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Keith v. Marrs

Court of Appeals of Oklahoma, Division IV

June 14, 2019

RONNIE KEITH, D.O., Plaintiff/Appellant,

          Mandate Issued: 07/10/2019


          Andrew D. Schwartz, WEST, YLLA, GOSNEY, Oklahoma City, Oklahoma, for Plaintiff/Appellant

          George S. Corbyn, Jr., CORBYN, HAMPTON, BARGHOLS, PIERCE, PLLC, Oklahoma City, Oklahoma, for Defendants/Appellees


         ¶1 The present case concerns a law firm that previously served as defense counsel for Ronnie Keith, D.O. (Dr. Keith). That law firm subsequently served as counsel for a plaintiff in a medical malpractice suit in which Dr. Keith was a defendant. Dr. Keith did not seek disqualification of the law firm, and the malpractice suit ultimately settled. Dr. Keith has now filed this suit against that law firm alleging various theories of recovery stemming from the law firm representing the plaintiff in the malpractice action despite allegedly having a conflict in the form of confidential information obtained from Dr. Keith. Dr. Keith appeals from the trial court's order denying his motion to reconsider the trial court's order granting summary judgment to Perry Marrs, Jr., Benjamin Butts, and Butts & Marrs, P.L.L.C. (collectively, Defendants). [1] Based on our review, we affirm.


         ¶2 Mr. Marrs, who had served as Dr. Keith's attorney in prior matters, entered an appearance as attorney for Dr. Keith in a case filed against him in 2009. The plaintiff in the 2009 case -- a nurse -- alleged that Dr. Keith committed an assault and battery against her.

         ¶3 Mr. Marrs asserts that in June 2012, he "sent a letter to Dr. Keith stating that he would be required to withdraw as Dr. Keith's counsel in the [2009] case because Dr. Keith had not paid the retainer or communicated with Mr. Marrs about settlement." An order allowing Mr. Marrs to withdraw as counsel in the 2009 case was filed on July 5, 2012. [2] As stated by Dr. Keith, the 2009 case was later "dismissed by the plaintiff without any further meaningful legal work and without settlement."

         ¶4 In 2011, a separate medical malpractice action was filed. In the 2011 case, the plaintiff sought damages for medical negligence that allegedly occurred in January 2011 when the plaintiff underwent gastric bypass surgery. Dr. Keith was not named as a defendant in the original petition, but was named as a defendant in the amended petition filed in February 2012. The plaintiff in the 2011 case was originally represented by attorney Jason Ryan; however, as stated by Defendants, "[i]n August 2012 [Mr.] Butts advised [Mr.] Marrs that Jason Ryan had asked Mr. Butts if Mr. Butts could get involved representing the plaintiff in the [2011] case[.]" According to Defendants, Mr. Marrs and Mr. Butts "conferred" at that time and "concluded that they could get involved in representing the plaintiff in the [2011] case" which named Dr. Keith as a defendant "because Dr. Keith was a former client in the [2009] case and the [2009] case was completely unrelated to the [2011] case."

         ¶5 Dr. Keith asserts that the August 2012 conversation between Mr. Marrs and Mr. Butts "was not the first such discussion they had regarding the topic," and he points out that in Mr. Butts' interrogatory responses Mr. Butts admits that "he first heard about the [2011] case in January 2012" -- several months prior to Mr. Marrs withdrawing from representation of Dr. Keith in the 2009 case -- "when [Mr. Butts] was contacted by Jason Ryan who was representing the plaintiff and inquired if [Mr.] Butts could get involved." Dr. Keith also asserts that although the two cases are not "the same," they are "'substantially related' for purposes of determining potential conflicts under Rule 1.9, Oklahoma Rules of Professional Conduct," [3] and he asserts "Defendants gained information as a result of representing Dr. Keith in the [2009] case, and in prior cases, that would be useful and relevant to the handling of the [2011] case," "including talking to Dr. Keith about the [2011] case while he was still their client[.]" [4]

         ¶6 Nevertheless, the parties agree that on October 18, 2012, Mr. Butts and Mr. Marrs entered their appearance for the plaintiff in the 2011 case, that Dr. Keith was represented by other counsel in the 2011 case, and that "Dr. Keith never filed a Motion to Disqualify against [Mr.] Butts, [Mr.] Marrs or Butts & Marrs, P.L.L.C. in the [2011] case which Dr. Keith ultimately settled."

         ¶7 In October 2014, Dr. Keith filed the present action against Defendants. In Dr. Keith's amended petition, he sets forth theories against Defendants of breach of fiduciary duty, professional negligence/legal malpractice, false representation/deceit, and intentional infliction of emotional distress.

         ¶8 In January 2018, Defendants filed a motion for summary judgment asserting that

for two separate reasons Defendants are entitled to summary judgment. First, as a matter of law, a lawyer is free to represent a client adverse to the lawyer's former client in an unrelated matter. Second, Dr. Keith failed to file a motion to disqualify Defendants in the [2011] case, and Dr. Keith is therefore precluded as a matter of law from pursuing this malpractice case.

         ¶9 At the hearing on the motion for summary judgment, the trial court stated that "these types of fact patterns" in which an attorney represents a new client that is suing the attorney's former client "just at first blush aren't the easiest for this Court to digest"; however, the court emphasized that "there was nothing done to disqualify the firm of Butts & Marrs in the [2011] case." The court stated, "I just think that is a prerequisite." In its order filed on April 20, 2018, the trial court sustained Defendants' motion for summary judgment.

         ¶10 On April 30, 2018, Dr. Keith filed a motion to reconsider, stating that "[t]he entire reputation of the legal profession, as well as the sanctity of the client's ability to trust their attorney is at stake." He asserted there could be no waiver based on a failure to seek disqualification of Defendants in the 2011 case because "there was no fully informed waiver[.]" Nevertheless, he acknowledged that

When Dr. Keith found out that [Defendants], his former lawyers, were suing him, he told [his counsel in the 2011 case].... The summary judgment evidence shows [his counsel in the 2011 case] told Dr. Keith there was nothing she could do, and did not move to disqualify Defendants.

         Dr. Keith states in his affidavit that his counsel in the 2011 case "advised me... it was allowed and that there was nothing that could be done about it." Dr. Keith asserted, however, that

waiver requires full knowledge and understanding of the facts and rights waived. Taking the facts in Dr. Keith's favor, he is a layperson and does not know or understand his rights, over and above the fact that he does not like his former lawyers suing him. He clearly did not understand, as a matter of law, what he was waiving, so cannot form the intent to waive that right in his mind for summary judgment purposes. [5]

         ¶11 In its order filed on July 30, 2018, the trial court denied Dr. Keith's ...

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