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)

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