WA Legal Roundup: Division III
Ah, the love/hate relationship between insurance companies and plaintiff attorneys. Alright, let’s be honest…there is NO LOVE!
Nammathao and her 10 year old daughter were passengers in a one-car rollover accident in 1995. Nammathao was in a persistent vegetative state and her daughter was seriously injured. The driver only had a $50,000 insurance policy and that was paid. There was also a $100,000 underinsured policy through American States Insurance Company (ASIC). Mr. Greenlee took on representation of both injured parties and guardian ad litems were appointed to both.
ASIC filed an interpleader action to tender its entire policy limits ($100,000) on June 28, 2007. This is 12 years after the accident. The victims filed a counterclaim against ASIC for bad faith and requested interest on the policy limits from 1997. This is where the love shines through! ASIC filed an answer to the claim for interest alleging that the delay was the fault of attorney Greenlee AND filed a third party action against Greenlee for malpractice (even though Greenlee didn’t represent ASIC). ASIC also moved to disqualify Greenlee based on a conflict of interest (i.e., representing two victims who both had claims for a set amount).
The third party complaint was dismissed and Greenlee obtained waivers on the conflict of interest. Then ASIC filed a second motion to disqualify Greenlee based on the fact that Greenlee was a witness to the bad faith claim in that it was his actions that caused the delay in tendering the policy limits. Right back at you! The victims then moved to have ASIC’s counsel disqualified because he was a witness on their bad faith claim. The trial court granted ASIC’s motion and disqualified Greenlee.
Greenlee sought discretionary review by the Court of Appeals and it was granted. An attorney can be removed from litigation when he or she is a necessary witness, but a court must make appropriate findings to justify that action. ASIC also claimed that Greenlee should be disqualified for not providing competent representation. CAN YOU FEEL THE LOVE YET?!
ATTORNEY AS WITNESS: The relevant parts of RPC 3.7:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: . . . . (3) disqualification of the lawyer would work substantial hardship on the client; or (4) the lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate.
Division III applied analysis it used in a previous disqualification case:
A motion for disqualification must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client.
Division III determined that this case did not meet these standards based on the current record. However, if Greenlee attempted to testify on behalf of his clients (at this point in time he had not been named as a witness by the victims), then the motion to disqualify could be renewed. They also found that the record was not sufficient to support the claim of incompetence. THEN THEY ALL HAD A PICNIC.