Reed v. Hoosier Health Systems, Inc.

BARNES, Judge,

concurring in result with separate opinion.

Although I concur in result, I disagree with the majority's analysis of Tabbert Hahn's obligation to withdraw. The majority states that conflicts may not be avoided by withdrawal. I agree that there is the potential danger of lawyers dropping a client "like a hot potato" in favor of a more desirable client. Universal City Studios, Inc. v. Reimerdes, 98 F. Supp 2d. 449, 453 (S.D.N.Y.2000) (citation omitted). However, I believe withdrawal must be available to allow lawyers to remedy a conflict that arises after representation has been undertaken. This is in line with Comment 4 of Indiana Rule of Professional Conduct 1.7, which provides, "If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent...."

More importantly, however, I write separately to emphasize that this cireum-stance is one in which we must be wary. The disqualification of attorneys on conflict of interest grounds is a matter that is increasingly being done by members of the bar as a tactical device, in some instances with little to do with our professional ethics. In my opinion, allowing advocates to utilize motions to disqualify as purely strategic tools minimizes the importance of Indiana Rule of Professional Conduct 1.7(a) and it warnings, which are essential to the ability of lawyers to represent the best interests of their clients. Despite my concerns, however, I must concur given our standard of review in this case. I do not believe that the trial court's granting of the Defendant's motion to disqualify amounts to an abuse of discretion.