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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Samuel A. Thumma joined.
B R O W N, Judge:
1
Natalie and Daniel Orlando (the Orlandos) seek special
action relief from the superior courts order disqualifying their counsel of
record, the law firm of Warnock, MacKinlay and Carman, PLLC (WMC).
Because we conclude the superior court did not abuse its discretion in
ordering disqualification, we accept jurisdiction and deny relief.
BACKGROUND
2
In May 2008, Sally Hargrove, represented by attorney
Christopher Jensen, filed a lawsuit in Yavapai County Superior Court
against the Orlandos alleging Hargrove suffered serious injuries as a result
of Natalie Orlandos negligence in a car-pedestrian accident (the personal
injury litigation). At the time of the accident, the Orlandos carried liability
insurance through American Family Insurance (American Family) of
$15,000 on the vehicle involved in the accident, which was used for business
and family purposes. The Orlandos were represented by both insurance
defense counsel and WMC.
3
In January 2010, the Orlandos filed suit in Maricopa County
Superior Court against American Family alleging its insurance agent
negligently failed to advise them to obtain more than the statutory
minimum of automobile liability insurance coverage (the American
Family litigation).
4
In September 2010, Hargroves personal injury claim
proceeded to a jury trial. During trial, it was discovered that several jurors
may have engaged in misconduct. To avoid a possible mistrial, the parties
agreed to a settlement conditioned upon the following. If the jury returned
a verdict in favor of Hargrove, judgment would be entered against the
Orlandos, who would then assign all of their claims against their insurer in
the American Family litigation to Hargrove. In exchange for the
assignment, the Orlandos would not seek a mistrial and Hargrove would
not execute on the judgment against the Orlandos. The superior court
In their special action reply, the Orlandos contend that WMC did not
represent them during the settlement negotiations. As support for this
claim, the Orlandos submitted a recent declaration of Johnny J. Sorenson,
the attorney representing American Family in the American Family
litigation. In the declaration, Sorenson avows that he does not know the
exact scope of Warnocks formal relationship with the Orlandos, but
believes his representation of the Orlandos was limited. Significantly,
this information is contrary to Carmans representations at oral argument
before the superior court that WMC handled the settlement negotiations on
behalf of the Orlandos. In addition, this information was not presented to
the superior court. Accordingly, we do not consider the Sorenson
declaration or the Orlandos argument related thereto. See Napier v.
Bertram, 191 Ariz. 238, 239, 6, 954 P.2d 1389, 1390 (1998) (explaining that
appellate courts generally will not consider arguments a party has failed to
raise in the superior court). Based on the foregoing, Hargroves motion to
strike the Sorenson declaration is moot.
1
The Orlandos contend that none of the WMC lawyers may be called
as a witness because the Orlandos have not waived their attorney-client
privilege. Whether the Orlandos waived the attorney-client privilege
through the assignment and covenant is not the issue before us. Even if it
were, an assertion of privilege only protects an attorney from being
compelled to testify regarding attorney-client communications or attorney
work-product and does not create a complete bar insulating an attorney
from being called as a witness. Cf. State Bar of Arizona Ethics Opinion 0011 (Nov. 2000) (stating lawyers must disclose non-privileged but ER 1.6
confidential client documents when directed to do so by a final order
rendered by a court of competent jurisdiction even absent client consent).
Furthermore, the Orlandos argument is contrary to Warnocks
acknowledgement in the cross-motion to disqualify that attorneys for both
parties would be necessary witnesses.
2
:gsh
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