Risk Update

Disqualification News — Hidden Documents? Unwaivable Conflict?

Judge Boots Defense Firm From Medical Malpractice Case Over Fraud Allegations” —

  • “A Fulton County judge has disqualified defense firm Peters & Monyak from defending a medical malpractice case that sparked a mistrial in February after the firm’s possible role in the withholding of a key piece of evidence became an issue.”
  • “On Friday, State Court Judge Eric Richardson ruled that the firm had an unwaivable conflict with the defendants and would need to step aside.”
  • “Lead plaintiffs attorney Lloyd Bell said he had not initially sought to cast suspicion on the defense firm’s involvement in the handling of the medical records, but that its decision to involve itself in the production of documents before the lawsuit was filed and its subsequent insistence that all records were produced placed the firm squarely in the middle of the case.”
  • “Bell’s team then filed a motion to disqualify the firm, ‘arguing that the allegation of negligence or fraud against [it] creates an inherent conflict of interest between defendants and their counsel.’ Peters & Monyak opposed the move and Payne signed a conflict waiver hoping to keep them aboard, hiring Balch & Bingham partner Benjamin Brewton to review the case.”
  • “The allegations that the firm fraudulently concealed documents ‘necessarily raises the issue of a direct and personal conflict of interest between defense counsel and their clients,’ he wrote. The firm ‘attempts to side step the potential conflict of interest issue by asserting that it will never take the position that defendants withheld anything—thereby nullifying any potential conflict,’ he said.”
  • “‘This contention is unavailing, however. Regardless of whether [Peters & Monyak] refrains from accusing their clients of fraudulently or negligently withholding documents, the implication would remain should [it] hold fast to its denial of any alleged fraudulent concealment or inadvertent failure to produce the document on its part,’ Richardson wrote. ‘Thus, a conflict arises by implication.'”
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