## Facts

- On June 21, 2007, a Carnegie Companies, Inc. representative engaged Robert Karl, a lawyer at Ulmer & Berne L.L.P., by telephone to assist with the purchase of property in Marietta, Ohio.
- In August 2007, Carnegie began negotiating to buy an office building in Twinsburg, Ohio from Summit Properties, Inc.
- Summit was represented in the Twinsburg transaction by Stuart Laven, another Ulmer & Berne lawyer working in a different office; Carnegie’s president negotiated directly with Laven.
- Karl did not formally end his representation of Carnegie in the Marietta matter when the Twinsburg negotiations began.
- When Laven undertook Summit’s representation, he did not run a conflicts check; later, a conflicts check showed recent billing to Carnegie, but the lawyers did not treat the overlap as a conflict requiring client consent or withdrawal.
- Carnegie and Summit entered into a purchase contract for the Twinsburg building, and Carnegie deposited $50,000 in earnest money with an escrow company.
- Carnegie later rescinded the transaction and demanded return of the earnest money; Summit refused to authorize release of the funds.
- Carnegie sued Summit in the Summit County Court of Common Pleas seeking to recover the escrowed earnest money; Summit answered and asserted counterclaims (including contract-related and fraud-based claims) through Laven and Ulmer & Berne.
- As the dispute proceeded, Karl continued work connected to Carnegie’s Marietta matter, including reviewing environmental testing information during the same general time period that Laven was acting for Summit against Carnegie.
- Carnegie moved to disqualify Ulmer & Berne on the ground that the firm was simultaneously representing two clients with directly adverse interests without consent, contrary to Ohio Prof.Cond.R. 1.7.
- After an evidentiary hearing, the trial court disqualified Ulmer & Berne from representing Summit and also ruled Carnegie was entitled to attorney fees and expenses incurred in bringing the disqualification motion, with a later hearing to set the amount.
- Summit appealed the disqualification ruling and the fee ruling.

## Issues

1. Whether the appellate court had jurisdiction to review the trial court’s ruling that Carnegie was entitled to attorney fees and expenses for the disqualification motion when the trial court had not yet determined the amount.
2. Whether the trial court abused its discretion by disqualifying Ulmer & Berne for a concurrent conflict of interest under Ohio Prof.Cond.R. 1.7 based on the firm’s simultaneous representation of Summit against Carnegie while Carnegie was still a firm client.

## Decision

- The court dismissed the appeal as to attorney fees and expenses because a ruling finding fee entitlement but reserving the amount for later determination is not a final, appealable order.
- The court affirmed the disqualification order, holding the trial court did not abuse its discretion in disqualifying Ulmer & Berne where the firm concurrently represented clients with directly adverse interests without the consent required by Prof.Cond.R. 1.7.

## Legal Principles

- A law firm has a concurrent conflict of interest when it represents one client in a matter directly adverse to another current client, unless the requirements for client consent under Ohio Prof.Cond.R. 1.7 are satisfied.
- For conflict analysis, a client remains a current client until the representation is actually ended; the absence of a formal termination and continued legal work and billing can support a finding of ongoing representation.
- Trial courts have discretion to disqualify counsel to protect the fairness and integrity of proceedings when a concurrent, direct-adversity conflict is shown; appellate review is for abuse of discretion.
- An order disqualifying counsel is a final, appealable order in Ohio.
- A trial court’s determination that a party is entitled to attorney fees, when the amount is left for a later hearing, is generally not final and cannot be appealed until the amount is set.

## Conclusion

The Ninth District held it lacked jurisdiction to review the trial court’s fee-entitlement ruling because the amount of fees and expenses had not been determined, but it affirmed the disqualification of Ulmer & Berne after concluding the firm’s simultaneous representation of Summit against Carnegie, while Carnegie remained a current firm client, created a direct-adversity concurrent conflict under Prof.Cond.R. 1.7 and the trial court acted within its discretion in ordering disqualification.


Carnegie Cos., Inc. v. Summit Properties, Inc., 918 N.E.2d 1052 (2009)