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In the Estate of C.K.O.

March 19, 2013

IN THE ESTATE OF C.K.O., A MINOR CHILD.


APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DG-07-20 Honorable C.B. McNeil, Presiding Judge

The opinion of the court was delivered by: Laurie McKINNON

March 20, 2013

Submitted on Briefs: January 23, 2013

Filed:

Clerk

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 C.K.O.'s parents, Ann-Marie and Stanley, appeal an order of the District Court for the Twentieth Judicial District, Lake County, denying their motion to disqualify counsel in a personal injury matter. We affirm.

¶2 Ann-Marie and Stanley raise three issues on appeal which we have restated as follows:

¶3 1. Whether the custodial parents of a minor child have the right to demand that a law firm of the parents' choosing represent the claims of the child over the opposition of the guardian ad litem and conservator.

¶4 2. Whether §§ 37-61-403 and 72-5-427, MCA, are unconstitutional as applied in this case.

¶5 3. Whether § 37-61-403, MCA, conflicts with the Montana Rules of Professional Conduct.

Factual and Procedural Background

¶6 In July 2007, Ann-Marie and her unborn child, C.K.O., sustained serious injuries in an automobile collision in Lake County, Montana. C.K.O. was delivered that same day by emergency cesarean section. Soon after the accident, Ann-Marie and her husband, Stanley, hired several attorneys, including Greg Ingraham, to represent both Ann-Marie and C.K.O. in their claims for damages resulting from the accident.

¶7 On November 9, 2007, Ann-Marie and Stanley, dissatisfied with the services of their previous attorneys, executed a contingent fee agreement with the law firm of Viscomi & Gersh (Viscomi) to represent both Ann-Marie and C.K.O. in their claims for damages resulting from the accident. On December 11, 2007, Viscomi filed a Petition for Appointment of Guardian Ad Litem and Conservator for C.K.O. with the Lake County District Court. The petition explained that a significant settlement was expected as a result of the serious injuries C.K.O. suffered in the accident, and that a guardian ad litem (GAL) and conservator were necessary to protect and promote C.K.O.'s interests. The petition requested the appointment of Matthew O'Neill to act as GAL and conservator for C.K.O. The petition was signed by Ann-Marie and Stanley as C.K.O.'s natural parents.

¶8 Ann-Marie's case settled in October 2009. A lawsuit for C.K.O. has not yet been filed because it is too early for C.K.O.'s doctors to provide an opinion on her medical prognosis that would be sufficient for litigation or settlement purposes.

¶9 In November 2011, Ann-Marie and Stanley retained Morales Law Office (Morales) to investigate and pursue legal action against Ingraham and an individual named Edward Engel. Ingraham and Engel had made personal loans to Ann-Marie and Stanley that allegedly were subject to high interest rates and fees. In 2009, Ingraham and Engel presented invoices to Viscomi for payment of these loans. At Ann-Marie's request, Viscomi paid the loans out of her settlement funds. In November 2011, Morales filed a complaint for usury against Ingraham and Engel pertaining to these loans.

¶10 On December 7, 2011, Morales sent a letter to Viscomi advising them that, henceforth, Morales would be representing C.K.O. The letter requested C.K.O.'s file and a statement for services performed so that payment for C.K.O.'s "former" attorneys' work would be honored on a quantum meruit basis.

¶11 Viscomi responded by letter dated January 6, 2012, refusing to withdraw as counsel and stating that O'Neill, C.K.O.'s GAL and conservator, did not believe it was in C.K.O.'s best interests to change attorneys. Morales sent a letter in reply stating that it was the prerogative of C.K.O.'s parents to choose C.K.O.'s counsel. The letter explained that the reason Ann-Marie and Stanley wanted to change counsel was because of their "disappointment and discomfort" over the loans Viscomi paid out of Ann-Marie's settlement funds. The letter again requested all original file materials for C.K.O.

¶12 On January 27, 2012, Morales filed a Notice of Substitution of Counsel with the District Court. A few days later, Viscomi sent a letter to Morales stating that, pursuant to § 75-5-427, MCA, O'Neill had the authority to make decisions as to C.K.O.'s counsel, and that, pursuant to § 37-61-403, MCA, the Notice of Substitution of Counsel was void since it was filed without Viscomi's consent or a court order. Shortly thereafter, O'Neill filed a report with the District Court stating that it was not in C.K.O.'s best interests to change legal counsel at this time. Morales then filed a Motion to Disqualify Counsel challenging O'Neill's authority and asserting that natural parents retain the right to choose which law firm should represent their minor children, regardless of the parents' prior consent to the appointment of a GAL and conservator.

¶13 The parties briefed their positions, and on May 1, 2012, the District Court issued an Order Denying the Motion to Disqualify Counsel. In its order, the court stated that Morales had no authority to sign any documents on behalf of C.K.O. because Morales failed to comply with § 37-61-403, MCA, regarding substitution of counsel. The court explained that § 37-61-403, MCA, provides two means by which a change of attorney may be made: (1) upon the consent of both the attorney of record and the client, or (2) upon an order of the court after an application made by either the attorney of record or the client, and after notice from one to the other. The court stated that Morales' motion failed under subsection (1) of the statute "because it does not contain the consent of both the attorney [Viscomi] and the client, Matthew O'Neill, Conservator, or of the parents of said minor." The court also stated that the motion failed under subsection (2) of the statute "because no change of attorney was made upon order of the Court and no application was made by either the attorney of record or the client."

ΒΆ14 Morales subsequently filed a Motion to Reconsider asking the District Court to clarify its order regarding who was considered the client in this case, C.K.O's parents or C.K.O.'s GAL and conservator. The motion noted the significant constitutional rights of Ann-Marie and Stanley as C.K.O.'s natural parents. The court denied the motion pointing out that "the Montana Rules of Civil ...


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