C. MICHAEL HILL, Magistrate Judge.
Pending before the Court are the Motions to Disqualify Counsel filed by the plaintiff, Holly Leleux-Thubron (Thubron") [rec. doc. 100] and Iberia Parish President, Errol Antoine "Romo" Romero ("Romero"), who is not a party to this litigation. [rec. doc. 99].
By these Motions, Thubron and Romero seek to disqualify defense counsel, J. Phil Haney ("Haney") formerly District Attorney for the 16
For those reasons set out below, the Motions to Disqualify Counsel [rec. docs. 100 and 99] are
The general facts regarding the merits of this case have been set forth in previous rulings issued by this Court and will not be set forth in detail again in this ruling. Essentially, Thubron claims that the named defendant Council Members denied her procedural due process by voting to defund her position as a Maintenance Superintendent for Iberia Parish, without affording her notice and an adequate opportunity to be heard. The facts applicable to the instant Motions to Disqualify Counsel are discussed below.
Both Thubron and Romero seeks an order of this Court disqualifying defense counsel from representing the named defendants in this proceeding. They argue that the representation of the named defendants by Haney and McGoffin is in violation of the Rules of Professional Conduct as that representation is directly adverse to their purported client, Romero, thereby presenting an unwaivable conflict of interest. More specifically, they primarily argue that a concurrent conflict of interest exists because defense counsel took the deposition of Romero in this case and have declared their intention to use and publish this deposition, which has prompted the filing of a Motion for Protective Order by Romero pursuant to Rule 26(c), FRCP. The Movants' contentions are primarily based on Article IX, § 9-01 of the Iberia Parish Home Rule Charter which provides that the Iberia Parish District Attorney, formerly Haney, "shall serve as the legal advisor to the Parish Council, Parish President and all Parish departments, offices and agencies."
As was the case with the plaintiff's prior Motion for Sanctions filed pursuant to 28 U.S.C. § 1927, none of the named defendants, McGoffin's and Haney's clients in this case, or anyone authorized by them, has appeared, argued or even suggested that McGoffin or Haney have a conflict, much less a conflict which is unwaivable. To the contrary, one of defense counsel's clients, Council Member Broussard, testified in support of defense counsels' argument at the hearing of the Motion for Sanctions.
Since the filing of the instant Motions, the current District Attorney for the Sixteenth Judicial District, Martin B. Duhe ("Duhe"), has been substituted as counsel of record for Haney. [rec. doc. 115]. Where appropriate, the Court has construed the arguments against representation by Haney as arguments to disqualify Duhe. For the sake of clarity, however, the Court in this Ruling will refer to Haney as defense counsel, not Duhe.
A plaintiff has standing to seek disqualification of defense counsel even though she is not an aggrieved client because a plaintiff's attorney is authorized to report any ethical violations committed in the case. Hughes v. Pogo Producing, Co., 2009 WL 1938988, * 3 (W.D. La. 2009) citing Williamson Tobacco Corp., et al. v. Lockwood-Greene Engineers et al., 563 F.2d 671, 673 (5
Romero, on the other hand, is not a party to this litigation. Thus, the above cited jurisprudence does not expressly apply to him. Romero was not permitted to intervene in this action as no grounds for his requested intervention exist. Rather, Romero's sole involvement in this case is that of Movant for a protective order, in which Romero seeks to prevent the use of the deposition in anticipated unrelated litigation and the general publication and disclosure of his deposition which was taken by defense counsel in connection with this case.
In support of standing, Romero cites numerous cases. However, in each of these cases, the movant was a party to the lawsuit.
Romero also relies on United States v. Gopman, 531 F.2d 262 (5
Since the issuance of Gopman and Estate Theatres, however, this reporting requirement has changed. Attorneys are no longer required to report disciplinary violations to the Court. See Local Rule 83.2.10(2), Rules of the United States District Court for the Western District of Louisiana (requiring that complaints of attorney misconduct initiated by one other than a judge be filed in writing under oath with the Clerk of Court, who refers the Motion to the Chief Judge, or his designee for inquiry); Rule 8.3(a), La. Rules of Prof. Conduct ("A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct . . . shall inform the Office of Disciplinary Counsel."); see also Model Rules of Prof. 1 Conduct R. 8.3 & cmt. 3 (2014) ("A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct . . . shall inform the appropriate professional authority"; "A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances."). Because an attorney is no longer obligated to bring another attorney's alleged disciplinary violation to the Court's attention, the reasoning supporting the ruling of Gopman is no longer valid.
For these reasons, the Court finds that Romero lacks standing to seek disqualification of defense counsel in this case. In so finding, the Court notes that even if this Court were to find that Romero has standing to seek disqualification of defense counsel, because Romero's arguments mirror those presented to this Court by Thubron, his Motion would nevertheless be denied for the reasons set forth below.
To the extent that Romero argues that this Court should sua sponte address his Motion pursuant to the Court's general supervisory authority over attorneys involved in cases before the Court, that argument is likewise unpersuasive. While it is clear that this Court has general supervisory jurisdiction to act upon a properly filed Motion for Disqualification, that jurisdiction does not confer standing on Romero to raise the issue. Furthermore, it is well settled that the Court's inherent powers, including the inherent authority to regulate the conduct of attorneys practicing before this Court, "ought to be exercised with great caution" and, accordingly, "must be exercised with restraint and discretion." Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) quoting Ex parte Burr, 9 Wheat. 529, 531, 6 L.Ed. 152 (1824) and citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980).
Under the facts of this case, and given the resolution of the claims presented to this Court by the plaintiff, Thubron, the Court finds that a sua sponte exercise of its inherent powers with respect to Romero's Motion is not warranted.
The Western District of Louisiana has adopted The Louisiana Rules of Professional Conduct to govern the ethical practice of attorneys practicing before this court. Hughes v. Pogo Producing Company, 2009 WL 1938988, *2 (W.D. La. 2009) citing LR 83.2.4W (1999) and Evans v. North Street Boxing Club, 83 F.Supp. 741, 743 (W.D. La.1999).
The rule of disqualification is not mechanically applied in the Fifth Circuit. FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1314. (5
Furthermore, although it is "generally proper" for an opposing party to bring conflict of interest matters to the court, such objections should be viewed with caution because they can be misused as a tactical weapon or as a technique to harass. FDIC, 50 F.3d at 1315 and fn. 14.
Thubron argues that under Rule 1.7 of the Louisiana Rules of Professional Conduct
In the Court's review of the record, the undersigned cannot find that an actual concurrent conflict of interest exists in this case. Thubron bases her argument on her belief that Romero is a current "client" of Haney and McGoffin. Thubron relies on Article IX, § 9-01 of the Iberia Parish Home Rule Charter ("the Charter") which provides that the Iberia Parish District Attorney, formerly Haney, "shall serve as the legal advisor to the Parish Council, Parish President and all Parish departments, offices and agencies" and correspondence between defense counsel and Romero.
While the Charter may designate the Iberia Parish District Attorney as the "legal advisor" to the Parish President, it is clear from the record before this Court, that Romero is not, in fact, an actual "client" of either Haney or McGoffin in this case and that neither Haney or McGoffin has ever actually, in fact, been a "legal advisor" to Romero in this case or in any matter substantially related to this case. In short, it is clear that the Council Members accepted the representation provided to them by virtue of the Charter; it is equally clear that Romero did not.
It is undisputed that Romero is not a named defendant in this litigation, and neither attorney has ever represented Romero before this Court. To the contrary, the record establishes that Romero has, by his own choice, declined any representation or legal advice offered, by Charter mandate or otherwise, by Haney or McGoffin (or their respective organization and law firm), since well before the initiation of this lawsuit. As early as March, 2012, Romero was asserting "conflict and risk management issues" with regard to the District Attorney's authority to represent Iberia Parish and its constituent parts. [rec. doc. 100-3; 108-2].
Moreover, within one month of the filing of this lawsuit, Romero declined to discuss the facts of this case with Haney and McGoffin outside the presence of counsel of his choosing. [rec. doc. 99-4]. Indeed, counsel for Romero, Mr. Unglesby, has acknowledged by Motion to this Court that he has represented Romero "throughout the course of this matter." [See rec. doc. 57, ¶ 2]. This necessarily prompted McGoffin to emphasize the importance of maintaining the attorney-client and work product privileges with respect to their defense of Thubron's claims against their clients in this lawsuit, Iberia Parish and the named Council Members, in correspondence to Romero dated May 31, 2013.
It is obvious that Romero cannot be a "client" of either Haney or McGoffin unless an attorney-client relationship exists between them. The test for determining whether an attorney-client relationship exists is a subjective one and hinges on the purported client's belief that he or she is consulting the lawyer in his professional capacity with the intention of seeking professional legal advice. United States v. Edwards, 39 F.Supp.2d 716, 722 (M.D. La. 1999) (and cases cited therein). Moreover, this subjective belief must be a reasonable one. Id.
In light of the above cited evidence before this Court, it is clear that Romero had no such subjective belief, much less any belief that could be deemed reasonable, and no intention whatsoever to consult with, or seek legal services from, either Haney or McGoffin or their organization (the Sixteenth Judicial District District Attorney's Office) or law firm (Durio McGoffin, Stagg & Ackermann, P.C.).
Finally, under the unique facts of this case, for the Court to accept Thubron's argument and find Romero a "client" of Haney and/or McGoffin would lead to absurd consequences. The Court would, in essence deem Romero to be a client of attorneys which he himself has refused to accept, and would have no effect in this case, other than to deprive the named defendants, none of whom have disavowed defense counsel's representation of them, of their presumably chosen counsel.
For these reasons, there is no actual so-called "direct adversity" conflict present in this case.
For these same reasons, and for those which follow, there is likewise no actual material limitation conflict in this case.
Finally, to the extent that Thubron makes a strained argument that defense counsel's simultaneous representation of Iberia Parish and the Council Members is adverse, that argument is unavailing. Thubron's argument ignores the reality that Iberia Parish has no reason to thwart the Council Members' defense. To the contrary, their positions are aligned. A legal victory for the Council Members is a legal victory for Iberia Parish. Further, the remote future possibility that Iberia Parish and its Council Members may, in some unidentified fashion find themselves at odds with each other, is much too tenuous a thread to support the high standard of proof to support disqualification of defense counsel in this case.
For these reasons, Thubron has not carried her burden of demonstrating that an actual conflict of interest exists in this case. To the contrary, any purported alleged conflict is, at best, merely hypothetical, based on allegations that are not supported by existing facts.
These same reasons belie Thubron's argument that an actual conflict exists under Rule 1.8(b), which prohibits a lawyer from using information "relating to representation of a client to the disadvantage of the client. . ." As is clear from the name of the Rule "Conflict of Interest: Current Clients — Specific Rules", and its text, Rule 1.8 provides specific rules applicable to current clients. Romero is not a current client of either Haney or McGoffin. Romero did not accept their representation which could have been provided to him by virtue of the Charter. Thus, neither attorney could have gained any information from Romero, a non-client, which is protected from disadvantageous use.
The defendants are correct that Rule 1.13 is also applicable to their representation of Iberia Parish, the Council and the Council Members.
While Thubron asserts that the second sentence of Rule 1.13(g) requires the authorization of other than the clients in this case, she is incorrect. The cited portion of Rule 1.13(g) only requires such authorization "[i]f the organization's consent to the dual representation is required by Rule 1.7", that is, under Rule 1.7(b), when a concurrent conflict of interest under paragraph (a) of Rule 1.7 has been found. That is not the case herein. Therefore the second sentence of Rule 1.13(g), relied upon by Thubron, is inapplicable.
Conflicts of interest with regard to representation of former clients is embodied in Rule 1.9.
Initially, the Court notes that under a literal reading of the Fifth Circuit's test for disqualification, Thubron's argument fails. It is undisputed that there has never been an actual attorney-client relationship between Thubron, the moving party, and Haney or McGoffin, the attorneys she seeks to disqualify. To the extent that the test may be construed as allowing a showing by Thubron of an actual attorney-client relationship between Romero and Haney or McGoffin, that showing has not been made in this case. As discussed above, Romero has refused to accept the representation of Haney and McGoffin which could have been provided to him by virtue of the Charter, and instead has chosen to retain counsel of his choosing.
Moreover, even if there had been an actual attorney-client relationship between Haney or McGoffin and Romero in the past, which has not been shown, Thubron has failed to demonstrate any substantial relationship between the subject matter of that alleged prior representation and the alleged present representation. Indeed, it is difficult for this Court to envision how any alleged prior representation of Romero by defense counsel could in any way be related to the present lawsuit in which Thubron claims that the Council Members de facto terminated her employment in violation of her Constitutional rights.
Rule 3.7 prohibits a lawyer from acting both as an advocate and as a witness in the same trial.
Furthermore, as to McGoffin, Thubron has failed to establish the component part of Rule 3.7 which precludes disqualification if it would impose a substantial hardship on the client. McGoffin has represented the named defendants for nearly two years, during which there has been extensive dispositive and non-dispositive motion practice, necessarily requiring a substantial amount of fact investigation and strategic planning on his part, even though discovery has not yet formally begun. The Court therefore additionally finds that even if Rule 3.7 were to be applied under the facts of this case, the hardship which necessarily would result to the named defendants from the disqualification of McGoffin would preclude his disqualification.
Thubron asserts that McGoffin's representation is in violation of Rules 5.4(c),
Moreover, Haney is not a "co-client" in this litigation as suggested by Thubron but, rather, was co-counsel of record with McGoffin for the named defendants. Finally, there has been absolutely no showing that McGoffin's independence or professional judgment has been interfered with, or directed by, Haney, or that the fee arrangement for McGoffin's services has had any adverse affect on McGoffin's clients in this case, the named defendants. To the contrary, the record before this Court, as well as McGoffin's interactions with this Court during the multiple hearings that have been held in this case, evidences the opposite.
Because the Court has found no conflict with respect to the representation by Haney or McGoffin requiring their disqualification, there is no basis upon which to impute any disqualification to their respective organization, the Sixteenth Judicial District District Attorney's Office, or law firm, Durio McGoffin, Stagg & Ackermann, P.C., respectively.
This is particularly the case given that Haney has left office, and the newly elected District Attoney, Duhe, has been substituted as counsel of record for the name defendants herein. Indeed, even if Haney is called to testify at trial, there is no basis to force Duhe or the District Attorney's Office to resign from this case; Haney will remain impeachable for interest and disqualification of his former Office will likely not resurrect his credibility. See FDIC, 50 F.3d at 1315-1316.
Moreover, Rule 3.7(b) expressly permits Duhe to remain in the case because any potential disqualification of Haney imposed under Rule 3.7 is not imputed to Haney's former Office. See Louisiana Professional Responsibility Law and Practice, Louisiana State Bar Association, Edited and Annotated by Dane S. Ciolino, Annotations to Rule 3.7, No Imputation; Comment 7 to ABA Model Rule 3.7 (explaining that under paragraph (b), "a lawyer is not disqualified from serving as an advocate because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph (a)").
The Court has previously addressed and rejected these arguments in the Ruling on Thubron's prior Motion for Sanctions. This Court has been presented with an engagement letter dated April 29, 2013 executed by McGoffin and Haney. In the absence of any challenges to Haney's or McGoffin's representative authority by their clients in this lawsuit, or anyone authorized by their clients in this lawsuit, the Court will not revisit this issue.
Finally, Thubron asserts that defense counsel have violated their duty of "political loyalty" to Romero. This alleged duty is purportedly outlined in two cases cited by Thubron, Aucoin v. Haney 306 F.3d 268 (5
For the foregoing reasons, the Motions for Sanctions [rec. docs. 99 and 100] are
