Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re Richard A. ALCORN and Steven Feola Supreme Court of Arizona, 202 Ariz. 62, 41 P.3d 600 (2002) Case Brief

Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re ALCORN PURPOSE: In Alcorn, the attorneys allowed the judge to preside over a ten day trial without disclosing to the judge that the attorneys had agreed to participate in a sham trial.

Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re ALCORN CAUSE OF ACTION: Disciplinary action against an attorney.

Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re ALCORN FACTS: Alcorn and Feola defended Dr. Bair in a medical malpractice lawsuit in which the hospital was also a defendant. The judge granted the hospital summary judgment, leaving Bair as the sole defendant at trial. At the end of a ten day jury trial, the judge granted the plaintiffs motion to dismiss with prejudice. Later, the judge discovered that the attorneys had agreed to conduct a sham trial, to bring information about the hospital to the judges attention and to persuade the judge to reverse the summary judgment in favor of the hospital.

Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re ALCORN ISSUE: Did Alcorn and Feola have a duty to disclose to the judge their agreement that they participate in a sham trial?

Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re ALCORN HOLDING: We hold today, as strongly as possible, that any agreement that has the potential of affecting the manner in which a case is tried is one that may encourage wrongdoing and must therefore be disclosed to the trial judge and all litigants in the case.

Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re ALCORN REASONING: The court differentiated Bair from several other cases involving disclosure of settlement agreements. The agreement in Damron was disclosed to the judge who held a default hearing rather than a trial. The agreement in Gallagher was disclosed to the judge and the trial was adversarial because one defendant had limited liability while the other defendants liability was unlimited. The Mustang trial was adversarial and the court concluded that the Mustang confidentiality agreement was not fraudulent, collusive, or unethical. (continued)

Copyright 2007 Thomson Delmar Learning. All Rights Reserved. In re ALCORN (continued) In Paynter, the single defendant, abandoned by the insurance company, admitted liability and the court held a short trial on damages. The Paynter trial was adversarial and there was a single defendant, instead of two defendants as in Bair. The Paynter court stated that it would have been better to disclose the agreement to the judge.