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)

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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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