Revis v. Davis
Filing
93
ORDER denying 86 Motion to Disqualify Counsel; granting 91 Emergency Motion to Expedite Ruling on this motion, and denying as moot 92 Defendants' Contingent Motion to Stay. However, Spearman will FILE with the Court within 7 days of toda y'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)
3n
^totess IBtfiCtritt Court
for tfie ^ottlliem IBiotritt of (fleorgta
li^aparooo Bifitoion
LAWRENCE REVIS,
JR.,
Plaintiff,
No.
V.
5:14-CV-88
T&A FARMS, TIMOTHY DALE DAVIS,
ALPHINE DAVIS, and STAGEY
DINWIDDIE,
Defendants.
ORDER
Plaintiff
Defendants'
Lawrence
attorney,
Spearman
must
conflict
of
Smallwood
Revis,
Huey
file
(^'Sheila'
Jr.'s
Spearman,
Defendants'
interest
as
to
Dkt.
No.
motion
will
waiver
to
be
of
disqualify
DENIED,
his
cross-examination
but
potential
of
Sheila
Revis'
motion
86.
Background
The
Court
alleges.
assumes
the
truth
of
the
facts
Sheila divorced from her ex-husband on October 16,
2006, pursuant to an order prepared by Spearman, who was her
attorney.
divorce,
A0 72A
(Rev. 8/82)
Dkt.
No.
^'Spearman
86-1.
learned
While representing Sheila in the
confidential
information
about
[her]
finances,
level,
relationships,
children,
character, education
job history, and sexual history."
Dkt. No. 86 at 7.
Spearman now represents Defendants, who are Revis'
employers,
in this race-discrimination suit,
October 28,
2014.
witness
this
2017,
in
this
judgment.
Dkt. No.
case.
Court
1.
Dkt.
denied
which was filed
Sheila will be a
No.
86
at
Defendants'
2.
substantive
On
January
motion
for
13,
summary
Dkt. No. 82.
Revis filed the present motion on March 15,
No.
former
86.
His
attorneys
just
learned
of
2017.
Dkt.
Spearman's
prior
representation of Sheila, as Spearman did not disclose it to
them.
Defendants,
know
she
could
or the Court,
seek
his
and Sheila herself did not
disqualification.
• Id.
at
2-3.
Spearman responded by claiming he had no idea Sheila {whose
name
has
motion.
any
changed)
Dkt. No.
confidential
here.
was
Id.
at
his
former
90 at 2.
client
until
the
present
He denies knowing or remembering
information
about
her
that
could be
used
3.
LEGAL
STANDARD
Motions to disqualify are governed by this Court's local
rules
and
federal
199 F. App'x 745,
common
752
Schlumberqer Techs.,
Cir.
1997)
law.
Hermann
(11th Cir.
2006)
Inc.
v.
Wiley,
v.
GutterGuard,
Inc.,
(per curiam); see also
113 F.3d 1553,
("The court must clearly identify a
1561
(11th
specific Rule
.
.
.
applicable
conclude
Local
that
Rule
to
the
the
relevant
attorney
83.5(d)
jurisdiction
and
violated
that
.
incorporates
the
rule
.
Georgia
must
.
Rules
of
Professional Conduct.
^MA]ny doubts as to the existence of a
violation of the
rules should be resolved in favor of disqualification."
V.
InfoCure
(N.D.
Ga.
May
original) .
grounds
Corp.,
No.
13,
1:01CV2845,
2003)
(citation
for
disqualification,"
Herrmann v.
6076877,
WL
22149656,
*2
(alteration
omitted)
at
in
But the movant ""bears the burden of proving the
and
impropriety is no longer grounds."
752;
2003
Jones
at
GutterGuard,
*8
(N.D.
Ga.
mere
Hermann,
Inc.,
Dec.
Disqualification is disfavored,
""the
No.
21,
as
appearance
199 F. App'x at
1:04-CV-0365,
2005)
it is
J.) .
""a harsh sanction,
especially
. where extensive discovery and trial preparation
have been completed."
689 F.2d 938,
2005 WL
(Games,
often working substantial hardship on the client,
in cases . .
of
941 n.4
Norton v.
(11th Cir.
Tallahassee Memorial Hosp.,
1982).
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,
68 9 F.2d at n.4.
it
is
granted only
DISCUSSION
Revis'
Rules:
motion
1.6
requires
require
and
will
1.9.
be
See
Spearman's
denied.
He
raises
generally
Dkt.
No.
disqualification,
Defendants'
waiver
of
but
his
two
86.
Rule
use
of
Georgia
Neither
1.6
does
confidential
information in cross-examining Sheila.
I. RULE 1.6 REQUIRES DEFENDANTS' WAIVER.
Rule
rather,
1.6
a
does
waiver
not
require
from
disqualification
Defendants.
Rule
here,
1.6(a)
but
requires
lawyers to ^'maintain in confidence all information gained in
the professional relationship with a
that
Spearman
would
violate
Rule
client."
1.6
by
Sheila, especially as to her credibility.
This
is
certainly
Liqhtbourne v.
(per curiam)
^^a
Duqqer,
potential
cross-examining
Dkt. No.
conflict
829 F.2d 1012,
Revis argues
1023
of
86 at 5.
interest."
(11th Cir.
1987)
(^'An attorney who cross-examines a former client
inherently encounters divided loyalties."); see also Porter v.
Wainwriqht,
asserts
805 F.2d 930,
that
[his
939
attorney]
(11th Cir. 1986)
was
forced
to
(^MComplainant]
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,
19,
''the
No.
CV412-041,
2012).
Such a
Court
in
will
[Defendants']
cross-examining
2012 WL 6645643,
waiver
require
Sheila.
at *5
Herron
(S.D.
Ga.
Dec.
'''must be an informed decision,"
[Spearman]
attention and have
to
bring
this
matter
them state in writing
they understand and accept the risk."
Id.
v.
so
to
that
(emphasis added).
II. RULE 1.9 DOES NOT REQUIRE DISQUALIFICATION.
Rule
because
1.9
the
Sheila's
does
not
current
require
action
2006 divorce.
attorney
from
Spearman's
is
Rule
"represent[ing]
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."
confirmed in
Spearman was once Sheila's attorney.
Defendants'
interests are materially adverse to hers and Revis',
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
nature
the
former
representations."
of
(citation omitted).
matters,
issues,
representation"
and
so
relationship
the Court looks to "the
between
Hermann,
199
the
F.
present
App'x
at
and
752
Revis has to identify specific "subject
causes
the
of
Court
action
can
presented
decide
in
former
whether
the
proceedings ^""have both material and logical connections."
V. Am. Cast Iron Pipe Co.,
Duvall
see
V.
also
Inc.,
Bledsoe,
Duncan
617
v.
847 F.2d 725,
S.E.2d
Merrill
646 F.2d 1020,
1032
(^'[The
knowledge
of
movant]
the
Revis
has
Lynch,
Paluk,
must
not
carried
this
Sheila
using
.
.
finances,
level,
that
[the
which
burden.
could
"confidential
relationships,
job history,
601
represented
(Ga.
the
App.
are
Smith,
(5th Cir.
the
has
subject
merely
"discredit
information
children,
2005).
movant—a
embarrass"
about
Sheila['s]
Dkt.
"obtained information about
the
a
education
No.
[the movant's]
86 at 7.
Bledsoe,
617
attorney
had
divorce
Id. at 605.
claims
or
character,
There,
doctor—in
subsequent creation of a trust.
Id.
2005);
attorney]
He
and sexual history."
Ct.
&
185
That is not enough, as is evident from Duvall v.
S.E.2d
App.
Fenner
F.2d 181,
[things]
cross-examination
.
Ct.
suit.").
Spearman's
by
(Ga.
Pierce,
742
prove
particular
matter of [the present]
605
(11th Cir. 1988);
(5th Cir. Unit B 1981), disavowed on
other grounds by Gibbs v.
1984)
601,
730
Cox
and
the
The attorney had
personal finances."
But this was not enough to disqualify the attorney from
representing
malpractice
a
plaintiff
and
Disqualification in
from ever taking a
suing
wrongful
death.
the
movant
Id.
at
for
603,
medical
605.
Duvall would have prevented the attorney
case against the movant where damages were
6
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
filed
not
any
quite
a
to
opponents
few
about
this
later.
free
of
Spearman may well
him
from her divorce.
from
Holding
already
he
representing
race-discrimination
otherwise
choice of counsel,
information
bar
out
would
and besides,
Spearman
found
suit
from
during
using
Sheila's
"Since the same subject matter is not involved and
circumstances
that
of
representation
occurred
during
the
did
not
time
of
grow
out
[the
representation," Spearman will not be disqualified.
Med.
movant's
possibility
Sheila
disqualify
in
years
parties'
confidential
event
facts
disciplinary measures
divorce.
the
enough
Revis'
severely limit
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.
(per Benham,
L.P.,
of
an
earlier]
Knoxville
385 S.E.2d 110,
112
J.).
CONCLUSION
Plaintiff's
dkt.
Court
no.
86,
within
informed
Motion
is DENIED.
7
waiver
days
of
to
Disqualify
However,
today's
indicating
that
Defendants'
Attorney,
Spearman will FILE with the
Order
they
Defendants'
understand
written,
and
accept
that he will not in any way,
use
any
attorney.
confidential
Defendants'
this motion,
dkt.
no.
including for cross-examination,
information
he
acquired
as
Sheila's
Emergency Motion to Expedite Ruling on
91,
is GRANTED.
Defendants'
Contingent
Motion to Stay All Proceedings Pending Ruling on this motion,
dkt.
no.
92,
is DENIED as moot.
SO ORDERED, this 21st day of March,
2017.
LISA GODBEY WOOD,
UNITED STATES
CHIEF JUDGE
DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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