Genova v. Kellogg et al
Filing
34
MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 11/21/2012.Mailed notice(sct, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEROME P. GENOVA,
Plaintiff,
vs.
ERIC KELLOGG, JOSEPH LETKE,
LETKE & ASSOCIATES, INC., and
the CITY OF HARVEY,
Defendants.
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12 C 3105
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Now before the Court is Defendants Eric Kellogg’s (“Kellogg”) and the City of
Harvey’s (“Harvey”) (together “ Defendants”) motion to disqualify Plaintiff’s counsel
under Northern District of Illinois Local Rules 83.51.9(a) (“Rule 1.9(a)”). For the
following reasons, the motion is granted.
BACKGROUND
From April of 2003 until June 16, 2011, attorney Eydie R. Glassman
(“Glassman”) represented Harvey, an Illinois municipality, its mayor, officers, elected
officials, or employees in over sixty civil cases while with the law firm Johnson & Bell,
Ltd (“J&B”).1 The vast majority of these cases called for Glassman to defend against
claims brought under 42 U.S.C. § 1983 (“section 1983”) arising from allegations of
police misconduct and corrupt hiring practices. Glassman left J&B in July 2012 to open
her own law practice and has not represented Harvey or any of its officers or employees
since that time.
On April 26, 2012, Plaintiff Jerome Genova (“Genova”) filed a claim under
section 1983 against Harvey; Kellogg, Harvey’s mayor; Joseph Letke (“Letke”),
Harvey’s comptroller; and Letke & Associates, Inc. (“L&A”), Genova’s former
employer and the accounting firm which Letke served as president. The complaint
alleges that Genova and his wife were supporters of Kellogg’s opponent during the
1999 and 2003 Harvey mayoral elections, that Kellogg threatened to remove Letke from
his position as comptroller unless he fired Genova from L&A, and that Letke
succumbed to Kellogg’s threats by discharging Genova on April 29, 2010. On August
11, 2012, Glassman filed her appearance with the Court as Genova’s attorney. Prior to
appearing in this matter, Glassman attests that she conducted a conflict of interest check
by reviewing court records and her own case files to ensure that no conflict existed in
1
Although Glassman claims that her last representation of Harvey ceased in April of 2012,
the Court’s review of PACER records indicates that she remained as counsel for Harvey and two
police officers in Hobby v. P.O. Waltz, No. 11-cv-1064, until the case was dismissed on June 16,
2011.
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this matter. Satisfied that none existed, Glassman proceeded to represent Genova in this
matter.
On September 7, 2012, Defendants’ counsel sent a letter to Glassman demanding
that she withdraw from this matter in light of her continuing duties of loyalty and
confidentiality to the Defendants. Glassman refused to do so, denying that her prior
representation of the Defendants imparted any confidential information relevant to this
matter. The Defendants now bring the instant motion, and with the parties having fully
briefed their arguments, we proceed to decide whether disqualification is appropriate.
LEGAL STANDARD
When considering a motion to disqualify counsel, courts must strike a balance
between two important values: “the sacrosanct privacy of the attorney-client
relationship (and the professional integrity implicated by that relationship) and the
prerogative of a party to proceed with counsel of its choice.” Schiessle v. Stephens, 717
F.2d 417, 419-20 (7th Cir. 1983). Disqualification is a “drastic measure,” a remedy that
is appropriate only when “absolutely necessary.” Id. at 420. The moving party bears
the burden of showing facts warranting disqualification. Van Jackson v. Check ‘N Go
of Ill., 114 F. Supp. 2d 731, 732 (N.D. Ill. 2000). Nevertheless, doubts as to the
existence of a conflict must be resolved in favor of disqualification. Id. (citing United
States v. Goot, 894 F.2d 231, 235 (7th Cir. 1990)).
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DISCUSSION
The Defendants urge the Court to disqualify Glassman from this matter because
the factual circumstances underlying Genova’s claim are sufficiently similar to claims
that Glassman defended against on behalf of the Defendants. Genova responds that the
Defendants have not met their burden in establishing a conflict of interest. Rule 1.9,
adopted from the Model American Bar Association Model Rules of Professional
Conduct, governs whether a conflict of interest with a former client precludes an
attorney from representing another client. Rule 1.9(a) provides:
A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which the person’s interests are materially adverse to the
interests of the former client unless the former client consents after
disclosure.
There is no dispute that Genova’s interests are adverse to those of the Defendants
and that the Defendants have not consented to Glassman’s representation of Genova.
The propriety of Glassman’s representation therefore depends on whether Genova’s
claim against the Defendants is “substantially related” to her prior representation of the
Defendants.
In determining whether two cases are “substantially related,” the Court considers
“whether it could reasonably be said that during the former representation the attorney
might have acquired information related to the subject matter of the subsequent
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representation.” LaSalle Nat’l Bank v. Lake Cnty., 703 F.2d 252, 255 (7th Cir. 1983).
The following three-step inquiry guides our analysis on this question:
First, the trial judge must make a factual reconstruction of the scope of the
prior legal representation. Second, it must be determined whether it is
reasonable to infer that the confidential information allegedly given would
have been given to a lawyer representing a client in those matters. Third,
it must be determined whether that information is relevant to the issues
raised in the litigation pending against the former client.
Id. at 255-56.
The Defendants cite three cases2 with similar circumstances as the instant action
in which Glassman acted as their attorney. In the three cases, brought in 2006 and
2007, the Defendants were sued for Kellogg’s alleged hiring, disciplining or termination
of police officers based solely on the officers’ political allegiance to him. All three
cases eventually settled and were dismissed pursuant to Federal Rule of Civil Procedure
41. In light of the factual allegations giving rise to the three actions coupled with
Glassman’s representation of the Defendants in those actions, the Court finds it
reasonable to infer that Glassman learned of confidential information pertaining to
Harvey’s employment practices and Kellogg’s use of political power as a means to
affect Harvey’s employment practices.
2
Glassman represented the Defendants in Sutton v. City of Harvey, Case No. 06-cv-1365;
Loggins v. City of Harvey, Case No. 06-cv-3248; and Mason v. Kellogg, Case No. 07-cv-1809.
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Glassman responds in her brief and affidavit that she never actually learned of
any confidential information that would be prejudicial to the Defendants in this matter.
Glassman may well be correct. However, our inquiry does not turn on whether
confidential information was in fact exchanged. Rather, the appropriate focus is
whether “the lawyer could have obtained confidential information in the first
representation that would have been relevant in the second.” Analytica, Inc. v. NPD
Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983) (emphasis added). Whether
Glassman actually learned of confidential information pertaining to the Defendants is
irrelevant to our determination. Id. at 1267.
Finally, as in the prior actions, the focus of Genova’s action is centered on
Kellogg’s alleged political corruption. Genova claims that Kellogg leveraged his
political power to have him fired for supporting Kellogg’s erstwhile political rival. As
was the case in the prior three actions, allegations of Kellogg improperly using his
political power to have persons hired or fired serve as a necessary predicate to Genova’s
claim. Furthermore, it is reasonable to infer that Glassman’s prior representation
informed her of Kellogg’s modus operandi with respect to his use of clout to make
hiring and firing decisions. In light of the similarities in the circumstances underlying
the instant claim and the three prior actions, the Court finds that the confidential
information likely to have been shared with Glassman during her representation of the
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Defendants is relevant to the instant claim. Accordingly, the Court concludes that
Glassman’s current representation is substantially related to her prior representation,
and that disqualification is appropriate.
CONCLUSION
For the foregoing reasons, the Defendants motion to disqualify Glassman from
representing Genova in this matter is granted.
Charles P. Kocoras
United States District Judge
Dated:
November 21, 2012
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