United States District Court, N.D. Mississippi, Oxford Division
ORDER DENYING MOTION TO DISQUALIFY COUNSEL
PERCY UNITED STATES MAGISTRATE JUDGE
has moved to disqualify Wesley Hisaw and his law firm,
Holland Law, P.C., from the representation of Jerry McAdams
and Grandview Lakes Association, Inc. Docket 33. Plaintiff
argues that Mr. Hisaw and Holland Law, P.C. have a conflict
of interest in that Jim Holland, also of Holland Law, P.C.,
represented plaintiff in litigation in the Circuit Court of
Desoto County, Mississippi concerning property which is at
issue in another lawsuit plaintiff currently has pending in
this district. Docket 33, p. 1. He alleges that Holland Law,
P.C. “obtained information for the Plaintiff that
serves, as now hired and representing the defendants in this
cause.” Docket 33, p. 2. Plaintiff further asserts that
Mr. Hisaw's presence in open court at the Case Management
Conference in another case filed by Mr. Alexander and
discussion of the litigation with defense counsel in that
case “create[s] an appearance [of] impropriety so
obviously and so staggering in their corrupt potential, that
this Court must use its power to protect the integrity of the
system . . .” Docket 33, p. 3. Plaintiff argues that
the two cases currently pending in the Northern District of
Mississippi “have many similarities that serves to
unjustly advantage defense counsel's efforts at
litigating the Plaintiff's current case.” Docket
33, p. 2.
response, defendants advise that the previous representation
of plaintiff by Jim Holland occurred sixteen years ago and
“involved a private dispute with a construction company
in the Twin Lakes subdivision concerning alleged damages to
lakes owned by the Plaintiff.” Docket 35, p. 3.
According to defendants, the current litigation concerns
water coming from a lake in the Hills View subdivision and
the two cases have “absolutely nothing to do with each
other.” Id. According to defendants, Mr. Hisaw
has “no information that would be confidential that
could be used in this action.” Defendants' response
further notes that “except for information that is on
public record there is actually no information on the
plaintiff at all currently.” Id. at 4.
Additionally, defendants assert that if any conflict actually
existed with the representation of defendants by either Mr.
Hisaw or Holland Law, P.C., plaintiff waived it by failing to
raise the conflict before the answer, amended complaint,
motion to dismiss and response, initial disclosures,
discovery and other documents were filed. Docket 35, p. 4.
Fifth Circuit has articulated a two part test for
disqualification of an attorney based upon successive
representations. Johnston v. Harris County Flood Control
District, 869 F.2d 1565, 1569 (5th Cir.
1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107
L.Ed.2d 738 (1990). The Johnston Court held
“[a] party seeking to disqualify opposing counsel on
the ground of a former representation must establish two
elements: 1.) An actual attorney-client relationship between
the moving party and the attorney he seeks to disqualify and
2.) A substantial relationship between the subject matter of
the former and present representations.” While
plaintiff has established that he and Jim Holland, one of Mr.
Hisaw's co-workers, did have an attorney-client
relationship, plaintiff has failed to establish the second
prong of the test-that a substantial relationship exists
between the prior litigation concerning a dispute with a
construction company in the Twin Lakes subdivision and the
current litigation concerning water from a lake in the Hills
View subdivision. Based upon the motion filed by plaintiff
and the response filed by defense counsel, it appears Mr.
Hisaw does not possess any confidential information obtained
by Jim Holland in the previous litigation that Mr. Hisaw
could utilize against plaintiff in the present litigation.
Plaintiff's motion to disqualify is therefore DENIED.
Mississippi Supreme Court has held that “[i]n cases
involving successive representations, a party is required to
move for his former lawyer to be disqualified as soon as he
is aware of the conflict, provided the motion for
disqualification or the granting thereof would not place the
former client at an unfair disadvantage.” Williams
v. Bell, 793, So.2d 609, 613 (Miss. 2001); citing
Wilbourn v. Stennett, Wilkinson & Ward, 687
So.2d 1205, 1217 (Miss. 1996). The Wilbourn Court
further noted that “[t]he client cannot hold the right
in reserve for tactical purposes until it would be most
helpful to his position. Failure to move for disqualification
at the earliest practical opportunity will constitute a
waiver.” 687 So.2d at 1217. Plaintiff certainly knew
from the first pleading filed by Mr. Hisaw that he was
employed by Holland Law, P.C. and chose not to raise it at
that point or at the Case Management Conference when it could
be addressed on the record, but instead elected to file a
motion to disqualify months into the litigation. As such,
even if plaintiff could satisfy the two part test for
disqualification of an attorney based upon prior
representation, the failure to move for disqualification
constitutes a waiver.
court has considered plaintiff's concern that defense
counsel was improperly allowed to attend the Case Management
Conference and that communications between defense counsel
were improper. The court routinely sets matters back to back
that involve the same parties or lawyers for the benefit of
the individuals attending the conferences. Before filing his
subsequent motion to disqualify counsel, plaintiff raised no
objection to the settings of the Case Management Conferences
or to the presence of other counsel in the courtroom during
the conferences. Plaintiff's assertion that defense
counsel should not have been present in open court during the
other Case Management Conference or should not have conversed
with counsel in that case is insufficient to support a motion
to disqualify counsel.
separate motion, plaintiff also seeks to stay this case until
the Motion to Disqualify Counsel is decided. Docket 37.
Because the Motion to Disqualify has been ...