – correspondence
from Attorney Sfara-Bruno to Attorney Thomas dated October 29, 2008 (regarding the
representation of Dr. Musser, and Attorney Thomas contacting, on behalf of Dr. Musser,
Attorney Nohra (counsel for YOA and the cousin of Attorney Thomas) to discuss various
issues of the YOA buy-in) (p. 17-18); (9) Exhibit 9 – email from Attorney Nohra to Attorney
Kahlenberg dated February 19, 2020, authenticated (Dr. Musser’s attorney claiming that
Attorney Nohra is and was opposing counsel and that is exactly where Attorney Thomas
is now) (p. 19-20); (10) Exhibit 10 – Affidavit of Sanford Watson, Esq. (expert on the rules
of professional conduct); and (11) Exhibit 11 - Curriculum Vitae of Sanford Watson, Esq.
Upon an objection raised by YOA’s counsel, the trial court did not consider Exhibits 10
and 11. (p. 20-23).
{¶13} YOA’s counsel, the Firm, also argued that the Dana test is applicable, not
Kala, Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1 (1998). (p. 25).
YOA’s representative conceded that the first prong of the Dana test is not a contested
Case No. 21 MA 0024
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point. (p. 25). However, YOA’s counsel argued that the second and third prongs of the
Dana test are contested points. (p. 25-26). YOA’s counsel argued at length against the
assertions made by Dr. Musser’s counsel and stressed that the motion to disqualify
should be denied. (p. 24-44).
{¶14} YOA did not request that the trial court issue findings of fact and conclusions
of law. Two days later, the court granted the motion to disqualify finding that the Firm
was precluded from representing YOA due to the substantial relationship between the
Present Case and its prior representation of Dr. Musser in the Other Case. Specifically,
the court stated:
The Court finds that there existed a past attorney-client relationship
between movant and defense counsel dating back to 2010. The Court
further finds that the subject matter of the representation involved the
business relationship between Dr. Musser and Youngstown Orthopaedics,
i.e., Musser’s participation in the practice. The Court concludes that this
matter is substantially related to the instant litigation.
Because of the substantial nature of Dr. Musser’s prior relationship with
Defense counsel, the Court finds that disclosure of shared confidences
must be presumed. Further the Court finds that defense counsel has failed
to rebut this presumption.
Therefore, in order to dispel any appearance of impropriety the Court
disqualifies Attorney Richard Thomas and the law firm of Henderson,
Covington, Messinger [sic], Newman and Thomas, L.P.A.
Motion to Disqualify Granted. There is no just cause for delay.
IT IS SO ORDERED.
(2/11/2021 Judgment Entry, p. 1-2).
Case No. 21 MA 0024
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{¶15} YOA filed an interlocutory appeal and raises three assignments of error6.
STANDARD OF REVIEW
{¶16} Disqualification of counsel in a civil case is a final appealable order.
Wynveen v. Corsaro, 8th Dist. Cuyahoga No. 105538, 2017-Ohio-9170, ¶ 13.
Disqualification of an attorney is a drastic measure that should not be
imposed unless it is absolutely necessary. Spivey v. Bender, 77 Ohio
App.3d 17, 22, 601 N.E.2d 56 (6th Dist.1991). The trial court has wide
latitude when considering a motion to disqualify counsel and is reviewed for
an abuse of discretion. Id. “The term ‘abuse of discretion’ means an error in
judgment involving a decision that is unreasonable based upon the record;
that the appellate court merely may have reached a different result is not
enough.” In re S.S.L.S., 7th Dist. No. 12 CO 8, 2013-Ohio-3026, ¶ 22.
This court has applied a three-part test for disqualification of counsel due to
a conflict of interest: “1) a past attorney-client relationship must have existed
between the party seeking disqualification and the attorney he or she
wishes to disqualify; 2) the subject matter of the past relationship must have
been substantially related to the present case; and 3) the attorney must
have acquired confidential information from the party seeking
disqualification.” City of Youngstown v. Joenub, Inc., 7th Dist. No. 01-CA-
01, 2001-Ohio-3401, ¶ 15, citing Dana [ supra, at] * * * 889[7].
If there is no current or past attorney-client relationship, the motion to
disqualify should be denied. Henry Filters, Inc. v. Peabody Barnes, Inc., 82
Ohio App.3d 255, 260, 611 N.E.2d 873 (6th Dist.1992). However if the court
determines that there is or has been an attorney-client relationship, the
6 YOA filed a motion for stay with the trial court on the same day of filing its notice of appeal with this court.
It does not appear from the docket that the trial court ruled on that motion.
7Dana was adopted by the Supreme Court of Ohio in Kala. Kala has been superseded by the Ohio Rules
of Professional Conduct. See NexGen Energy Partners, LLC v. Reflecting Blue Tech., Inc., 11th Dist.
Ashtabula No. 2016-A-0050, 2017-Ohio-5855, ¶ 28; Starner v. Johnson, 10th Dist. Franklin No. 19AP635,
2020-Ohio-4580, ¶ 10.
Case No. 21 MA 0024
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court must then determine whether a conflict of interest exists; only if a
conflict exists need the attorney be disqualified. Id.It is well established that disqualification of an attorney “should not be based
solely upon allegation of a conflict of interest.” Kitts v. U.S. Health Corp. of
S. Ohio, 97 Ohio App.3d 271, 275, 646 N.E.2d 555 (4th Dist.1994) The
moving party has the duty of showing what the connection between the
cases is and must provide some evidence that a need for the disqualification
exists. Phillips v. Haidet, 119 Ohio App.3d 322, 327, 695 N.E.2d 292 (3d
Dist.1997).
In re P.G.T., 7th Dist. Columbiana No. 14 CO 0034, 2016 WL 3258520, *3 (June 13,
2016).
{¶17} Ohio Rules of Professional Conduct, Rule 1.9(a), discusses an attorney’s
duties to former clients: “Unless the former client gives informed consent, confirmed in
writing, a lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client.”
{¶18} “‘[T]he general rule in disqualification cases has been that, upon proof of a
former attorney-client relationship concerning substantially related matters, disclosure of
confidences is presumed.’” Wynveen, supra, at ¶ 36 (applying Dana), quoting City of
Cleveland v. Cleveland Elec. Illum. Co., 440 F.Supp. 193, 209 (N.D.Ohio 1976).
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT FOUND THAT MUSSER’S PRIOR
REPRESENTATION BY THE FIRM AND THE PRESENT CASE WERE
SUBSTANTIALLY RELATED.
{¶19} YOA stresses the trial court “set out no relevant factual findings or
reasoning” and attacks the trial court’s February 11, 2021 judgment entry. (7/12/2021
Appellant’s Brief, p. 25). The record reveals, however, that YOA did not request that the
court issue findings of fact and conclusions of law. A primary purpose of findings of fact
Case No. 21 MA 0024
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and conclusions of law is “‘to aid the appellate court in reviewing the record
and determining the validity of the basis of the trial court’s judgment.’” Ohio Edison Co.
v. Cubick, 7th Dist. Mahoning No. 20 MA 0029, 2020-Ohio-7027, ¶ 50, quoting In re
Adoption of Gibson, 23 Ohio St.3d 170, 172 (1986).
{¶20} Dr. Musser claims that without written findings of fact and conclusions of
law, YOA “lack[s] a means of illustrating an abuse of discretion” regarding disqualification
of counsel and has waived the issue. Starner, supra, at ¶ 1, 18. Dr. Musser’s reliance
on Starner regarding waiver, however, is misplaced based on the facts presented in the
Present Case. The holding in Starner is that if a party opposes an evidentiary hearing
and does not request findings of fact, those issues will be fatal to an appeal based solely
on the failure to hold an evidentiary hearing or issue findings of fact. Id. at ¶ 1. Unlike
Starner, a hearing was held in the Present Case on February 9, 2021.
{¶21} As indicated by both parties at the hearing before the trial court, the three-
part Dana test for disqualification of counsel due to a conflict of interest applies. (2/9/2021
Hearing T.p., p. 3, 25). Pursuant to the first prong of the Dana test, a past attorney-client
relationship existed between the party seeking disqualification (Dr. Musser) and the
attorney he wishes to disqualify (Attorney Thomas and the Firm). The first prong is “not
a contested point in the Present Case.” (7/12/2021 Appellant’s Brief, p. 11; 2/9/2021
Hearing T.p., p. 25). Pursuant to the second prong of the Dana test, YOA’s assertion that
there is virtually no evidence of a substantial relationship between the Other Case and
the Present Case contradicts the record.
{¶22} Ohio Rules of Professional Conduct, Rule 1.0(n) defines “substantially
related” as:
‘Substantially related matter’ denotes one that involves the same
transaction or legal dispute or one in which there is a substantial risk that
confidential factual information that would normally have been obtained in
the prior representation of a client would materially advance the position of
another client in a subsequent matter.
{¶23} We note it is an obvious conflict of interest for an attorney/law firm to
represent both sides involving the same matter without a waiver. See Bank of New York
Case No. 21 MA 0024
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v. Aponte, 7th Dist. Mahoning No. 12 MA 125, 2013-Ohio-4360, ¶ 2. The Firm represents
a group, YOA, of which Dr. Musser is a member. Therefore, the Firm cannot represent
YOA against one of its own members, i.e., Dr. Musser.
{¶24} In addition, as stated, Dr. Musser indicated he learned via the Firm’s file
documents that the Other Case directly involved YOA. Dr. Musser specifically learned
that the Firm’s representation of him in the Other Case extended to providing him legal
advice regarding Dr. Musser’s buy-in to YOA and thereby making him bound under YOA’s
Operating Agreement. The Firm’s provision of legal advice to Dr. Musser concerning the
YOA Operating Agreement was further detailed in its billing records (including time spent
reviewing the YOA transaction documents; time spent speaking with respect to Dr.
Musser’s intent to buy-in to YOA; and time spent advising Dr. Musser regarding the YOA
transaction). YOA even indicates the Firm was involved in Dr. Musser’s buy-in to YOA
by reviewing documents and advising Dr. Musser as to how the buy-in would impact the
Other Case and vice versa. (7/12/2021 Appellant’s Brief, p. 18). Nevertheless, the record
reveals that YOA’s general counsel, Attorney Nohra, sent text messages to Dr. Musser
threatening to punish him and prolong this matter as long as possible.
{¶25} Thus, the facts support a substantial relationship of a prior attorney-client
relationship. See In re P.G.T., supra, at *3 (applying Dana). Dr. Musser never consented
to the Firm representing YOA against him. See Prof.Cond.R. 1.9(a). The Other Case
establishes that the Firm advised Dr. Musser regarding his legal rights related to joining
YOA as a member. Dr. Musser paid the Firm to review the YOA Operating Agreement
and advise him as to its impact. The Present Case reveals that the Firm is opposing Dr.
Musser on his declaratory judgment and breach of contract action with respect to the
enforceability of the YOA Operating Agreement and is also pursuing a counterclaim
(arising directly out of the YOA Operating Agreement) against him. Pursuant to
Prof.Cond.R. 1.9, once an attorney advises one party to a contract in a matter related
thereto, that attorney cannot subsequently represent a new client in an adverse position
to the former client upon the same contract. See Prof.Cond.R. 1.9, Comment 1 (“Under
this rule, for example, a lawyer could not properly seek to rescind on behalf of a new client
a contract drafted on behalf of the former client.”)
Case No. 21 MA 0024
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{¶26} In addition, YOA indicates the Firm last performed any legal services for Dr.
Musser on February 11, 2013. Since that time, YOA stresses it had a new Operating
Agreement in 2015 and then amended it several times, “[r]egardless of any similarities
between the documents[.]” (8/31/21 Appellant’s Reply Brief, p. 3). YOA claims that the
subsequent amendments of its Operating Agreement eradicates the Firm’s conflict of
interest created by its prior representation of Dr. Musser. It does not. A restrictive
covenant appears in the 2006 YOA Operating Agreement, effective at the time the Firm
represented Dr. Musser concerning his YOA buy-in, as well as in its subsequent
agreement and amendments. At issue, Section 6.5(b) states:
For a period of two (2) years after the effective date of the Withdrawal of a
Member, such Member shall not engage (except with the prior written
consent of the Company, which may be unreasonably withheld) in any
capacity whatsoever, whether as an owner, partner, investor, shareholder,
director, member, manager, officer, employee, consultant, independent
contractor, co-venturer, financier, employer, agent, representative or
otherwise directly or indirectly, in the practice of medicine within a fifteen
(15) mile radius of any practice location of the Company, including without
limitation any hospital or other facility at which one or more Members
practiced medicine at any time during the term of such withdrawing
Member’s membership and/or employment with the Company.
{¶27} Based on the facts presented, the trial court did not abuse its discretion in
finding the existence of a past attorney-client relationship (first prong of the Dana test)
and a substantial relationship between the Firm’s representation of Dr. Musser in the
Other Case and its representation of YOA against Dr. Musser in the Present Case
(second prong of the Dana test).
{¶28} YOA’s first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT DISQUALIFIED THE FIRM
WITHOUT ANY EVIDENCE THAT THE FIRM POSSESSED ANY
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CONFIDENTIAL INFORMATION AS A RESULT OF ITS
REPRESENTATIONS OF MUSSER IN THE BLUE DIAMOND MATTER,
WHICH WOULD PREJUDICE MUSSER IN ANY WAY IN THE PRESENT
CASE.
{¶29} Pursuant to the third prong of the Dana test for disqualification of counsel
due to a conflict of interest, the attorney (Attorney Thomas and the Firm) must have
acquired confidential information from the party seeking disqualification (Dr. Musser).
YOA stresses that Dr. Musser offered no evidence that the Firm possessed any
confidential information in the Other Case to prejudice Dr. Musser in any manner in the
Present Case. On the other hand, Dr. Musser claims that YOA’s Operating Agreement
constitutes confidential information and at a minimum, a presumption of shared
confidences applies.
{¶30} Generally, a presumption of shared confidences examines:
(1) whether a substantial relationship exists between the matter at issue and
the matter of the former firm’s prior representation, (2) if that substantial
relationship is found to exist, whether there is sufficient evidence that the
attorney had no personal contact with or knowledge of the related matter to
overcome the presumption of shared confidences within the former firm,
and (3) if the attorney did have personal contact with or knowledge of the
related matter, whether institutional screening mechanisms have been
adopted by the new firm to prevent the flow of information from the
quarantined lawyer to preserve the confidences of the former client and
avoid imputed disqualification of the entire firm.
Disciplinary Counsel v. Ward, 143 Ohio St.3d 23, 2015-Ohio-237, ¶ 24.
{¶31} YOA stresses here again that this is not a “side-switching” case (subject to
Kala) but rather an “ordinary, garden-variety conflict of interest claim” (subject to Dana).8
8 “Side-switching” involves “when an attorney and his law firm terminate a relationship with an existing client
and, thereafter, the attorney (or other attorneys in that law firm) seeks to represent a new client in an action
that is directly adverse to the former client.” Ward at ¶ 25.
Case No. 21 MA 0024
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(7/12/2021 Appellant’s Brief, p. 21). As stated, both parties indicated at the hearing before
the trial court that the three-part Dana test for disqualification of counsel due to a conflict
of interest applies. (2/9/2021 Hearing T.p., p. 3, 25).
{¶32} A presumption of shared confidences may be applied in matters other than
traditional “side-switching” cases. Applying Dana, a court may find a presumption of
shared confidences. See Carr v. Acacia Country Club Co., 8th Dist. Cuyahoga No.
91292, 2009-Ohio-628, ¶ 26 (applying Dana, the court found a presumption of shared
confidences holding that where an attorney/law firm represented a party in matters
substantially related to those in a present case, a court may presume that the attorney/law
firm benefited from confidential information); Wynveen, supra, at ¶ 36 (applying Dana, the
court held “‘(t)he general rule in disqualification cases has been that, upon proof of a
former attorney-client relationship concerning substantially related matters, disclosure of
confidences is presumed.’”)
{¶33} Based on the specific facts in this case, the trial court acted within its
discretion in applying Dana and finding a presumption of shared confidences. On behalf
of YOA, Attorney Thomas initially claimed the Other Case did not involve YOA. Again,
however, Dr. Musser indicated he later learned via the Firm’s file documents that the
Other Case did involve YOA. Dr. Musser further indicated he specifically learned that the
Firm’s representation of him in the Other Case extended to providing him legal advice
regarding his buy-in to YOA and thereby making him bound under YOA’s Operating
Agreement (a confidential document). The Firm’s provision of legal advice to Dr. Musser
concerning the YOA Operating Agreement was further detailed in its billing records.
{¶34} With the presumption of shared confidences revealed (third prong of the
Dana test), the trial court was within its discretion in finding that the presumption was not
properly rebutted by the Firm. The Firm submitted affidavits of individuals implicated by
the conflict, Attorneys Nohra, Doerr, and Thomas. YOA did not call these individuals live
at the February 9, 2021 hearing. Thus, they were not subject to cross-examination by Dr.
Musser or further inquiry by the trial court. As such, the attorneys’ affidavits in opposition
to the motion to disqualify alone are insufficient to rebut the presumption of shared
confidences. See, e.g., MMR/Wallace Power & Industrial, Inc. v. Thames Associates,
764 F.Supp. 712, 726 (D.Conn.1991).
Case No. 21 MA 0024
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{¶35} YOA’s second assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED WHEN IT APPLIED AN APPEARANCE OF
IMPROPRIETY STANDARD WHICH DOES NOT APPLY.
{¶36} YOA stresses that because this is not a “side-switching” case (subject to
Kala), the trial court abused its discretion in applying an “appearance of impropriety”
standard.
{¶37} As stated, both parties indicated at the hearing before the trial court that the
three-part Dana test for disqualification of counsel due to a conflict of interest applies.
(2/9/2021 Hearing T.p., p. 3, 25). In granting Dr. Musser’s motion to disqualify, the trial
court indicated:
The Court finds that there existed a past attorney-client relationship
between movant and defense counsel dating back to 2010. The Court
further finds that the subject matter of the representation involved the
business relationship between Dr. Musser and Youngstown Orthopaedics,
i.e., Musser’s participation in the practice. The Court concludes that this
matter is substantially related to the instant litigation.
Because of the substantial nature of Dr. Musser’s prior relationship with
Defense counsel, the Court finds that disclosure of shared confidences
must be presumed. Further the Court finds that defense counsel has failed
to rebut this presumption.
Therefore, in order to dispel any appearance of impropriety the Court
disqualifies Attorney Richard Thomas and the law firm of Henderson,
Covington, Messinger [sic], Newman and Thomas, L.P.A.
(2/11/2021 Judgment Entry, p. 1-2).
{¶38} The trial court had obvious concerns regarding the Firm’s attempt to
represent YOA in the Present Case against Dr. Musser. However, the court’s one-line
Case No. 21 MA 0024
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reference to an “appearance of impropriety” does not mean it applied the wrong standard
in reaching its decision. Rather, the facts in this case support an order of disqualification
as the court applied the correct law, Dana and the Ohio Rules of Professional Conduct.
{¶39} Dr. Musser cites to Aponte, supra, at ¶ 11-12, for the proposition that the
“appearance of impropriety” language evolves from the case law merely recognizing that
to dispel an appearance of impropriety, any doubts raised should be resolved in favor of
the party seeking disqualification. Dr. Musser contends, and the record before us
establishes, that is all the trial court did when it applied the correct law at issue, Dana and
the Ohio Rules of Professional Conduct. Regardless of the fact that Aponte is a side-
switching case, this court held, which is also applicable to the case at bar, that it is an
obvious conflict of interest for an attorney/law firm to represent both sides involving the
same matter without a waiver. Aponte at ¶ 2.
{¶40} As addressed, the court did not abuse its discretion in finding the existence
of a past attorney-client relationship (first prong of the Dana test) and a substantial
relationship between the Firm’s representation of Dr. Musser in the Other Case and its
representation of YOA against Dr. Musser in the Present Case (second prong of the Dana
test). And with the presumption of shared confidences established (third prong of the
Dana test), the court was within its discretion in finding that the presumption was not
properly rebutted by the Firm.
{¶41} YOA’s third assignment of error is without merit.
CONCLUSION
{¶42} For the foregoing reasons, YOA’s assignments of error are not well-taken.
The February 11, 2021 judgment of the Mahoning County Court of Common Pleas
disqualifying the Firm for a conflict of interest on the motion of Dr. Musser is affirmed.
Waite, J., concurs.
Robb, J., concurs.
Case No. 21 MA 0024
– 16 –
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 MA 0024