Kolbek et al v. Twenty First Century Holiness Tabernacle Church, Inc. et al
Filing
94
MEMORANDUM OPINION AND ORDER: Granting 66 MOTION for Edward B. Cloutman to Appear Pro Hac Vice filed by Pebbles Rodriguez, Desiree Kolbek, Jamie Rodriguez, Summer Hagan, Nicole Farr, Amy Eddy, Jeannette Orlando. Edward B. Cloutman is directed to immediately register as a CM/ECF user if he has not already done so and to enter his appearance in this matter. Denying 73 as construed as a Motion to Disqalify. Signed by Honorable Paul K. Holmes, III on June 17, 2011. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
DESIREE KOLBEK, AMY EDDY,
JEANNETTE ORLANDO, NICOLE FARR,
SUMMER HAGAN, JAMIE RODRIGUEZ,
and PEBBLES RODRIGUEZ
v.
PLAINTIFFS
No. 4:10-CV-04124
TWENTY FIRST CENTURY HOLINESS
TABERNACLE CHURCH INC.,
GLORYLAND CHRISTIAN CHURCH,
ARMFUL OF HELP, TONY AND SUSAN
ALAMO FOUNDATION, MUSIC SQUARE
CHURCH, SJ DISTRIBUTING INC.,
ACTION DISTRIBUTORS INC.,
ADVANTAGE FOOD GROUP, JEANNE
ESTATES APARTMENTS INC.,
RG & ASSOCIATES SECURITY, SALLY
DEMOULIN, SHARON ALAMO, and
STEVE JOHNSON
DEFENDANTS
OPINION AND ORDER
Currently before the Court is Plaintiffs’ Motion for Edward B.
Cloutman to Appear Pro Hac Vice. (Doc. 66). Also before the Court
are Defendant RG & Associates Security’s (“RGS”) Response to the
Motion (Doc. 73) and supporting brief (Doc. 74) and supplement
(Doc. 78). In its response, RGS argues that Cloutman should be
denied
admission
because
counsel
for
Plaintiffs,
including
Cloutman’s firm of Nix, Patterson & Roach, L.L.P., (the “Nix Firm”)
should be disqualified from representing Plaintiffs in the instant
matter. Although no formal Motion for Disqualification was filed by
RGS,
the
Court
determined
that
it
would
address
the
disqualification issue as presented in RGS’s response. The Court
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therefore allowed counsel for Plaintiffs to file Replies in order
to
respond
to
RGS’s
disqualification
entered on behalf of both
arguments.
Replies
were
David Carter (Doc. 91) and the Nix law
firm and its attorneys Brady Paddock, Neil Smith, and Edward
Cloutman (Docs. 92-93) (the “Nix Firm lawyers”). The Court, then,
being well and sufficiently advised in this matter, and for the
reasons reflected herein, finds that Plaintiffs’ Motion for Edward
B. Cloutman to Appear Pro Hac Vice (Doc. 66) is GRANTED. RGS’s
Response (Doc. 73) as construed as a Motion to Disqualify is
DENIED.
The Court will not further belabor the record in this case
with a lengthy recitation of facts or procedure and, instead, turns
directly to the issue at hand. It appears from the record that
David Carter represented Robert W. Gilmore, purported owner of RGS,
in 2001-2002. Carter represented Gilmore individually in a dispute
with Regions Bank regarding an allegedly unauthorized debit which
arose out of a personal guaranty signed by Gilmore to secure a
pick-up truck on behalf of another individual. Carter claims to
have no independent memory of this representation, but the “closed
client” file produced by Carter shows that the representation was
limited - amounting to a few phone calls and letters. (Doc. 91-2).
Mr. Carter spent a total of 5.2 hours working on the matter. Id. It
is on the basis of this representation that RGS now seeks to
disqualify Carter. RGS seeks disqualification of the Nix Firm
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lawyers only by association.
Counsel
appearing
before
this
Court
are
subject
to
the
standards for professional conduct set forth in the Model Rules of
Professional Conduct, which the Arkansas Supreme Court and this
federal court have adopted. See Local Rule Appendix, Rule IV(B).
Under Rule 1.9 of the Model Rules of Professional Conduct (“Model
Rules”):
A lawyer who has formerly represented a client
in a matter shall not thereafter represent
another person in the same or a substantially
related
matter
in
which
that
person’s
interests are materially adverse to the
interest of the former client . . .
(emphasis added). Thus, the threshold question herein presented is
whether Mr. Carter’s representation of Plaintiffs in the instant
matter and his prior representation of Robert Gilmore in the
Regions Bank repossession dispute of 2001-2002 are “the same or a
substantially related matter.”
The comments to the Rule 1.9 provide some guidance:
Matters
are
‘substantially
related
for
purposes of this Rule if they involve the same
transaction or legal dispute or if there
otherwise
is
a
substantial
risk
that
confidential factual information as would
normally have been obtained in the prior
representation would materially advance the
client’s position in the subsequent matter.
(Model Rule 1.9, Comment 3). The comments provide further:
Information acquired in a prior representation
may have been rendered obsolete by the passage
of time, a circumstance that may be relevant
in determining whether two representations are
Page 3 of 5
substantially related.
Id. Based on a straightforward application of these Model Rules,
Mr. Carter’s representation of Robert Gilmore individually, a
decade ago, in a matter wholly unrelated to the instant matter,
cannot be grounds for disqualification of Mr. Carter in this case.
Upon thorough review of the record, the Court finds that the two
cases do not involve the same transaction or legal dispute, nor is
there a substantial risk that confidential information obtained in
the
prior
representation
would
materially
advance
either
Plaintiffs’ or RGS’s position in the current matter. Furthermore,
because the Court finds that no grounds exist for disqualification
of David Carter, the Nix Firm lawyers cannot be disqualified by
association. RGS’s Response (Doc. 73) as construed as a Motion to
Disqualify is, therefore, DENIED.
Having
thus
disposed
of
the
disqualification
issue,
and
finding no other issues which would bar Mr. Cloutman’s admission,
the Court ORDERS that Plaintiffs’ Motion for Edward B. Cloutman to
Appear Pro Hac Vice (Doc. 66) be GRANTED. Edward B. Cloutman is
directed to immediately register as a CM/ECF user if he has not
already done so and to enter his appearance in this matter.
IT IS SO ORDERED this 17th day of June 2011.
/s/Paul K. Holmes, III
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PAUL K. HOLMES, III
UNITED STATES DISTRICT JUDGE
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