Opinion:Bd. of County Comm’rs v. Assoc. of County Comm’rs of Okla. Self-insured Group, 2021 OK 15
Subject matter:Ethics, Attorney Disqualification
Date Decided:April 6, 2021
Trial Court:Oklahoma County (Ogden, J.)
Route to this Court:Appeal of trial court’s of Motion to Disqualify attorney; Retained by OKSCT on Court’s own motion
Facts:The Board of County Commissioners of Harmon County filed an action against their insurer, ACCO-SIG. Subsequently, ACCO-SIG sought to disqualify the Board’s lawyers under OPRC Rules 1.9 and 1.10 based on an allegation that one of the Board’s lawyers had a conflict of interest because he had previously represented ACCO-SIG in a substantially similar matter four years earlier. This case and the prior case both involved ACCO-SIG’s handling of an insured’s claims related to suits by an inmate against law enforcement officers for alleged sexual assualt/rape while in custody. The trial court held disqualification hearings and filed an order denying the Motion to Disqualify. 
Standard of Review:Review for clear error with respect to the trial court’s findings of fact; De novo with respect to the trial court’s application of ethical standards. 
Analysis:The denial of a Motion to Disqualify is immediately appealable under Title 12 O.S. §953. “The standard for disqualifying counsel is whether real harm to the integrity of the judicial process is likely to result if counsel is not disqualified (emphasis added). This is a high standard to meet. The burden rests with the moving party to establish the likelihood of harm by a preponderance of the evidence” Contrast this to the “appearance of impartiality” standard which applies to judicial disqualification. 
“A lawyer who repeatedly handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type, even though the subsequent representation involves a position adverse to the prior client.” 
Matters are “substantially related” for purposes of Rule 1.9 if (1) they involve the same transaction or legal dispute, or (2) if there is a substantial risk that confidential factual information obtained in the prior representation would materially advance the now opposing client’s position in a subsequent matter. 
While the two cases at issue here are “similar” for purposes of disqualification, similarity does not end the inquiry. The question is whether or not, because of the similar representation, “the attorney gained knowledge of any material or confidential information which would jeopardize the integrity of the judicial process.” The record in this case shows that during the prior representation of the insurer the lawyer at issue had access to nothing more than general information about the insurer’s policies and had no knowledge of specific facts which would require disqualification in this case. 
Vote:7-0. Opinion by Kauger, J. Kane, V.C.J. Winchester, Edmonson, Combs, Gurich, and Rowe, JJ. concur. Darby, C.J. did not participate. 
Other: Appellant’s motion to place on the Court’s “fast track” docket pursuant to Okla. Sup. Ct. Rule 1.17(III) was granted May 29, 2020.