Drake et al v. Eloy, City of et al

Filing 70

ORDER denying 48 Motion to Disqualify Counsel; denying 58 Motion for Leave to File Sur-repl. Signed by Judge David G Campbell on 12/22/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kendall Drake, et al.,

No. CV-14-00670-PHX-DGC

Plaintiffs,

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v.

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ORDER

Eloy, City of, et al.,

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Defendants.

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Plaintiffs Kendall Drake and Greg Hunter have filed a motion to disqualify the law

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firm of Jackson Lewis, PC from representing Defendants in this matter. Doc. 48. The

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motion is fully briefed. Docs. 48, 51, 55. Defendants have filed a motion for leave to file

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a sur-reply (Doc. 58), which Plaintiffs oppose (Doc. 64). For the reasons that follow, the

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Court will deny the motion to disqualify and the motion to file a sur-reply.1

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I.

Background.

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Plaintiffs Kendall Drake and Greg Hunter were officers with the Eloy Police

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Department. On April 20, 2013, Drake and Hunter responded to a call from a citizen

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regarding an injured cat.

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scene they saw that the cat was so severely injured that it would need to be euthanized.

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Id. Plaintiffs further allege that their supervising sergeant, David Crane, arrived at the

Doc. 48 at 2. Plaintiffs allege that when they arrived on the

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The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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scene but delayed euthanizing the cat, allowing it to suffer unnecessarily in violation of

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Arizona’s animal cruelty laws. Id.

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Plaintiffs allege that Defendants took various adverse actions against them in the

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weeks following this incident. In response, Drake submitted an Offensive Behavior/

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Harassment Complaint Form to the City’s Human Resources Department, alleging that

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Crane, along with Sergeant Jerome and Lieutenant Tarango, took these actions in

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retaliation for Drake’s complaints regarding the cat incident. Id.

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The City hired Jackson Lewis attorney Victoria Torrilhon to conduct an

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independent investigation of Drake’s allegations. Id. A report was submitted to the City

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Manager on September 13, 2013. Id. at 2-3.

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Plaintiffs served Defendants with their Notice of Claims on November 14, 2013,

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asserting whistleblower retaliation. Id. Defendants assert, without contradiction, that

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Plaintiffs learned in February of 2014 that Jackson Lewis would be representing

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Defendants in this case, and yet Plaintiffs waited some eight months to file this motion to

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disqualify. Plaintiffs maintain that they learned during discovery that Jackson Lewis

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previously represented Hunter when he worked as a police officer for the Town of

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Youngtown. Id.; see Kimberly Johnson v. Town of Youngtown, No. 2:10-cv-01948-FJM.

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In that case, Chief of Police Kimberly Johnson sued the Town of Youngtown,

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Hunter, and another officer under Title VII. Johnson alleged that Youngtown and the

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individual defendants discriminated against her on the basis of sex and retaliated against

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her for opposing the discrimination. Doc. 48 at 3. Plaintiffs assert that Johnson alleged

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Hunter was insubordinate and urged his fellow officers to behave in an insubordinate

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manner.

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responses, and pleadings on behalf of Hunter. Id. at 4.

Id. at 3-4.

Jackson Lewis prepared disclosure statements, interrogatory

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Plaintiffs seek to disqualify Jackson Lewis on the grounds that (1) Jackson Lewis

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previously represented Hunter in the Youngtown case, (2) Jackson Lewis received

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confidential information from Hunter during the former representation, and (3) Defendant

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Eloy retained Jackson Lewis to conduct an independent investigation just a few months

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prior to the start of this lawsuit, during which its attorneys had several meetings and

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discussions with Drake. Doc. 48 at 1-2.

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II.

Legal Standard.

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Disqualification of an attorney is an extreme remedy; courts rarely interfere with

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the attorney-client relationship. Alexander v. Superior Court, 685 P.2d 1309, 1313 (Ariz.

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1984).

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demonstrate that disqualification is necessary.” Mardian Equip. Co. v. St. Paul Ins. Co.,

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No. CV05-2729-PHX-DGC, 2006 WL 798881, at *1 (D. Ariz., Mar. 28, 2006) (citing

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Amparano v. Asarco, Inc., 93 P.3d 1086, 1093 (Ariz. Ct. App. 2004)). The moving party

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must show “sufficient reason” for the attorney should to be disqualified. Id. at 1092

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(citing Alexander, 685 P.2d at 1313).

“The burden is on the party seeking to disqualify opposing counsel to

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The Preamble to the Arizona Rules of Professional Conduct states that a violation

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of an ethical rule “does not necessarily warrant any other non-disciplinary remedy, such

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as disqualification of a lawyer in pending litigation.” Ariz. R. Prof’l Conduct, pmbl. at

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20. In general, the rules of professional responsibility are for “ethical enforcement and

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are not designed to be used as a means to disqualify counsel.” Amparano, 208 P.3d at

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1092.

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Ethical Rule (“ER”) 1.9(a) provides that “[a] lawyer who has formerly represented

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a client in a matter shall not thereafter represent another person in the same or a

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substantially related matter in which that person’s interests are materially adverse to the

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interests of the former client unless the former client gives informed consent, confirmed

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in writing.” Ariz. R. Prof’l Conduct 1.9(a) (emphasis added). For two matters to be

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“substantially related,” there must be more than general similarity. The Arizona Court of

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Appeals has explained that “[s]ome factual nexus must exist between the two matters;

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i.e., the matters themselves must be substantially interrelated.” Amparano, 93 P.3d at

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1093 (quoting Ariz. State Bar. Comm. on Rules of Prof’l Conduct Ethics Op. 94-06)

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(emphasis in original).

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III.

Analysis.

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A.

Prior Representation of Hunter.

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The Court does not find that this case and the Youngtown case are substantially

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related within the meaning of the authorities cited above. Youngtown was a Title VII

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sexual harassment suit, Hunter was a defendant, and the case concerned Hunter’s actions

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while employed at a different law enforcement department more than six years ago.

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Hunter is a plaintiff in this case, asserting a whistleblower retaliation claim based on

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adverse actions Eloy allegedly took against him for different work in a different police

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department at a different time.

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Defendants deny that Hunter’s insubordination will be asserted in this case (Doc.

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51 at 7 n.22), and the only evidence Plaintiffs cite in support of their claim that this case

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involves Hunter’s alleged insubordination is an excerpt from one deposition. The Court

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finds this to be the thinnest of connections between the two cases. Even if this could be

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described as “general similarity,” it would not be enough to make the cases substantially

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related for purposes of ER 1.9.

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Comment 2 to ER 1.9 specifically envisions this type of representation as conforming to

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the ethical rules: “[A] lawyer who recurrently handled a type of problem for a former

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client is not precluded from later representing another client in a wholly distinct problem

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of that type even though the subsequent representation involves a position adverse to the

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prior client.” Ariz. R. Prof’l Conduct 1.9, cmt. 2 (2003) (emphasis added).

Mardian Equip. Co., 2006 WL 798881, at *1-2.

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Courts have even found that an attorney who previously defended a doctor in a

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malpractice case was not disqualified from representing plaintiffs against the same doctor

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in a different malpractice case. See Robbins v. Gillock, 862 P.2d 1195, 1197 (Nev. 1993).

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Although the causes of action were nearly identical, the claims themselves were not

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related, and disqualification was inappropriate. Id. (“Mere similarity or a superficial

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resemblance between prior and present representation is insufficient to justify

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disqualification.”); see also Merle Norman Cosmetics, Inc. v. U.S. Dist. Court, Cent.

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Dist., 856 F.2d 98 (9th Cir. 1988); PCT Int’l v. Holland Elecs., LLC, No. CV12-01797-

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PHX-JAT, 2013 WL 858072 at *2 (D. Ariz. Mar. 7, 2013) (“Plaintiff first argues that the

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matters are substantially related because Mr. Rogers obtained information regarding

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Plaintiff’s approach to and tolerance of potential patent litigation, strategic approaches to

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this type of litigation, and is familiar with Plaintiff’s strategies for patenting inventions

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relating to coaxial cable connectors. The Court finds that Plaintiff has not carried its

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burden of showing that Mr. Rogers’ former representation of Plaintiff in patent-related

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matters generally requires disqualification in this case.”); Mizioch v. Montoya, No.

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CV10-01728-PHX-JAT, 2011 WL 4900033 at *4-5 (D. Ariz. Oct. 14, 2011).

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Although Plaintiffs maintain that Jackson Lewis obtained information regarding

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Hunter’s business practices and attitudes towards superiors that could have a bearing on

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this case, that alone is not enough to satisfy the substantially related test of ER 1.9.

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Familiarity with a client’s business practices, personality traits, and behavior does not,

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without more, mean that the prior representation is substantially related to the current

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matter. Mardian Equip. Co., 2006 WL 798881, at *1; Ariz. R. Pof’l Conduct 1.9, cmt. 3.

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Plaintiffs also argue that the appearance of impropriety is enough to disqualify an

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attorney where the attorney may have obtained confidential information during former

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representation related to the subject matter at issue. Doc. 48 at 5. The appearance of

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impropriety is no longer a standard in the Arizona Rules of Professional Conduct, but it

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does remain part of the conflict of interest analysis when disqualifying an attorney.

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Amparano, 93 P.3d 1086, 1094 (quoting Gomez v. Superior Court, 717 P.2d 902, 904-05

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(Ariz. 1986)). Here, the Court finds little risk of the appearance of impropriety. The

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Youngtown case and the present dispute are not substantially related for reasons explained

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above.

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B.

Independent Investigation for Eloy.

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Plaintiffs also claim that Jackson Lewis ought to be disqualified because one of its

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lawyers acted as Eloy’s independent investigator. Doc. 48 at 8. Plaintiffs claim Drake

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would not have been as forthcoming in interviews with Torrilhon had she known Jackson

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Lewis was going to represent Defendants in the case.

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The Court first notes that Plaintiffs were aware of this issue for some eight months

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before raising it. That delay at least suggests that Plaintiffs did not view it as sufficiently

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serious to warrant disqualification. And the delay creates a situation of substantially

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greater prejudice to Defendants if they lose their litigation counsel after months of

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investment.

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In addition, there is nothing to suggest that ER 1.9 applies to cases where a law

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firm conducts an independent investigation and then later serves as counsel in the same

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dispute. ER 1.9 involves changing sides in a dispute, and Plaintiffs do not claim that

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Jackson Lewis represented them in this matter. The Court finds no basis to disqualify

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Jackson Lewis under ER 1.9 as a result of its former independent investigation.2

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Plaintiffs argue in their reply brief that Jackson Lewis violated ER 4.3 and ER 4.2.

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Doc. 55 at 7. This argument was not made in Plaintiffs’ motion, and the Court will not

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consider arguments raised for the first time in reply. See Simpson v. Lear Astronics

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Corp., 77 F.3d 1170, 1176 & n.4 (9th Cir. 1995); United States v. Boyce, 148 F. Supp. 2d

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1069, 1085 (S.D. Cal. 2001).3

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IV.

Attorneys’ Fees and Costs.

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Defendants claim that they should be awarded attorneys’ fees and costs incurred in

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defending against this motion. Under 28 U.S.C. § 1927, a district court has discretion to

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impose sanctions on an attorney who “multiplies the proceedings in any case

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unreasonably and vexatiously[.]” Section 1927 sanctions must be supported by a finding

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of subjective bad faith, which is present when an attorney knowingly or recklessly raises

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a frivolous argument, or argues a meritorious claim for the purpose of harassing an

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Plaintiffs cite In re PSE &G Shareholder Litigation, 801 A. 2d. 295 (N.J. 2002),
but that case considered whether the dual role of a law firm as both independent
investigator and defense counsel impacted the independence of the investigation. It did
not deal with an ethical violation or disqualification of a law firm.
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Plaintiffs offered one other new argument in their reply that the Court will not
consider: that Jackson Lewis represented the City of Eloy against Drake in an adversarial
capacity prior to the independent investigation.

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opponent. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1107 (9th Cir. 2002). Attorneys’

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fees in Arizona are governed by A.R.S. § 12-349, which requires Defendants to show that

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Plaintiffs’ claims were “groundless, in bad faith and harassing.” Phoenix Newspapers,

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Inc. v. Dept. of Corr., 934 P.2d 801, 808 (Ariz. App. 1997).

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Defendants have failed to show that the motion to disqualify was filed in bad faith

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or for the purpose of harassment. Defendants do not dispute that Hunter learned of the

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identity of his former counsel only through discovery, a plausible explanation for why the

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motion was not brought earlier. The request for attorneys’ fees will be denied.

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IT IS ORDERED that Plaintiffs’ motion to disqualify Jackson Lewis and
Defendants’ request to file a sur-reply (Docs. 48, 58) are denied.
Dated this 22nd day of December, 2014.

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