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Christina VAN KAMPEN, Plaintiff, v. Katherine GARCIA, Defendant.
¶ 1 Katherine Garcia (“Defendant”) appeals from the trial court's order denying her motion to disqualify the law firm representing Christina Van Kampen (“Plaintiff”) in an action for alienation of affection and criminal conversation. This order is interlocutory, and there is no right to immediate appeal from it. However, in the exercise of our discretion, we issue a writ of certiorari and address the merits of Defendant's appeal. On the merits, we affirm the order of the trial court.
¶ 2 Plaintiff instituted this action by filing a complaint in Union County Superior Court on 27 August 2019, alleging causes of action for alienation of affection and criminal conversation against Defendant, her husband's alleged paramour. Defendant requested an extension to answer Plaintiff's complaint on 3 October 2019, which the trial court granted the same day. Plaintiff filed an amended complaint on 28 October 2019.
¶ 3 On 7 November 2019, James M. Dedman, IV, Plaintiff's current counsel, filed a notice of appearance. Mr. Dedman also requested an extension to answer the amended complaint on behalf of Defendant, which was granted the same day. On 12 November 2019, Mr. Dedman filed a notice of substitution of counsel, joined by Defendant's former counsel, Amy E. Simpson. Defendant answered Plaintiff's amended complaint on 22 November 2019.
¶ 4 On 23 January 2020, Defendant moved to disqualify the law firm representing Plaintiff, Sodoma Law, P.C., on the grounds that Ms. Simpson, her former attorney, had left her former law firm, Hamilton, Steele & Martin, PLLC, and was by then employed at Sodoma Law, P.C., the same firm as Plaintiff's counsel. Defendant argued in the motion that Plaintiff's firm should be disqualified from continuing the representation of Plaintiff because of the imputation of the conflict of interest between Defendant and her former lawyer to the other lawyers at Plaintiff's firm, including Plaintiff's counsel.
¶ 5 The motion came on for hearing on 17 February 2020 before the Honorable Jeffery K. Carpenter in Union County Superior Court. Judge Carpenter heard argument on the motion and testimony from Defendant's former lawyer, Ms. Simpson, and denied the motion in open court. The trial court entered an order to that effect on 2 April 2020.
¶ 6 Defendant entered timely notice of appeal from the trial court's denial of her motion to disqualify.
¶ 7 “Interlocutory orders, or those orders entered in the course of litigation that do not resolve the case and leave open additional issues for resolution by the trial court, are ordinarily not subject to immediate appeal.” Crosmun v. Tr. of Fayetteville Tech. Cmty. College, 266 N.C. App. 424, 432, 832 S.E.2d 223, 231 (2019) (citation omitted). Because there is no appeal of right from an interlocutory order as a general matter, “appeals from interlocutory orders will be dismissed by this Court unless the trial court has entered a certification pursuant to N.C. Gen. Stat. § 1A–1, Rule 54(b), or the appeal affects a substantial right.” In re Pedestrian Walkway Failure, 173 N.C. App. 254, 262, 618 S.E.2d 796, 802 (2005) (citation omitted).
¶ 8 However, there are exceptions to the general rule requiring dismissal of interlocutory appeals. One noted above is for orders affecting a substantial right, if they “will work an injury to [the appellant] if not corrected before an appeal from the final judgment.” Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Another is where the trial court certifies under Rule 54(b) of the North Carolina Rules of Civil Procedure that “(1) the order represents a final judgment as to one or more claims in a multiple claim lawsuit or one or more parties in a multi-party lawsuit, and (2) there is no just reason to delay the appeal.” Hamby v. Profile Prods., 361 N.C. 630, 633-34, 652 S.E.2d 231, 233 (2007) (citing N.C. Gen. Stat. § 1A–1, Rule 54(b)).
¶ 9 A third is provided by N.C. Gen. Stat. § 7A-32(c), which confers “[t]he Court of Appeals [with] [ ] jurisdiction ․ to issue the prerogative writs, including ․ certiorari, ․ in aid of its own jurisdiction, or to supervise and control the proceedings of ․ trial courts[.]” N.C. Gen. Stat. § 7A-32(c) (2019). Our Supreme Court has construed N.C. Gen. Stat. § 7A-32(c) to authorize “the appellate courts of this State in their discretion [to] review an order of the trial court, not otherwise appealable, when such review will serve the expeditious administration of justice or some other exigent purpose.” Stanback v. Stanback, 287 N.C. 448, 453-54, 215 S.E.2d 30, 34-35 (1975). “When [such] discretionary review is allowed, the question of appealability becomes moot.” Id. at 454, 215 S.E.2d at 34 (citation omitted).
¶ 10 Defendant argues that the trial court's denial of her motion to disqualify implicates her “substantial right not to have [her] attorney-client confidences breached to [her] detriment[,]” citing our Supreme Court's decision in Travco Hotels, Inc. v. Piedmont Natural Gas Co., Inc., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992). However, as Plaintiff points out, Travco Hotels does not support this argument. In Travco Hotels, the Supreme Court held that an order denying a motion to disqualify is not immediately appealable, id. at 293-94, 420 S.E.2d at 428-29, rejecting precedent from our Court holding otherwise, id. at 294, 420 S.E.2d at 430. Observing that a “two-part test ha[d] developed” to determine whether an order affecting a substantial right is immediately appealable—i.e., “the right itself must be substantial and the deprivation of that substantial right must potentially work injury ․ if not corrected before appeal from final judgment”—the Court concluded that an “order denying [a] motion to disqualify counsel fails the second prong of the two-part ‘substantial right’ test[,]” id. at 292-93, 420 S.E.2d at 428. The Court reasoned that a party who unsuccessfully moves for disqualification “can adequately protect its right not to have its confidences used against it to its detriment by appealing any adverse final judgment.” Id. at 293, 420 S.E.2d at 428-29.
¶ 11 However, unlike an order denying a motion to disqualify, an order granting a motion to disqualify is immediately appealable. Id., 420 S.E.2d at 429. In Travco Hotels, the Court explained that the reason for treating the grant of a motion to disqualify differently than a denial is that the deprivation resulting from disqualification is truly irreparable:
The granting of a motion to disqualify counsel, unlike a denial of the motion, has immediate and irreparable consequences for both the disqualified attorney and the individual who hired the attorney. The attorney is irreparably deprived of exercising his right to represent a client. The client, likewise, is irreparably deprived of exercising the right to be represented by counsel of the client's choice. Neither deprivation can be adequately redressed by a later appeal of a final judgment adverse to the client.
Id. at 293, 420 S.E.2d at 429. Travco Hotels thus reflects the principle that deprivation of the right to counsel of a client's own choosing entitles the party to an immediate appeal in North Carolina state courts. See id. See also Goldston v. American Motors Corp., 326 N.C. 723, 726-27, 392 S.E.2d 735, 736-37 (1990) (recognizing an appeal of right from the disqualification of counsel previously admitted pro hac vice even though no right of immediate appeal exists from the denial of a motion for admission pro hac vice); State v. Smith, 258 N.C. App. 682, 685-86, 813 S.E.2d 867, 869 (2018) (recognizing an appeal of right from an order disqualifying or recusing a prosecutor). But see Goldston, 326 N.C. at 727-28, 392 S.E.2d at 737 (noting that no corresponding appeal of right exists in federal court).
¶ 12 Defendant does not have an appeal of right from the trial court's order denying her motion to disqualify because the denial did not deprive her of counsel of her choosing. Although Defendant argues that this case is distinguishable from Travco Hotels because Travco Hotels involved a conflict of interest with a former client in a different case and the conflict here is in the same case, we agree with Plaintiff that this distinction is not meaningful. Travco Hotels does not suggest that the origin of the conflict—i.e., the same or a different matter—affects the substantial right analysis. If former counsel uses confidential information for unfair advantage, regardless of whether the information was obtained in the same case or not, the misuse of the information, and a trial court's refusal to disqualify opposing counsel because of an alleged misuse of confidential information, does not deprive the client of counsel of the client's choice. Under the reasoning in Travco Hotels, the kind of irreparable deprivation resulting from disqualification does not result from the misuse of confidential information by former counsel or a trial court's refusal to act on an alleged misuse of confidential information by disqualifying opposing counsel because the harm from former counsel's misuse of client confidences is not truly irreparable.1 See 332 N.C. at 293, 420 S.E.2d at 428.
¶ 13 Thus, just as in Travco Hotels, so too here, Defendant “can adequately protect [her] right not to have [her] confidences used against [her] to [her] detriment by appealing any adverse final judgment.” Id. On appeal from the final judgment, Defendant “may assign error to the denial of [her] motion to disqualify [ ] and the improper use, should there be any, of [her] confidences ․ in the representation of [ ] [Plaintiff].” Id. “If reversible error was committed in the denial of the motion or in the improper use of confidences, or both, then [Defendant] will be given a new trial[.]” Id., 420 S.E.2d at 429. Accordingly, we hold that there is no appeal of right from an order denying a motion to disqualify, even if the conflict originates from the same case. See id., 420 S.E.2d at 428-29.
¶ 14 In the absence of an appeal of right, Plaintiff requests that we issue a writ of certiorari, and reach the merits of Defendant's appeal. As noted above, we have jurisdiction to issue prerogative writs such as certiorari “in aid of [ ] o[ur] jurisdiction, [and] to supervise ․ the proceedings of ․ trial courts[.]” N.C. Gen. Stat. § 7A-32(c) (2019). In the exercise of our discretion, we elect to do so here, and issue a writ of certiorari in the interests of “the expeditious administration of justice[.]” Stanback, 287 N.C. at 453, 215 S.E.2d at 34. We therefore proceed to address the merits.
¶ 15 The question on the merits is whether the trial court abused its discretion by denying Defendant's motion to disqualify the law firm representing Plaintiff because Defendant's former lawyer joined the firm after the lawyer's representation of Defendant concluded. The issue is thus whether Defendant's former lawyer and the law firm representing Plaintiff complied with the North Carolina Rules of Professional Conduct concerning conflicts of interest between lawyers and former clients, and if not, whether the trial court abused its discretion by denying the motion to disqualify in light of any failure to comply with the Rules of Professional Conduct. We hold that it was not error, much less an abuse of discretion, for the trial court to deny the motion.
A. Standard of Review
¶ 16 “It is well settled that the trial court must be given substantial latitude in granting or denying a motion for attorney disqualification[,]” State v. Taylor, 155 N.C. App. 251, 255, 574 S.E.2d 58, 62 (2002) (internal marks and citation omitted), and that “[t]he movant seeking to disqualify his former counsel must meet a particularly high burden of proof[,]” Worley v. Moore, 370 N.C. 358, 364, 807 S.E.2d 133, 138 (2017) (citation omitted). Yet, while “[d]ecisions regarding whether to disqualify counsel are within the discretion of the trial judge, ․ a trial court's exercise of discretion is subject to reversal when the court orders disqualification based on a misunderstanding of the law[.]” Id. at 363-64, 807 S.E.2d at 138 (internal marks and citation omitted). The reason is that “discretionary rulings [ ] made under a misapprehension of the law ․ constitute an abuse of discretion[,]” Crosmun, 266 N.C. App. at 435, 832 S.E.2d at 233 (citation omitted), even though an abuse of discretion is so frequently described as a “ruling [ ] so arbitrary [ ] it could not have been the result of a reasoned decision[,]” Ferguson v. DDP Pharmacy, Inc., 174 N.C. App. 532, 535, 621 S.E.2d 323, 326 (2005) (internal marks and citation omitted). The trial court's factual findings “are binding upon appeal if they are supported by any competent evidence[.]” Taylor, 155 N.C. App. at 255, 574 S.E.2d at 62 (citation omitted). “Competent evidence is evidence that a reasonable mind might accept as adequate to support [a] finding.” City of Asheville v. Aly, 233 N.C. App. 620, 625, 757 S.E.2d 494, 499 (2014) (internal marks and citation omitted).
B. Conflicts of Interest Between Lawyers and Former Clients
¶ 17 Three Rules of Professional Conduct are particularly important to analyzing conflicts of interest between lawyers and former clients and delineating what steps, if any, can and must be taken to protect former clients from the misuse of confidential information by lawyers while also facilitating the mobility of lawyers during their professional lives and safeguarding the right of every client to be represented by the lawyer of the client's choice: Rules 1.6, 1.9, and 1.10.
1. Rule 1.6: Confidentiality
¶ 18 Rule 1.6(a) provides generally that information acquired by an attorney while an attorney-client relationship exists is confidential and cannot be revealed by an attorney unless the client first gives informed consent or “the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” N.C. Rev. R. Prof. Cond. 1.6(a). Paragraph (b) creates exceptions to paragraph (a), providing in relevant part that
[a] lawyer may reveal information protected from disclosure by paragraph (a) to the extent the lawyer reasonably believes necessary:
(1) to comply with the Rules of Professional Conduct, the law or court order;
(8) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
R. 1.6(b) (emphasis added). Under Rule 1.6, a lawyer is prohibited from “(1) revealing confidential information of a client; (2) using confidential information of a client to the disadvantage of the client[;] or (3) using confidential information of a client for the advantage of the lawyer or a third person, unless the client consents after consultation.” Taylor, 155 N.C. App. at 262, 574 S.E.2d at 66.
2. Rule 1.9: Conflicts of Interest with Former Clients
¶ 19 Rule 1.9 delineates the scope of a lawyer's duty to a former client, generally prohibiting a lawyer from representing an adverse party against a former client “in the same or a substantially related matter ․ unless the former client gives informed consent, confirmed in writing.” N.C. Rev. R. Prof. Cond. 1.9(a). Disqualification of an attorney under Rule 1.9 is “permit[ted] ․ if there is a substantial risk that the attorney could use confidential information shared by the client in the former matter against that same client in the current matter.”2 Worley, 370 N.C. at 359, 807 S.E.2d at 135.
Under Rule 1.9(a), a party seeking to disqualify opposing counsel must establish that (1) an attorney–client relationship existed between the former client and the opposing counsel in a matter such that confidential information would normally have been shared; (2) the present action involves a matter that is the same as or substantially related to the subject of the former client's representation, making the confidential information previously shared material to the present action; and (3) the interests of the opposing counsel's current client are materially adverse to those of the former client.
Id. at 364-65, 807 S.E.2d at 138-39.
3. Rule 1.10: Conflict Imputation
¶ 20 Rule 1.10(a) imputes the conflicts of all lawyers associated in practice in a firm to every other lawyer at the same firm: “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9[.]” N.C. Rev. R. Prof. Cond. 1.10(a) (emphasis added). However, paragraph (c) of Rule 1.10 provides an exception from paragraph (a) for former clients of a lawyer who joins a new firm where “(1) the personally disqualified lawyer is timely screened from any participation in the matter; and (2) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule.” R. 1.10(c). As Comment Six to Rule 1.10 explains, “[w]here the conditions of paragraph (c) are met, imputation is removed, and consent to the new representation is not required.” R. 1.10(c) C. 6.3
C. The Trial Court's Order
¶ 21 The question on the merits here is whether Defendant's former lawyer and the law firm representing Plaintiff complied with Rule 1.10(c) when Defendant's former lawyer joined the firm, and if not, whether the trial court abused its discretion in concluding that (1) Defendant's former lawyer “ha[d] complied with Rule 1.10”; (2) Defendant's former lawyer “ha[d] been appropriately screened”; and (3) “no conflict of interest exist[ed] that would disqualify [Plaintiff's law firm] from continued representation of [ ] Plaintiff[.]” We hold that these conclusions were not error, much less an abuse of discretion.
1. Evidentiary Challenges
¶ 22 Defendant does not directly challenge the evidentiary support for any of the factual findings in the trial court's 2 April 2020 order. Instead, Defendant summarizes and characterizes the record evidence to create an alternative narrative to the one credited by the trial court, arguing based on this retelling that the court's conclusions that Defendant's former lawyer had complied with Rule 1.10 and had been properly screened were erroneous, and therefore, that a conflict of interest disqualifying Plaintiff's law firm from continued representation of Plaintiff did exist. We address two of Defendant's challenges to the sufficiency of the evidence to support the trial court's findings of fact.
¶ 23 The trial court found in Finding of Fact 8 that Defendant's former lawyer began her employment with the Charlotte office of Plaintiff's law firm on 6 January 2020 and that she was screened from the case on 15 January 2020 “[a]fter a firm-wide conflict check[.]” Defendant asserted through counsel at the 17 February 2020 hearing on the motion to disqualify that her former lawyer's “plan to transition” to the firm “occurred in November” and argues in her brief on appeal that “the transition was apparently solidified within days” of Defendant terminating the representation in November 2019 and that her former lawyer “accepted the [new] position ․ in December 2019[,]” without citing any evidence in the record in support.
¶ 24 However, at the 17 February 2020 hearing on the motion, Defendant's former lawyer testified that her first day at the Charlotte office of Plaintiff's law firm was 6 January 2020. Plaintiff's counsel represented that counsel worked out of the firm's Monroe office, where the physical files related to the case reside, and that Defendant's former lawyer had never been to the firm's Monroe office. Plaintiff's counsel further represented that the electronic files related to the case were password-protected to deny Defendant's former lawyer and her paralegal access on 15 January 2020, the day she became aware of the prior representation. No record evidence supports Defendant's assertions related to her former attorney forming an association in practice with Plaintiff's firm before 6 January 2020. We therefore hold that Finding of Fact 8 is supported by competent evidence and is binding on appeal.
¶ 25 The trial court made the following findings of fact related to the screening process employed by Plaintiff's firm after the 15 January 2020 conflict check:
9. On January 23, 2020, after discussions with counsel for Plaintiff, counsel for Defendant filed Defendant's Motion to Disqualify, based on the imputed conflict of interest of attorney Amy E. Simpson[, Defendant's former lawyer].
10. On January 28, 2020, attorney Simpson sent correspondence to Defendant, informing her of the change in employment, as required by Rule 1.10 of the North Carolina Rules of Professional Conduct.
12. Attorney Simpson has not provided information related to the present case to any attorney or staff member of [Plaintiff's firm], which she developed or learned during her representation of Defendant, that could prejudice Defendant.
13. Attorney Simpson has not had any discussions related to the present case with Plaintiff's attorney other than communication that attorney Simpson has had with Plaintiff's counsel [ ] regarding Defendant's Motion to Disqualify.
14. Attorney Amy Simpson works in [the firm's] Charlotte office, and Penelope L. Hefner, attorney for Plaintiff, works in [the firm's] Union County office. Attorney Simpson and [A]ttorney Hefner do not work and have not worked in the same office.
15. [Plaintiff's firm's] physical file in this matter is located at the ․ Union office, [and] attorney Simpson has been screened and has not been allowed to have access to the electronic file maintained by [Plaintiff's firm].
¶ 26 Defendant seems to suggest that the evidentiary foundation for the trial court's findings related to the screening of her former lawyer from this case is insufficient because the screen “failed to prevent Plaintiff's counsel from acting on [Defendant's former lawyer's] behalf and communicating directly with [Defendant] in a purported attempt to comply with the requirements of the North Carolina Rules of Professional Conduct.” However, this argument is not really an evidentiary challenge at all. Instead, it is a legal argument based on a false premise: that Plaintiff's counsel acting on behalf of Defendant's former counsel and communicating directly with Defendant in order to comply with the requirements of the Rules of Professional Conduct was a violation of the Rules of Professional Conduct. The conduct Defendant intimates constituted wrongdoing is expressly authorized by the Rules of Professional Conduct. N.C. Rev. R. Prof. Cond. 1.6(b) (“A lawyer may reveal information protected from disclosure ․ to comply with the Rules of Professional Conduct ․ or [ ] to detect and resolve conflicts of interest arising from the lawyer's change of employment ․ if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.”). It would not have been improper for Defendant's former lawyer to dictate a letter related to her change of employment to an associate attorney working with Plaintiff's counsel on this case, and for the letter to be sent on Defendant's former lawyer's behalf to Defendant by the associate or other support staff, as Plaintiff's counsel represented at the 17 February 2020 hearing on the motion to disqualify.
¶ 27 Defendant also seems to argue that the evidentiary foundation for the trial court's finding of fact related to the timeliness of the written notice of the change of her former lawyer's employment was insufficient because (1) the notice was not sent until 28 January 2020; (2) the new employment began on 6 January 2020; and (3) the notice was not sent until after Defendant filed her motion to disqualify and noticed it for hearing. However, Rule 1.10(c) does not establish a bright line rule on the deadline for the provision of the notice it requires, instead simply requiring that the “notice [be] promptly given[.]” R. 1.10(c). The implicit premise of Defendant's argument is that 22 days cannot constitute prompt written notice within the meaning of Rule 1.10(c), which we reject. Whether notice has been promptly given within the meaning of Rule 1.10(c) is a fact specific inquiry, but we hold that the 22-day delay here complied with Rule 1.10(c), particularly for a change of employment by a “very active family law attorney,” as Plaintiff's counsel represented that both she and Defendant's former lawyer are.
2. Legal Conclusions
¶ 28 Having held that the trial court's factual findings related to the screening of Defendant's former lawyer and the timeliness of written notice of the change of her former lawyer's employment were supported by competent evidence, we turn to the trial court's conclusions of law. As noted previously, the trial court concluded in relevant part that (1) Defendant's former lawyer “ha[d] complied with Rule 1.10”; (2) Defendant's former lawyer “ha[d] been appropriately screened”; and (3) “no conflict of interest exist[ed] that would disqualify [Plaintiff's law firm] from continued representation of [ ] Plaintiff[.]” The trial court's findings amply support these conclusions. Because Defendant's former lawyer was promptly screened from the case, never shared any information related to the case with Plaintiff's counsel, and promptly notified Defendant of her change of employment, the trial court's conclusions that she had complied with Rule 1.10 and that “no conflict of interest exist[ed] that would disqualify [Plaintiff's law firm] from continued representation of [ ] Plaintiff” were not error. See N.C. Rev. R. Prof. Cond. 1.10(c) (allowing representation by a firm of an adversary of a former client of a lawyer who becomes associated with the firm where “(1) the personally disqualified lawyer is timely screened from any participation in the matter; and (2) written notice is promptly given to any affected former client”). See also R. 1.10(c) C. 6. (“Where the conditions of paragraph (c) are met, imputation is removed, and consent to the new representation is not required.”).
¶ 29 Defendant argues in the alternative that the trial court's order lacked sufficient findings and conclusions to enable appellate review and that the order should be reversed for additional findings related to the sufficiency of the screening process implemented after her former lawyer's change of employment and the timeliness of the notice of her change of employment. We disagree. Our review here has not been impeded by any lack of specificity in the trial court's findings of fact and conclusions of law. Moreover, there is ample support in the record for the trial court's findings of fact, and these findings support the trial court's conclusions of law.
¶ 30 We hold that the trial court did not err, much less abuse its discretion, in denying the motion to disqualify. We therefore affirm the order of the trial court.
Report per Rule 30(e).
1. By contrast, protection against compelled disclosure of information protected by attorney-client privilege or the work product doctrine can provide the basis for an interlocutory appeal of right. Crosmun v. Tr. of Fayetteville Tech. Cmty. College, 266 N.C. App. 424, 432-33, 832 S.E.2d 223, 231 (2019). While concerns about the protection of client confidences are also prevalent in this context, the rationale for recognizing an appeal of right is different than in an appeal from an order granting a motion to disqualify. See id. Immediate review of the grant of a motion to disqualify is allowed because of a client's right to representation by counsel of the client's choice, Travco Hotels, Inc. v. Piedmont Natural Gas Co., Inc., 332 N.C. 288, 293, 420 S.E.2d 426, 429 (1992), whereas immediate review of an order granting a motion to compel production of information protected by attorney-client privilege or the work product doctrine is authorized because “the privilege belongs solely to the client[,]” In re Miller, 357 N.C. 316, 339, 584 S.E.2d 772, 788 (2003), not “the court or any third party[,]” id. at 338, 584 S.E.2d at 788 (citation omitted) (emphasis in original). Misuse of confidential information by former counsel cannot result in waiver of the attorney-client privilege or the protections of the work product doctrine because only the client can waive the privilege—former counsel, or lawyers associated in practice with former counsel, cannot. See id. at 338-39, 584 S.E.2d at 788. See also Crosmun, 266 N.C. App. at 438-39, 832 S.E.2d at 235 (noting that “no direct analog” exists under North Carolina law to Rule 502(d) of the Federal Rules of Evidence, which “permits ‘a federal court to order that [a] privilege or protection is not waived by [a] disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding.’ ”) (quoting Fed. R. Evid. 502(d)) (internal marks omitted).
2. Paragraph (c) of Rule 1.9 also specifically prohibits a lawyer from(1) us[ing] information relating to [a] representation to the disadvantage of [a] former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or(2) reveal[ing] information relating to [a] representation except as these Rules would permit or require with respect to a client.N.C. Rev. R. Prof. Cond. 1.9(c).
3. Comment Eight to Rule 1.9 cross-references Rule 1.10. N.C. Rev. R. Prof. Cond. 1.9(c) C. 8 (“With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.”).
Judges DILLON and GRIFFIN concur.
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Docket No: No. COA20-439
Decided: July 06, 2021
Court: Court of Appeals of North Carolina.
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