COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61086 RUTH E. BIGHAM, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION SAM BIGHAM, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 24, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations : Division : Case No. D-200102 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Alan I. Goodman 620 Terminal Tower Cleveland, Ohio 44113 For defendant-appellee: Sam H. Bigham 24800 Broadway Oakwood Village, Ohio 44146 -2- NAHRA, P.J.: Ruth Bigham appeals from the trial court's disqualification of her attorney, Alan Goodman, in Bigham's divorce case against her husband, Sam Bigham. For the reasons set forth below, we reverse. Alan Goodman represented Sam Bigham in three workers compensation matters during the period 1978-1984 and in a personal injury claim in 1980. Goodman also prepared Sam Bigham's will in 1987. Goodman and an associate filed the instant divorce complaint on behalf of Ruth Bigham against Sam Bigham in 1990. Sam Bigham subsequently filed a motion to disqualify Goodman due to Goodman's past representation of Sam Bigham. The trial court granted the motion, and Ruth Bigham timely appealed. The standard for disqualification of counsel is as follows: [A]n attorney may not represent a client in litigation against a former client if the former and current representations are both "adverse" and "substantially related." In re Dayco Corporation (S.D. Ohio 1984), 102 Fed. R. Dec. 624, 628; see also White Mtr. Corp., supra, at 67; Phillips v. Investors Diversified (S.D. New York 1976), 426 F.Supp. 208, 211. The foregoing test "fulfills the purpose of enforcing the lawyer's duty of absolute fidelity and guarding against the danger of inadvertent use of confidential information." Phillips, supra, at 211. Worth v. Huntington Bancshares, Inc. (Nov. 25, 1987), Cuyahoga App. No. 52861, unreported, at 59, reversed in part on other grounds (1989), 43 Ohio St.3d 192. The court also stated that "[a] motion to disqualify counsel necessitates judicial balancing of the doctrine of protecting the confidentiality of the -3- attorney-client relationship versus interfering with an individual's freedom to retain counsel of his choice," id. at 58, citing City of Cleveland v. Cleveland Elec. Illum. (N.D. Ohio 1977), 440 F.Supp. 193. In this case, it is undisputed that Goodman's representation of Ruth Bigham is adverse to Sam Bigham. However, the record contains no evidence that Goodman's representation of Ruth Bigham is "substantially related" to his prior representation of Sam Bigham. Sam Bigham's motion to disqualify was premised on the alleged impropriety created by Goodman's representation of Ruth Bigham, in violation of Canon 9 of the Code of Professional Responsibility (avoiding the appearance of impropriety). This court is without jurisdiction to enforce that Code, and alleged violations of it, without more, do not meet the standard for disqualification set forth above. See Crile v. Crile (June 28, 1990), Cuyahoga App. No. 57161, unreported. Sam Bigham's motion included his affidavit, which merely set forth the fact that Goodman had represented him in the past regarding apparently unrelated matters. Bigham's affidavit states that the fact of prior representation alone makes it improper for Goodman to represent Ruth Bigham. It does not set forth how the current representation is related to the past relationship. Alan Goodman also submitted an affidavit which states that he discussed no confidential matters in his prior -4- representation of Sam Bigham which are relevant to his current representation of Ruth Bigham. Accordingly, the trial court erred in disqualifying Goodman since there is no evidence that his representation of Ruth Bigham in this divorce case is substantially related to his prior representation of Sam Bigham. Reversed. -5- This cause is reversed for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .