KAMARA v. HENSON Et Al.

THIRD DIVISION
MILLER, P. J.,
MCFADDEN, P. J., and MCMILLIAN, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

January 27, 2017

In the Court of Appeals of Georgia
A16A1994. KAMARA v. HENSON et al.

MILLER, Presiding Judge.

Joyce Kamara sued Podiatric Surgeon Mark Henson, along with his practice,

The Outpatient Center for Foot Surgery, Inc., and his corporation, Mark J. Henson,

DPM, P. C. (collectively “Defendants”), alleging that Defendants were responsible

for negligently performing surgical procedures on Kamara’s feet in 2011. Defendants

moved for summary judgment on the sole ground of judicial estoppel, contending that

Kamara’s claims were barred because she failed to list them as an asset in her Chapter

7 Bankruptcy Petition in 2012. Kamara then filed a motion to disqualify Defendants’

lead attorney and his firm (collectively “Defense Counsel”), on the ground that
Defense Counsel had represented Kamara’s Expert in previous medical malpractice

cases more than 20 years ago.1

The trial court granted Defendants’ motion for summary judgment, and denied

Kamara’s motion to disqualify Defense Counsel. After a thorough review of the

record, we reverse the grant of summary judgment to Defendants because Kamara is

not judicially estopped from bringing her claims against Defendants. We affirm the

trial court’s denial of Kamara’s motion to disqualify Defense Counsel, however,

because the trial court did not abuse its discretion in denying the motion in the

absence of an actual conflict of interest or actual impropriety.

Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.
A de novo standard of review applies to an appeal from a [grant or]
denial of summary judgment, and we view the evidence, and all
reasonable conclusions and inferences drawn from it, in the light most
favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280,

281 (682 SE2d 369) (2009).

1
Kamara’s motion also sought, in the alternative, to strike Defendants’ answers
and stay discovery.

2
 So viewed, the limited record before us shows that Kamara first sought

treatment from Dr. Henson in April 2010, and Dr. Henson performed surgeries on

Kamara’s feet on February 23, 2011 and March 9, 2011. Several months later, in

November 2011, Kamara consulted another podiatrist for a second opinion, and

shortly thereafter, she retained counsel.

In March 2012, Kamara filed a Chapter 7 Bankruptcy Petition in the United

States Bankruptcy Court for the Northern District of Georgia. Kamara listed an

unrelated $10,000 personal injury claim in her schedule of personal property, but she

did not list her claims against Defendants. In August 2012, Kamara obtained an

expert affidavit from Podiatric Surgeon Mel J. Colon (“Kamara’s Expert”), and she

filed the instant medical malpractice and negligence suit against Defendants in

January 2013. After Defendants filed their motion for summary judgment on the sole

ground of judicial estoppel, but before entry of the trial court’s summary judgment

order, Kamara amended her bankruptcy petition to include her claims against

Defendants.2

2
The appellate record contains a copy of Kamara’s amended asset schedules,
and the parties conceded at oral argument that Kamara successfully amended her
bankruptcy petition to list her claims against the Defendants.

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 1. Kamara contends that the trial court erred in granting summary judgment to

the Defendants on the ground of judicial estoppel because she successfully amended

her bankruptcy petition to include her claims. We agree.

The essential function and justification of judicial estoppel is to
prevent the use of intentional self-contradiction as a means of obtaining
unfair advantage in a forum provided for suitors seeking justice. The
primary purpose of the doctrine is not to protect the litigants, but to
protect the integrity of the judiciary. The doctrine is directed against
those who would attempt to manipulate the court system through the
calculated assertion of divergent sworn positions in judicial proceedings
and is designed to prevent parties from making a mockery of justice
through inconsistent pleadings.

(Citations and punctuation omitted.) Johnson v. Trust Co. Bank, 223 Ga. App. 650,

651 (478 SE2d 629) (1996). Under Georgia law, “a debtor filing for bankruptcy under

Chapter 7 . . . may voluntarily amend the schedule [of assets] to avoid consequences

such as judicial estoppel.” Benton v. Benton, 280 Ga. 468, 469 (629 SE2d 204)

(2006).

Where a plaintiff, who initially fails to list a claim in her bankruptcy petition,

successfully amends her asset schedules to include that claim, “it cannot be said as

a matter of law that [the] plaintiff intentionally attempted to manipulate and deceive

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the court system, or that [she] was attempting to make a mockery of the system

through inconsistent pleading.” Johnson, supra, 223 Ga. App. at 651. Moreover,

where the plaintiff amends her bankruptcy asset schedules, this Court cannot say that

the plaintiff’s present position is inconsistent with one that she successfully asserted

in a prior proceeding. Id. at 652.

Here, the record shows, and the Defendants conceded during oral argument,

that Kamara successfully amended her bankruptcy asset schedules, while her

bankruptcy case was still open, to list her claims against the Defendants. Accordingly,

Kamara is not attempting to manipulate the court system or take an inconsistent

position and, therefore, judicial estoppel does not bar recovery on her claims.

Johnson, supra, 223 Ga. App. at 651-652; Smalls v. Walker, 243 Ga. App. 453, 456

(2) (532 SE2d 420) (2000).3 Consequently, we reverse the trial court’s order granting

summary judgment to the Defendants and remand this case for proceedings consistent

with this opinion.

2. Kamara also contends that the trial court erred in denying her motion to

disqualify Defense Counsel due to an irreconcilable conflict of interest. We disagree.

3
Compare Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454 (442
SE2d 265) (1994) (judicial estoppel barred plaintiff’s claims where plaintiff failed to
disclose its claims in its amended schedules).

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 We review a trial court’s decision on a motion to disqualify counsel for an

abuse of discretion, and we “must be mindful that the client’s right to counsel of

choice is an important interest which requires that any curtailment of it be approached

with great caution.” (Citations omitted.) Cardinal Robotics, Inc. v. Moody, 287 Ga.

18, 22 (694 SE2d 346) (2010). Accordingly, we look to the facts “peculiar to [this]

case in balancing the need to ensure ethical conduct on the part of the lawyers and

other social interests, which include the litigant’s right to freely chosen counsel.”

(Citations and punctuation omitted.) Duvall v. Bledsoe, 274 Ga. App. 256, 258 (617

SE2d 601) (2005). Moreover, we are mindful that disqualification of chosen counsel

is an extraordinary remedy and should be granted sparingly. Bernocchi v. Forucci,

279 Ga. 460, 463 (2) (614 SE2d 775) (2005).

As the party seeking disqualification, [Kamara] had the burden to
demonstrate to the [trial] court that disqualification was warranted, and
[she] had to do so by showing that the matters embraced within the
pending suit are substantially related to the matters or the cause of
action involved in the previous representation. To be substantially
related for the purpose of assessing the need for disqualification means
that the former case in which the lawyer was involved has both material
as well as logical connections to the pending litigation, and as noted, the
party seeking the disqualification must establish the existence of such
a substantial relationship.

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(Citations and punctuation omitted, emphasis supplied). Cardinal Robotics, supra,

287 Ga. at 21.

Here, it is undisputed that Defense Counsel’s representation of Kamara’s

Expert occurred 20 to 25 years ago and involved a witness, rather than a party to the

present action.4 Moreover, this is not a situation involving representation of a client

against a former client “in an action that is of the same general subject matter, and

grows out of an event that occurred during the time of such representation[.]”

(Punctuation omitted.) Crawford W. Long Mem. Hosp. of Emory Univ. v. Yerby, 258

Ga. 720, 722 (3) (373 SE2d 749) (1988). Nor is this a case involving a party’s

insistence on the counsel of an attorney who has a previous or ongoing relationship

with an opposing party. See Wheat v. United States, 486 U.S. 153, 159 (II) (108 SC

1692, 100 LE2d 140) (1988). Consequently, there is no evidence of harm and

therefore no actual impropriety. See Outdoor Advertising Assn. of Ga. v. Garden Club

of Ga., 272 Ga. 146, 151 (2) (c) (527 SE2d 856) (2000) (Former Attorney General not

4
Defense Counsel’s files relating to the representation of Kamara’s Expert
were destroyed more than 13 years ago; Defense Counsel retained no files or other
information concerning the facts or details of any of the cases involved in that
representation; and Defense Counsel has no memory of the allegations made against
Kamara’s Expert in any of the cases, the defense to those allegations, or the outcome
of those cases.

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disqualified under Yerby, supra, where action arose from event – new legislation –

that occurred after Attorney General left office); Nat. Media Svcs. v. Thorp, 207 Ga.

App. 70, 71 (1) (427 SE2d 61) (1993) (attorney not disqualified where instant action

was neither substantially related to former representation, nor related to same general

subject matter of the former representation).

Kamara argues that Defense Counsel can use confidential information to attack

her expert’s credibility for impeachment purposes. This argument amounts to no more

than a bare assertion that Defense Counsel’s decades-old representation of Kamara’s

Expert is substantially related to the present case, because Defense Counsel has no

memory regarding his representation of Kamara’s Expert and Defense Counsel

retained no files or other information concerning the facts or details of that

representation. This Court has held that a “litigant’s bare assertion of a substantial

relationship between the lawsuits is insufficient to sustain its burden.” (Citation

omitted.) Cardinal Robotics, supra, 287 Ga. App. at 22; Duvall, supra, 274 Ga. App.

at 260 (same). Here, there is no material and logical connection between Defense

Counsel’s decades-old representation of Kamara’s Expert and Kamara’s present

action against Defendants. See Cardinal Robotics, supra, 287 Ga. at 21-22.

Consequently, Kamara has not met her burden of establishing a substantial

8
relationship between the present case and previous representation of Kamara’s

Expert.

Although Kamara relies on the Georgia Rules of Professional Conduct to

support her position, in the absence of evidence to the contrary, this Court will

presume that our State Bar members have properly complied with the Bar’s

disciplinary rules and ethical directives. Gene Thompson Lumber Co. v. Davis

Parmer Lumber Co., 189 Ga. App. 573, 575 (1) (377 SE2d 15) (1988). Moreover, for

Kamara to have standing to move to disqualify Defense Counsel on the basis of a

conflict of interest under the Rules of Professional Conduct, “there must be a

violation of the rules which is sufficiently severe to call in question the fair and

efficient administration of justice, and [Kamara’s] counsel must provide

substantiation.” (Citations omitted.) Bernocchi, supra, 279 Ga. at 463 (2). Kamara has

failed to meet this standard.

Kamara specifically argues that Defense Counsel should have been disqualified

under Model Rule 1.9 (a), which states that “[a] lawyer who has formerly represented

a client in a matter shall not thereafter represent another person in the same or

substantially related matter in which that person’s interests are materially adverse to

the interests of the former client unless the former client gives informed consent,

9
confirmed in writing.” (Emphasis supplied). Ga. Rules of Professional Conduct, Rule

1.9 (a).

Contrary to Kamara’s argument, Defense Counsel’s representation of

Defendants in this case does not violate Rule 1.9. There is no substantial relationship

between this case and Defense Counsel’s decades-old representation of Kamara’s

Expert. Moreover, we note that Defense Counsel disclosed to Defendants the prior

representation of Kamara’s Expert, as well as Defense Counsel’s duty of

confidentiality to Kamara’s Expert, and Defense Counsel informed Defendants that

Defense Counsel is precluded from using any confidential information obtained from

Kamara’s Expert in the present suit. Absent an actual conflict of interest or actual

impropriety, we cannot say that the trial court abused its discretion in denying

Kamara’s motion to disqualify Defense Counsel.5 See Blumenfeld v. Borenstein, 247

Ga. 406, 409-410 (276 SE2d 607) (1981) (mere appearance of impropriety is an

insufficient ground for disqualification). Consequently, we affirm the trial court’s

judgment in this regard.

5
We also reject Kamara’s argument regarding an attorney’s duty of
confidentiality under Model Rules 1.6 (Confidentiality of Information), 1.7 (Conflict
of Interest), and 1.8 (Prohibited Transactions). As set forth above, Kamara is neither
a current, nor a former client of Defense Counsel, and there is no actual impropriety
or conflict of interest in this case.

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 In sum, we affirm the denial of Kamara’s motion to disqualify Defense

Counsel, because there is no actual conflict of interest or actual impropriety. We

reverse the grant of summary judgment to the Defendants on the limited ground of

judicial estoppel, because Kamara successfully amended her bankruptcy petition and,

therefore, is not judicially estopped from bringing her claims against Defendants.

Finally, we remand this case for proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

McFadden and McMillian, JJ., concur.

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