Smallwood v. Davis

Filing 91

ORDER denying 87 Motion to Disqualify Counsel; granting 89 Defendants' Emergency Motion to Disqualify Counsel, and denying as moot 90 Defendants' Contingent Motion to Stay. However, Spearman will FILE with the Court within 7 days of today's Order Defendants' written, informed waiver indicating that they understand and accept that he will not in any way, including for cross-examination, use any confidential information he acquired as Sheila's attorney. Signed by Chief Judge Lisa G. Wood on 3/21/2017. (csr)

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in t^e (jSniteli States! Bisect Covrt {or ^ontlient SBtOtrict of <(^eorgta Wsjftxosisi l9tiits(toti JOHN SMALLWOOD, Plaintiff, No. V. 5:14-CV-87 T&A FARMS, TIMOTHY DALE DAVIS, ALPHINE DAVIS, and STAGEY DINWIDDIE, Defendants. ORDER Plaintiff Defendants' Spearman conflict Sheila Smallwood's attorney, must of John file interest (^'Sheila' Huey Spearman, Defendants' as Dkt. to motion to will waiver be of cross-examination No. disqualify DENIED, his of but potential John's wife 87. Background The motion Court assumes alleges. the Sheila truth divorced of the from facts her Smallwood's ex-husband on October 16, 2006, pursuant to an order prepared by Spearman, who was Sheila her attorney. in information A0 72A (Rev. 8/82) the about Dkt. divorce, [her] No. 87-1. ^'Spearman finances, While learned representing confidential relationships, children. character, Dkt. No. education level, 87 at now represents former employers, filed 28, after Smallwood v. (S.D. Ga. 2014. witness Smallwood alleges, Sheila one in Dkt. this No. who of 13, 1. case. are that them called her a No. 5:14-CV-87, 2017). On Dkt. No. 87. filed the His attorneys will 87 be at Defendants racial a 2. fired epithet. See 2017 WL 150504, at *4 13, Court January present That suit No. 2017, denied Defendants' motion for summary judgment. Smallwood Smallwood's Sheila Dkt. among other things, T&A Farms, Jan. Defendants, in this race-discrimination suit. October substantive and sexual history." 7. Spearman was job history, motion on this Dkt. No. 82. March 15, 2017. just learned of Spearman's prior representation of Sheila, as Spearman did not disclose it to them. Court, know Defendants, she could or the seek his and has motion. any here. changed) Dkt. No. confidential Id. at was his herself disqualification. Spearman responded by claiming he name Sheila former 88 at 2. information had no Id. idea client did at Sheila until the not 2-3. (whose present He denies knowing or remembering about her that could be used 3. LEGAL STANDARD Motions to disqualify are governed by this Court's local rules and federal common law. Hermann v. GutterGuard, Inc., 199 F. App'x 745, 752 Schlumberqer Techs., Cir. 1997) . . . Local Inc. v. Wiley, (per curiam); see also 113 F.Sd 1553, (^^The court must clearly identify a applicable conclude {11th Cir. 2006) that Rule to the specific Rule jurisdiction and must violated that . ."). incorporates the rule . Georgia . Rules violation of the rules should be resolved in favor of disqualification." InfoCure (N.D. Ga. grounds Corp., May original) . 13, But for No. 1:01CV2845, 2003) the movant ^^bears disqualification," Herrmann v. 6076877, at *8 Disqualification GutterGuard, (N.D. is Ga. 2003 (citation and Inc., Dec. disfavored, WL 22149656, have 689 been . *2 in ^'the Hermann, No. 21, as mere it appearance 199 F. App'x at 1:04-CV-0365, 2005) is '^a 2005 WL (Carnes, harsh client, of J.). sanction, especially . where extensive discovery and trial preparation completed." F.2d 938, at (alteration omitted) often working substantial hardship on the in cases . Jones the burden of proving the impropriety is no longer grounds." 752; of Conduct. ^'[A]ny doubts as to the existence of a V. (11th relevant attorney 83.5(d) Professional the 1561 941 n.4 Norton v. (11th Cir. Tallahassee Memorial 1982). Hosp., It ^'interferes with this choice of counsel and causes expense and delay that are costly both to the client and the administration of justice." Herrmann, 2005 WL ^'sparingly." 6076877 Norton, at *8. Hence, it is granted only 689 F.2d at n.4. DISCUSSION Smallwood's motion will be denied. Rules: 1.6 requires and 1.9. See Spearman's require generally He raises two Georgia Dkt. disqualification, Defendants' waiver of his No. but 87. Rule use of Neither 1.6 does confidential information in cross-examining Sheila. I. RULE 1.6 REQUIRES DEFENDANTS' Rule 1.6 rather, a lawyers to the does waiver not from WAIVER. require disqualification Defendants. Rule ''maintain in confidence all professional relationship with a here, 1.6(a) but requires information gained in client." Smallwood argues that Spearman would violate Rule 1.6 by cross-examining Sheila, This is especially as to her credibility. certainly Liqhtbourne v. (per curiam) "a Duqqer, potential 829 F.2d Dkt. conflict 1012, 1023 No. of 87 interest." (11th Cir. ("An attorney who cross-examines a at 5. 1987) former client inherently encounters divided loyalties."); see also Porter v. Wainwriqht, 805 F.2d 930, asserts that [his 939 (11th Cir. 1986) attorney] was forced to ("[Complainant] choose between discrediting his former client through information learned in confidence, or foregoing vigorous cross-examination . . . . If true, these assertions would suffice to demonstrate an actual conflict of interest."). But Defendants can retain Spearman even knowing that he ''is precluded from using some potentially critical information" Chisolm, No. 19, "the CV412-041, 2012). Such a Court in will [Defendants' ] cross-examining 2012 WL 6645643, waiver require "must be an [Spearman] attention and have Sheila. at *5 (S.D. Ga. v. Dec. informed decision," to bring this them state they understand and accept the risk." Herron Id. so matter in writing to that (emphasis added). II. RULE 1.9 DOES NOT REQUIRE DISQUALIFICATION. Rule because 1.9 the Sheila's not current 2006 attorney does from require action divorce. is Rule "represent[ing] Spearman's not disqualification, substantially 1.9(a) bars another a related to party's previous person in ... a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, writing." Spearman was once Sheila's attorney. confirmed in Defendants' interests are materially adverse to hers and Smallwood's, and the Court will assume Sheila has not waived her objection. Still, the present matter is not substantially related to the 2006 divorce. In deciding this, precise the former nature of relationship representations." (citation omitted). the Court looks to "the between Hermann, Smallwood has 199 to F. the present App'x identify at and 752 specific ^'subject matters, former issues, representation" and causes of action presented in so the Court can decide whether proceedings ^^have both material and logical connections." V. Am. Cast Iron Pipe Co., Duvall V. see Inc., Bledsoe, also Duncan 617 v. 646 F.2d 1020, 847 F.2d 725, S.E.2d Merrill 1032 (^'[The knowledge movant] of the Lynch, Paluk, must (11th Cir. (Ga. Pierce, 742 F.2d 181, that [things] which him or Sheila['s] . . by . education level, & Smith, (5th Cir. attorney] are the has subject suit."). cross-examination Sheila 2005); disavowed on 185 [the Cox 1988); App. Fenner Smallwood has not carried this burden. Spearman's Ct. Unit B 1981), prove particular matter of [the present] 605 (5th Cir. other grounds by Gibbs v. 1984) 601, 730 the using could ^'discredit ^'confidential finances, He merely claims relationships, job history, and . . or embarrass" information children, about character, . sexual history." Dkt. No. 87 at 7. That is not enough, as is evident from Duvall v. Bledsoe, . 617 S.E.2d 601 (Ga. Ct. App. 2005) . There, attorney had represented the movant—a doctor—in a the subsequent creation of a trust. Id. at 605. had [the "obtained finances." attorney medical information Id. from But this representing malpractice and about was a not wrongful divorce and The attorney movant's] personal enough to disqualify plaintiff death. suing Id. the the at movant 603, the for 605. Disqualification in Duvall would have prevented the attorney from ever taking a case against the movant where damages were sought, and this would selection of counsel. safeguards against confidential disbarment. ''unduly Id. curtail" Besides, attorney's the at 605. misuse information, including But the hers is and not Smallwood's divorce. the in few years later. free him this from her divorce. from already he representing race-discrimination Holding otherwise would bar found and besides, Spearman out from during using Sheila's "Since the same subject matter is not involved and that of representation occurred during the did time not of grow [the representation," Spearman will not be disqualified. Med. of Spearman may well choice of counsel, information circumstances event movant's possibility Sheila disqualify disciplinary measures confidential about opponents severely limit parties' any facts enough to suit filed quite a other the Id. learned confidential that free there were other of The Court sees clear parallels here. have parties' Inv., Ltd. (Ga. Ct. App. v. 1989} Nat'l Healthcorp. L.P., out of an earlier] Knoxville 385 S.E.2d 110, 112 (per Benham, J.). CONCLUSION Plaintiff's dkt. no. 87, Motion is DENIED. to Disqualify However, Defendants' Attorney, Spearman will FILE with the Court within informed 7 waiver days of today's indicating that he will not in any way, use any attorney. confidential Defendants' this motion, dkt. no. that Order they Defendants' understand written, and accept including for cross-examination, information he acquired as Sheila's Emergency Motion to Expedite Ruling on 89, is GRANTED. Defendants' Contingent Motion to Stay All Proceedings Pending Ruling on this motion, dkt. no. 90, is DENIED as moot. SO ORDERED, this 21st day of March, 2017. LIl^ GODBEY WOCS^D, UNITED STATES SOUTHERN CHIEF JUDGE DISTRICT DISTRICT COURT OF GEORGIA

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