Keane v. Jacksonville Police Fire and Pension Fund Board of Trustees

Filing 25

ORDER denying 17 the plaintiff's motion to disqualify the Office of General Counsel from further representation of the defendant and denying 24 the defendant's motion for leave to file a surreply. Signed by Magistrate Judge Patricia D. Barksdale on 9/15/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
JOHN KEANE,
Plaintiff,
V.

NO. 3:16-CV-1595-J-20PDB

JACKSONVILLE POLICE FIRE AND
PENSION FUND BOARD OF TRUSTEES,
Defendant.

Order
Before the Court are John Keane’s opposed motion to disqualify the Office of
General Counsel of the City of Jacksonville from further representing the
Jacksonville Police and Fire Pension Fund Board of Trustees in this action, Doc. 17,
the Board’s response, Doc. 20, Keane’s reply, Doc. 23, and the Board’s opposed motion
for leave to file a surreply, Doc. 24.
Background
On December 29, 2016, Keane filed an amended complaint against the Board.
Doc. 4. He alleges the following facts.
The Marvin B. Clayton Firefighter Pension Trust Fund Act, codified at chapter
175 of the Florida Statutes, calls for the creation of pension funds for firefighters
throughout Florida, sets standards for firefighter pensions in municipalities
throughout Florida, establishes a “Firefighter’s Pension Trust Fund” in each
municipality in Florida, and provides for the creation of independent boards of
trustees to administer pension funds. Doc. 4 ¶¶ 7, 8; see Fla. Stat. § 175.021
(legislative declaration concerning the Act). The Act contains provisions on the

boards’ powers, responsibilities, and independence from municipalities in which they
operate. Doc. 4 ¶¶ 9–12. The Marvin B. Clayton Police Officers Pension Trust Fund
Act, codified at chapter 185 of the Florida Statutes, contains similar provisions for
pension funds for police officers. Doc. 4 ¶¶ 13–15.
To implement those laws, the Florida legislature established by special act the
Jacksonville Police and Fire Pension Board of Trustees as an independent agency and
empowered it to enter into contracts, leases, or other transactions; employ and fix the
compensation of an administrator and any consultants; and have all other powers it
reasonably determines necessary or appropriate to the performance of its duties in
administering pensions for employees of the Jacksonville Sheriff’s Office and
Jacksonville Fire and Rescue Department. Doc. 4 ¶¶ 6, 16–17; see Laws of Fla., ch.
90-443, § 2; Laws of Fla., ch. 92-341, § 1; Charter of the City of Jacksonville, Article
22, § 22.04. The special act distinguishes Board employees from city employees and
repeals any inconsistent provisions in the city’s charter. Doc. 4 ¶¶ 18–19.
In the past, the Office of General Counsel has claimed it cannot represent the
Board because chapters 175 and 185 “create a present or potential conflict of interest”
and the Board is not the city but an independent agency. Doc. 4 ¶ 21. The Board is
“an independent agency from the City [of Jacksonville], created wholly by state law,
that acts as the sole judge of the terms and administration of the Fund, subject only
to judicial review.” Doc. 4 ¶ 22.
Keane is the Board’s former executive director and administrator. Doc. 4 ¶ 4.
His initial employment contract with the Board was effective August 1, 1990. Doc. 4
¶ 23.
On September 1, 1991, the Board entered into a financial services contract with
the city for the city to provide administrative services for the Board, including
distributing pension payments as determined by the Board. Doc. 4 ¶ 24; Doc. 4 at
22−26.
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On September 20, 2000, the Board adopted a Senior Staff Voluntary
Retirement Plan (“SSVRP”) to compensate its “senior staff members,” some of whom
were ineligible to participate in a pension plan for city employees. Doc. 4 ¶ 25; Doc. 4
at 38−56. The Board made itself the SSVRP’s exclusive administrator. Doc. 4 ¶ 27.
Under the SSVRP, a member with five years of Board service who contributes
seven percent of his or her compensation may receive retirement benefits upon
turning 65 in the form of biweekly payments of three percent of the average final
compensation for each year of credited service. Doc. 4 ¶¶ 28, 29. The Board has an
employer identification number with the Internal Revenue Service for SSVRP
members and contributes to social security for SSVRP members, while the city makes
no such contributions for city employees. Doc. 4 ¶ 20.
On June 20, 2003, the Board’s financial services contract with the city was
restated and continued to obligate the city to distribute pension payments as
determined by the Board. Doc. 4 ¶ 32. Since the SSVRP’s inception, the Board has
reported the SSVRP’s existence and cost in annual budget submissions to the city and
recorded contributions in its own database. Doc. 4 ¶ 33.
On February 12, 2004, Keane’s employment contract with the Board was
restated. Doc. 4 ¶ 30; Doc. 4 at 28−56. (The restated contract has been amended five
times. Doc. 4 ¶ 30.) The restated contract incorporates the SSVRP and attaches it as
an exhibit. Doc. 4 ¶ 31; Doc. 4 at 28−56. Since Keane began participating in the
SSVRP, he has complied with all SSVRP requirements, including making all required
contributions. Doc. 4 ¶¶ 34, 37.
On September 25, 2015, the Board approved Keane’s application for
retirement, and effective October 1, 2015, he began receiving benefits under the
SSVRP. Doc. 4 ¶¶ 36, 37. He continued to receive benefits after a cost-of-living
adjustment on January 1, 2016. Doc. 4 ¶ 38. Two others also receive benefits under
the SSVRP. Doc. 4 ¶ 35.
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The city now contests the legitimacy of the SSVRP. Doc. 4 ¶ 39.
On August 9, 2012, John Crescimbeni (a city councilman) asked Cindy
Laquidara (the city’s then-General Counsel) to provide an opinion on the Board’s
authority to establish the SSVRP. Doc. 4 ¶ 40. Laquidara issued a memorandum
suggesting the Board lacked authority to establish the SSVRP based on a reading of
Article 16 of the city’s charter providing only the City Council may amend the pension
system for city employees. Doc. 4 ¶¶ 41, 42. In response, the Board sought an opinion
from Robert Klaussner (the Board’s then-counsel). Doc. 4 ¶ 44. He issued an opinion
stating the Board was not subject to Article 16 and possessed authority to establish
the SSVRP. Doc. 4 ¶ 44.
Klaussner’s opinion went “largely unchallenged” for three years, during which
Keane retired and received benefits under the SSVRP. Doc. 4 ¶ 45.
On November 20, 2015, the city sued Keane, the Board, and the two others
receiving benefits under the SSVRP. Doc. 4 ¶ 46; see City of Jacksonville v.
Jacksonville Police Fire Pension Board of Trustees etc., No. 16-2015-CA-007380 (Fla.
4th Cir. Ct.). The city sought a declaration the Board lacked authority to establish
the SSVRP. Doc. 4 ¶ 46.
On February 9, 2016, citing Laquidara’s memorandum, the city amended its
charter to expressly prohibit the Board from establishing or administering any
retirement plan other than the Jacksonville Police and Fire Pension Fund. Doc. 4
¶ 47. Two months later, on April 20, 2016, Jason Gabriel (the city’s General Counsel)
issued an advisory opinion to Lenny Curry (the city’s Mayor) “echoing” Laquidara’s
memorandum and relying on section 7.02 of the city’s charter. Doc. 4 ¶¶ 48, 49.
(Section 7.02 provides, “The head of the office of general counsel shall be the general
counsel who shall be the chief legal officer for the entire consolidated government,
including its independent agencies. … Any legal opinion rendered by the general
counsel shall constitute the final authority for the resolution or interpretation of any
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legal issue relative to the entire consolidated government and shall be considered
valid and binding in its application unless and until it is overruled or modified by a
court of competent jurisdiction or an opinion of the Attorney General of the State of
Florida dealing with a matter of solely state law.”)
On April 21, 2016—the day after Gabriel issued the advisory opinion—the city
voluntarily dismissed the state-court action against Keane, the Board, and the other
SSVRP benefit recipients. Doc. 4 ¶ 51.
A few weeks later, on May 9, 2016, Michael Weinstein (the city’s Director of
Finance and Administration) sent Keane a letter informing him his benefits under
the SSVRP would be terminated and he instead would receive the lesser payments to
which he would have been entitled if eligible to participate in the city’s pension plan.
Doc. 4 ¶¶ 52, 53; Doc. 4 at 80. Weinstein cited Gabriel’s advisory opinion. Doc. 4 ¶ 52;
Doc. 4 at 80.
Keane demanded the Board provide benefits under the SSVRP, but the Board
refused and has not tried to enforce the financial services contract with the city that
requires the city to pay amounts determined by the Board. Doc. 4 ¶¶ 54, 55. Since
May 9, 2016, the Board has issued Keane only the lesser payments calculated by
Weinstein. Doc. 4 ¶ 56.
Based on those alleged facts, Keane brings a claim under 42 U.S.C. § 1983,
contending the Board violated the Fourteenth Amendment’s procedural due process
clause by reducing his benefits without notice or an opportunity to be heard (count I),
a claim under § 1983, contending the Board violated the Fifth Amendment’s takings
clause by reducing his benefits without just compensation (count II), a claim for
breach of contract, contending the Board breached the restated contract with him by
failing to pay him benefits under the SSVRP (count III), and a claim for promissory
estoppel, claiming the Board is estopped from failing to pay him benefits under the
SSVRP (count IV). Doc. 4 ¶¶ 57–79. He requests actual and compensatory damages,
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a declaration that the Board had authority to establish the SSVRP and must pay him
the amount due under the SSVRP, injunctive relief restoring his benefits under the
SSVRP and the restated contract, reasonable costs and attorney’s fees, and any other
just and proper relief. Doc. 4 ¶¶ 61, 69, 73, 79.
On January 24, 2017, the Office of General Counsel appeared on behalf of the
Board to request an extension of time to respond to the amended complaint. Doc. 7.
The Court granted the motion, Doc. 8, and on February 6, 2017, the Board filed a
motion to dismiss, Doc. 9. The Board argues Keane fails to state a claim for a violation
of a constitutional right and the Court should decline to exercise jurisdiction over the
state-law claims. Doc. 9. On March 2, 2017, Keane filed a response in opposition. Doc.
12. The motion is pending.
On March 16, 2017, the parties’ attorneys filed a case management report. Doc.
13. They did not request a preliminary pretrial conference to address any unresolved
issue or present any matter for the Court’s preliminary consideration. See generally
Doc. 13. Based on the dates requested by the parties, the Court entered a case
management and scheduling order setting a December 15, 2017, deadline for
completing discovery, a February 9, 2018, deadline for filing any dispositive motion,
and a trial during the term beginning August 6, 2018. Doc. 14.
Motion to Disqualify Counsel
On June 30, 2017, Keane filed the motion to disqualify the Office of General
Counsel from further representing the Board in this action. Doc. 17.
Citing Rule 4-1.7 of the Rules Regulating The Florida Bar (“Conflict of Interest;
Current Clients”), Keane contends the Board is “an entity distinct from the City,
created by state law,” and the Board and city often have conflicting interests. Doc. 17
at 1–2. He points to a 1987 letter from James Harrison (the city’s then-General
Counsel) stating the Office of General Counsel could no longer represent the Board
because chapters 175 and 185 “create relationships, which despite all good intentions,
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place our attorneys in either a present or potential conflict of interest,” and, “I will
not quote the rules regulating the Florida Bar. Suffice it to say, professional ethics
require me to make this decision as being in the best interest of your Board and the
City at this time.” Doc. 17 at 2; Doc. 17-1. Keane points to the fact that the same
attorneys representing the Board in this action represented the city against the Board
in the state-court action. Doc. 17 at 3; Doc. 17-2. Keane points to Gabriel’s advisory
opinion, including a portion in which Gabriel chastises the Board for “‘obstinacy’”
regarding establishment of the SSVRP and the Board’s “‘insistence that it has
complete authority over its administrative expenses.’” Doc. 17 at 3−4; Doc. 17-3. And
Keane points to the Board’s initial disclosures in this action that include letters,
memoranda, and opinions by current and former members of the Office of General
Counsel regarding the Board’s lack of authority to establish the SSVRP. Doc. 17 at 4;
Doc. 17-4.
Keane argues Gabriel’s advisory opinion conflicts with the Board’s prior
position it has authority over its financial decisions and administrative expenses and
“the Board’s … institutional interest in maintaining its autonomy from the City,” and
expresses concern the General Counsel will rely on the same legal argument it used
in state-court action: “that the Board does not have autonomy over its own financial
decisions, and is beholden to the legal determinations of the City’s General Counsel.”
Doc. 17 at 4–5. He contends the General Counsel’s “strong incentive to make an
argument that will enhance the City’s (and its own office’s) control over the Board …
creates an irreconcilable conflict of interest between … the City and the Board,” the
conflict is imputed to all attorneys in the Office of General Counsel, and
representation of the Board creates both apparent and actual impropriety. Doc. 17 at
5, 7. He compares the General Counsel’s representation of the Board to the “fox being
left to guard the henhouse” and contends the city is “puppeteering the Board to
achieve the same remedy that it previously sought in its lawsuit against the Board.”
Doc. 17 at 7–8.

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The Board responds Keane has no standing to seek disqualification of the
Office of General Counsel because he has no attorney-client privilege to assert, and
disqualification is unwarranted. Doc. 20. Its arguments focus on the relationship and
balance of power between the consolidated government, the Board, and the Office of
General Counsel. See generally Doc. 20. It contends the Office of General Counsel’s
attorneys differ from private attorneys because the Florida Legislature mandates the
former’s representation of multiple units of the government, compares the Office of
General Counsel to state attorneys general, cites legal provisions it contends show
the Board is part of the consolidated government the Office of General Counsel
represents, cites cases to show state courts have repeatedly recognized its role in
representing the consolidated government, and asserts it represents the interests of
the entire consolidated government instead of any particular unit. Doc. 20 at 2–4, 6,
7–11, 12–16; Docs. 20-1, 20-2, 20-3, 20-5, 20-7, 20-8. It observes the Office of General
Counsel has not changed positions on the legality of the SSVRP and the 1987 letter
stating there is a conflict of interest between the Board and the Office of General
Counsel is no longer valid, and contends disqualifying the Office of General Counsel
would harm the Board because it has the most institutional knowledge about the
Board. Doc. 20 at 3, 5, 15; Doc. 20-6.
Keane replies the Office of General Counsel has no authority to control the
Board, the City is “inconsistent in the degree of authority or responsibility it claims
to have over its agencies and independent agencies,” the relationship between the
Office of General Counsel and the Board is not analogous to the relationship between
an attorney general and a state agency, he has standing because the conflict of
interest is severe enough to call into question the fair and efficient administration of
justice and standing rules are relaxed for conflicts involving counsel for a public
entity, and the Office of General Counsel omits any indication the Board “has waived
th[e] conflict of interest or even acquiesced to the General Counsel’s representation
in the first place.” Doc. 23. He points to laws cited in the amended complaint, Docs.
23-1, 23-2; a declaration by him concerning Harrison’s letter, the Board’s practice of
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hiring independent legal counsel for its legal needs, the Board’s vote to approve his
pension benefits, and the absence of any Board vote to revoke his pension benefits,
Doc. 23-3; docket sheets and filings from the state-court action and other actions, Doc.
23-4; an article on City Council’s refusal to hold a public workshop on a dredging
proposal because an independent authority voted for the project, Doc. 23-5; and a
filing from another case in which the city argues a spoliation motion for loss of a
document by the Jacksonville Human Rights Commission should be analyzed as a
third-party spoliation claim, Doc. 23-6.
Law
“[L]awyers

are

essential

to

the

primary

governmental

function

of

administering justice, and have historically been officers of the courts.” Goldfarb v.
Va. State Bar, 421 U.S. 773, 792 (1975) (internal quotation marks omitted). A court
thus has the “power and responsibility to regulate the conduct of attorneys who
practice before it.” United States v. Kitchin, 592 F.2d 900, 903 (5th Cir. 1979); see also
United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994) (a court “must protect its
independent interest in ensuring that the integrity of the judicial system is
preserved”).
“A motion to disqualify counsel is the proper method for a party-litigant to
bring the issues of conflict of interest or breach of ethical duties to the attention of
the court.” Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir. 1980). A
party may also or instead pursue bar disciplinary proceedings. Prudential Ins. Co. of
Am. v. Anodyne, Inc., 365 F. Supp. 2d 1232, 1237 (S.D. Fla. 2005).
A disqualification motion is governed by local rules and federal common law.
Herrmann v. GutterGuard, Inc., 199 F. App’x 745, 752 (11th Cir. 2006). The movant
must prove the grounds for disqualification. In re BellSouth Corp., 334 F.3d 941, 961
(11th Cir. 2003). If a court bases disqualification on an ethical violation, “the court
may not simply rely on a general inherent power to admit and suspend attorneys,
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without any limit on such power.” Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553,
1561 (11th Cir. 1997). Instead, the court must identify a rule and find the lawyer
violated it. Id.
Disqualification is a “blunt device.” Prudential, 365 F. Supp. 2d at 1237 (quoted
authority omitted). Among other costs resulting from disqualification, “it may be
difficult for a replacement attorney to fully master factual and legal nuances in a
complex case, … impairing the adversarial process.” Id.
Because a litigant is presumptively entitled to counsel of its choosing, only a
compelling reason will justify disqualification. BellSouth, 334 F.3d at 961. Because
disqualification is a “harsh sanction,” it “should be resorted to sparingly.” Norton v.
Tallahassee Mem’l Hosp., 689 F.2d 938, 941 n.4 (11th Cir. 1982). And because a
disqualification motion may be used to harass or for tactical advantage, it should be
viewed with caution. Herrmann, 199 F. App’x at 752.
Disqualification is not mandatory, even if a court finds a lawyer is violating a
conflict-of-interest rule. Prudential, 365 F. Supp. 2d at 1236. Instead, a “court should
be conscious of its responsibility to preserve a reasonable balance between the need
to ensure ethical conduct on the part of lawyers appearing before it and other social
interests.” Woods v. Covington Cty. Bank, 537 F.2d 804, 810 (5th Cir. 1976).
In undertaking the balancing, pertinent factors may include the nature of the
ethical violation, the age of the action, the prejudice to the parties, the effectiveness
of counsel in light of the violation, the public’s perception of the profession, and
whether the attempt to disqualify is a tactical device or a means of harassment. See
Cox v. Am. Cast Iron Pipe Co., 847 F.2d 725, 731–32 (11th Cir. 1988) (considering
some of those factors); Arrowpac Inc. v. Sea Star Line, LLC, No. 3:12-CV-1180-J32JBT, 2013 WL 5460027, at *12 (M.D. Fla. Apr. 30, 2013) (unpublished) (same);
Prudential, 365 F. Supp. 2d at 1237 (same).

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The Local Rules provide that the Rules Regulating The Florida Bar govern
members of the Court and attorneys specially admitted to appear before the Court.
Local Rule 2.04(d).
Rule 4-1.7 of the Rules Regulating The Florida Bar “concerns conflicts of
interests with current clients.” Young v. Achenbauch, 136 So. 3d 575, 581 (Fla. 2014).
It prohibits a lawyer from representing a client if the representation of one client will
be directly adverse to another client or if there is a substantial risk the representation
of a client will be materially limited by the lawyer’s responsibilities to another client
unless the lawyer obtains informed consent. Rule 4-1.7. “Thus, a lawyer ordinarily
may not act as advocate against a person the lawyer represents in some other matter,
even if it is wholly unrelated.” Rule 4-1.7, Comment (“Loyalty to a client”).
Rule 4-1.7 is based on two principles. Hilton v. Barnett Banks, Inc., No. 941036-CIV-T24(A), 1994 WL 776971, at *3 (M.D. Fla. Dec. 30, 1994) (unpublished).
“First, a client is entitled to his lawyer’s undivided loyalty as his advocate and
champion.” Id. (internal quotation marks omitted); accord Rule 4-1.7, Comment
(“Loyalty to a client”) (“Loyalty and independent judgment are essential elements in
the lawyer’s relationship to a client.”); Chapman v. Klemick, 3 F.3d 1508, 1512 (11th
Cir. 1993) (a lawyer’s duty of loyalty to his client is “very nearly sacred”); Gerlach v.
Donnelly, 98 So. 2d 493, 498 (Fla. 1957) (a lawyer must represent a client and handle
the client’s affairs with the “utmost degree of honesty, forthrightness, loyalty and
fidelity”). “Second, a lawyer should never place himself in a position where a
conflicting interest may, even inadvertently, affect the obligations of an ongoing
professional relationship.” Hilton, 1994 WL 776971, at *3.
Commentary to other rules clarify the rules do not define conflicts of interest
in the government context. See Rule 4-1.11, Comment (“The question of whether [two]
government agencies should be regarded as the same or different clients for conflict
of interest purposes is beyond the scope of these rules.”); Rule 4-1.13, Comment
(“Government agency”) (“[D]uties of lawyers employed by the government … may be
11

defined by statutes and regulation. Defining precisely the identity of the client and
prescribing the resulting obligations of such lawyers may be more difficult in the
government context and is a matter beyond the scope of these rules.”).
Commentary to Rule 4-1.7 provides the lawyer undertaking representation
bears the primary responsibility for resolving questions of conflicts of interest, but
opposing counsel may raise the question if the conflict “clearly call[s] in question the
fair or efficient administration of justice.” Rule 4-1.7, Comment (“Conflict charged by
an opposing party”); accord McGriff v. Christie, 477 F. App’x 673, 676–77 (11th Cir.
2012) (applying Georgia law interpreting an identical comment to the Georgia Rules
of Professional Conduct; “A party who is not a former client of opposing counsel
nevertheless has standing to raise the issue of opposing counsel’s conflict of interest
if there is ‘a violation of the rules which is sufficiently severe to call in question the
fair and efficient administration of justice’”); see also In re Gopman, 531 F.2d 262, 265
(5th Cir. 1976) (holding opposing counsel has standing to bring an ethical violation to
a court’s attention if applicable ethical rules require counsel to do so); Brown &
Williamson Tobacco Corp. v. Daniel Int’l Corp., 563 F.2d 671, 673 (5th Cir. 1977)
(holding a party has standing to seek disqualification of opposing counsel even if the
party is not the aggrieved client if the party’s attorneys are “authorized” to report the
ethical violation).
The commentary further provides an objection by opposing counsel should be
viewed with caution because it could be a means of harassment. Rule 4-1.7, Comment
(“Conflict charged by an opposing party”). Indeed, “[a]s a general rule, courts do not
disqualify an attorney on the grounds of conflict of interest unless the former client
moves for disqualification.” In re Yarn Processing Patent Validity Litig., 530 F.2d 83,
88 (5th Cir. 1976). “The relationship between an attorney and his client is personal.”
Id. at 90. “The prohibition applied to attorneys against representation of conflicting
interests rests on the duties of an attorney arising from the attorney-client
relationship. In the absence of this relationship, the duties of loyalty and
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confidentiality do not arise” and standing is absent. Id. (internal citation omitted).
“To allow an unauthorized surrogate to champion the rights of the former [or current]
client would allow that surrogate to use the conflict rules for his own purposes where
a genuine conflict might not really exist.” Id. A “narrow exception[] to this general
rule” is when the conflict of interest is “manifest and glaring,” thereby confronting a
court with “a plain duty to act.” Id. at 89.
Analysis
Evident from the parties’ extensive briefing and the commentary to the Rules
Regulating The Florida Bar concerning government lawyers, the asserted conflict of
interest is not “manifest and glaring” so as to confront the Court with a “plain duty”
to disqualify the Office of General Counsel from further representing the Board in
this action at the request of someone who is not an aggrieved current or former client
and who has a strategic interest in disqualification. See Yarn, 530 F.2d at 89. And to
the extent there is a conflict of interest, it is insufficiently severe to call in question
the fair and efficient administration of justice (whereas disqualification could for
reasons that follow). See McGriff, 477 F. App’x at 676–77. Denying the motion to
disqualify based on the absence of standing is warranted.
Balancing the interests compels the same decision. The nature of the asserted
conflict of interest is unique and involves complicated issues concerning
governmental relationships and historical practices best left resolved if at all not in
deciding whether opposing counsel should be disqualified but in deciding the merits
of the claims. Tellingly, Keane cites some of the same authority in his motion to
support disqualification as he does in his amended complaint to support the claims.
Compare Doc. 4 ¶¶ 7, 10, 13, 16, 17, 19, 21, with Doc. 17 at 1–4 and Doc. 23 at 2–4
(citing chapters 175 and 185 of the Florida Statutes, the city’s charter, and the
General Counsel’s previous position stated in Harrison’s 1987 letter). Overlap of
matters concerning disqualification and substantive merit causes pause.

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The Office of General Counsel’s representation of the Board here but against
the Board in the state-court action is unlikely to damage the public’s perception of
the profession. The Office of General Counsel has maintained the same position in
both actions, the city voluntarily dismissed the state-court action, and the distinction
between the city and the Board is not widely known or understood. Even the highly
experienced attorneys on both sides disagree on whether the Office of General
Council’s representation of the Board is proper, and they present at least colorable
arguments to support their respective positions.
This action has been pending since last year, Keane raised no conflict of
interest as a matter warranting preliminary consideration in the case management
report, he waited more than five months from the Office of General Counsel’s first
appearance to file the motion to disqualify, the discovery deadline is only three
months away, and disqualifying the Office of General Counsel and allowing new
counsel time to get up to speed will interfere with case management.
Permitting the Office of General Counsel to continue representing the Board
will not prejudice Keane beyond maintenance of Board positions adversarial to his
positions, while disqualifying the Office of General Counsel would prejudice the
Board financially (it would have to pay new counsel to start anew and do some of the
same work the Office of General Counsel has already done) and strategically (the
Office of General Counsel has expertise on the pertinent law and the most
institutional knowledge about the Board besides perhaps Keane himself from his
years as its executive director and administrator). Related to the latter point, because
it would be difficult to find a replacement to “fully master factual and legal nuances”
in this complex action, disqualifying the Office of General Counsel could impair the
adversarial process. See Prudential, 365 F. Supp. 2d at 1237 (quoted).
Keane has presented no good reason to think the asserted conflict of interest
will compromise the effectiveness of the Office of General Counsel in defending the
Board against the claims made against it in this action. If the Board decides the
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effectiveness of the Office of General Counsel is compromised, less than robust, or
contrary to the Board’s interests, the law that Keane himself cites makes clear the
Board can hire new counsel. See Fla. Stat. §§ 175.061(4), 185.05(4) (giving pension
boards the power and responsibility to “defend lawsuits of every kind, nature, and
description”); Fla. Stat. §§ 175.071(7), 185.06(6) (allowing pension boards to hire
independent counsel or use a municipality’s counsel under terms found acceptable to
help meet responsibilities).
Every motion to disqualify requires consideration of unique circumstances, and
the current motion is no exception. For that reason, the cases on which Keane relies
do not persuade the Court disqualification is warranted. See Doc. 17 at 7–8; Doc. 23
at 6 (relying on McGriff, 477 F. App’x at 677 and Kenn Air Corp. v. GainesvilleAlachua Cty. Reg’l Airport Auth., 593 So. 2d 1219 (Fla. 1st DCA 1992)).
The Court denies the motion to disqualify the Office of General Counsel from
further representation of the Board, Doc. 17. Finding a surreply unnecessary, the
Court denies the Board’s motion for leave to file one, Doc. 24.
Ordered in Jacksonville, Florida, on September 15, 2017.

c:

Counsel of Record

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