CLOUGH v. RICHELO
Ellington, Judge.
This appeal arises from a legal malpractice suit filed by Walter Clough against attorney Thomas E. Richelo and his law firm, Richelo, Morrissey & Wright, P.C. (collectively, "Richelo"). Richelo filed a motion with the DeKalb County Superior Court to disqualify Clough's attorney, A. Todd Merolla, and Merolla's law firm, Raiford & Dixon, LLP, from representing Clough in the malpractice litigation. The trial court granted Richelo's motion, and Clough appeals,[1] contend
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ing the court abused its discretion in disqualifying Merolla and the law firm. We find the trial court abused its discretion in disqualifying Merolla and, therefore, reverse. The challenge to the disqualification of the law firm, however, is moot.
By way of background, the record in this case shows that, in 1994, Clough worked as a sales consultant for Main Line Corporation and Noe Santamarina (collectively, "Main Line"). Three years later, Clough directed Main Line to begin making commission payments to Clough Marketing Services, Inc. ("CMS"), which he had recently incorporated in Georgia. Clough's wife owned 100 percent of the shares of CMS. In 1999, Clough sued Main Line in the Fulton County Superior Court, seeking to recover over $1,200,000 in sales commissions (hereinafter, the "Main Line suit"). Clough hired Richelo to represent him in the Main Line suit, and Richelo filed the suit, naming both Clough and CMS as plaintiffs.
In March 2002, while the Main Line suit was still pending, Clough's wife moved to another state and asked Clough for a divorce. Richelo attempted to mediate the couple's disagreement regarding how to proceed with the Main Line suit so that he could continue to represent both Clough and CMS as joint plaintiffs in the suit. Richelo notified the couple that he could not proceed with the Main Line suit until they resolved their disagreement over how to proceed with the suit. In January 2003, Richelo advised Clough that Clough might not have an individual claim against Main Line and that a jury could find that any award from the Main Line suit would be payable only to CMS and its sole shareholder, Clough's wife. Richelo then notified Clough that, unless Clough signed a new agreement that would allow him to continue to represent both Clough and CMS as joint plaintiffs, he (Richelo) was going to withdraw from his representation of Clough, but was going to continue to represent CMS in the Main Line suit. Clough refused to sign the agreement.
Clough retained another attorney, Merolla, who called Richelo in June 2003 and demanded that he withdraw from his representation of CMS in the Main Line suit and return the case files to Clough so Merolla could prepare for trial. According to Clough, Richelo refused to withdraw as CMS's counsel and refused to return Clough's files unless Clough paid him approximately $15,000 in outstanding legal expenses. Clough filed a motion to compel the return of the files with the Fulton County Superior Court. Richelo withdrew from the Main Line case in July 2003, but did not return Clough's case files. The Fulton County court granted Clough's motion to compel in December 2003.
Clough then filed the instant action against Richelo in DeKalb County, claiming that Richelo had committed legal malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, and...
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