Sailsbery v. Village of Sauk Village et al

Filing 31

OPINION AND ORDER. The Court denies Sailsbery's motion to disqualify 9 . McGrath is directed to file an affidavit by April 29, 2016 that he has fully disclosed to the Village and Fairman the risks and advantages of concurrent representation and that the Village and Fairman have provided written informed consent to McGrath and the Firm serving as Fairman's counsel in this lawsuit. Signed by the Honorable Sara L. Ellis on 4/11/2016: Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
REBECCA SAILSBERY,

)
)
Plaintiff,
)
)
v.
)
)
VILLAGE OF SAUK VILLAGE, an Illinois
)
Municipality; MAYOR DAVID HANKS,
)
Individually; J.W. FAIRMAN, individually
)
and in his official capacity as Public Safety
)
Director; FAIRMAN CONSULTANTS, LTD. )
an Illinois Corporation,
)
)
Defendants.
)

No. 15 C 10564
Judge Sara L. Ellis

OPINION AND ORDER
Passed over for chief of police and later demoted, Plaintiff Rebecca Sailsbery, a police
sergeant for the Village of Sauk Village (the “Village”), sues Defendants the Village, Village
Mayor David Hanks, Village Public Safety Director, J.W. Fairman, and Fairman’s consulting
company, Fairman Consultants, Ltd. (“Fairman Consultants”), alleging discrimination and
retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et seq.,
and 42 U.S.C. §§ 1981 and 1983. Sailsbery moves to disqualify Fairman’s attorney in this
lawsuit, Michael McGrath, and his law firm, Odelson & Sterk (the “Firm”), contending that (1)
she has an attorney-client relationship with McGrath and the Firm creating a conflict with their
representation of Fairman here, which she will not waive; (2) McGrath has a conflict as an
attorney-witness in this lawsuit; and (3) although not pertinent to Sailsbery herself, the Firm’s
representation of Fairman in this lawsuit conflicts with its current representation of the Village in
other matters based on Sailsbery’s punitive damages claim. The Court denies Sailsbery’s motion
to disqualify [9] because Sailsbery has not established that McGrath and the Firm currently

represent or formerly represented her on a substantially related matter. Further, at this stage, it is
speculative and premature to disqualify McGrath and the Firm either because Sailsbery believes
McGrath may be a witness at trial or because the Firm represents Fairman here and represents
the Village in other matters.
BACKGROUND
On November 23, 2015, Sailsbery, a current Village police sergeant and formerly the
deputy chief of police (and also, she claims, de facto chief of police), sued Defendants for
discrimination, retaliation, and failure to promote. Sailsbery alleges that the Village failed to
promote her to chief of police because of her gender and also retaliated against her in multiple
promotion and demotion decisions due to other complaints and lawsuits she brought against the
Village and Village officials, including an Equal Employment Opportunity Commission
(“EEOC”) charge relating to the events at issue here. According to the Complaint, after
Sailsbery filed an EEOC charge against the Village on April 29, 2015, the Village began
investigating her claims while Fairman and Hanks sought to terminate her, including by
overworking her and filing false complaints against her. Although not fired, she was demoted to
sergeant and then detective sergeant.
After Sailsbery initiated suit, McGrath and the Firm 1 filed an appearance on behalf of
Fairman, and Sailsbery brought the present motion to disqualify. In her motion, Sailsbery
establishes, and Fairman does not contest, that the Firm has current attorney-client relationships
with Fairman here, the Village in other matters, and a prior attorney-client relationship with
Hanks, which still may be ongoing, although the Del Galdo Law Group represents the Village
and Hanks in this lawsuit. The Firm has been the “village attorney” since 2011, with McGrath
1

Two other Firm attorneys, Richard F. Bruen, Jr. and Lesley Quade Kennedy, also have filed
appearances on behalf of Fairman.

2

working on numerous matters for the Village. Doc. 9 at 2. While Sailsbery claims that McGrath
and the Firm also represent Fairman Consultants, McGrath has only filed an appearance for
Fairman and Fairman Consultants is currently unrepresented in this lawsuit. 2
At the heart of Sailsbery’s motion, she claims that the Firm and McGrath have also
represented her in several matters:
1)

Robert Smith’s EEOC Charge

Sailsbery states that in 2012, the Firm represented her individually in an EEOC
investigation of Village police officer Robert Smith’s charge of discrimination. Smith filed a
charge against the Village alleging that Sailsbery and the former chief of police discriminated
against him. Sailsbery claims that the EEOC charge was directed at her, not the Village, and
states she was “represented and advised to meet with” a Firm attorney “to discuss case strategy
and provide responsive documentation.” Doc. 9 at 2. During the Village’s investigation of and
response to the charge, Sailsbery provided information to the Firm so that it could draft the
Village’s position statement, and she and other Village officials received emails from Firm
attorneys, including emails attaching confidential drafts of the Village’s position statement, with
subject lines stating the emails were confidential and privileged. The emails also specifically
noted Sailsbery’s assistance with the Village’s response and informed her that the charge was
resolved. Sailsbery contends that her actions underlying the charge and her involvement in the
response to the charge will “presumably” be at issue in this lawsuit. Doc. 9 at 2.
2)

The Taser and Civil Rights FOIA Requests

Sailsbery maintains that the Firm continues to represent her personally in the Village’s
response to two Freedom of Information Act (“FOIA”) requests related to third-party claims
against the Village. After a Village police officer used a taser on a juvenile, the boy’s attorney
2

Sailsbery also claims that Fairman Consultants is the alter ego of Fairman.

3

sent a FOIA request to the Village in September 2014. Sailsbery says the Firm represented her
in “preparing a strategy and responding to” the FOIA request. Doc. 9 at 3. Similarly, in August
2015, after a woman received medical treatment following a self-inflicted injury, the woman sent
a FOIA request to the Village in preparation for a civil rights lawsuit. The Firm sent an attorney
to meet with Sailsbery to “discuss” and “prepare” a response to the second FOIA request. Id. at
3–4. Sailsbery says the Firm still represents her personally with regard to both FOIA requests
and contends that the FOIA requests are relevant to this case because Fairman implicated her as
being responsible for the underlying incidents.
3)

Legal Advice on Fairman’s Orders

Sailsbery also relates that while she was deputy chief of police, Fairman gave her
burdensome orders and work in the hopes of overwhelming her and subjecting her to discipline.
Sailsbery represents that she “sought and received legal advice from Attorney McGrath” to
determine whether she was required to follow Fairman’s orders. Id. She contends that
McGrath’s legal advice will be at issue in this case because Fairman’s orders were retaliatory.
4)

The O’Sullivan Lawsuit

Finally, in a 2013 lawsuit filed in the Circuit Court of Cook County against the Village,
Sailsbery in her individual and official capacities, and other Village officials and trustees,
captioned O’Sullivan v. Village of Sauk Village et. al., No. 13 L 012111 (the “O’Sullivan
Lawsuit”), the Firm had an appearance on file for Sailsbery and the acting Village chief of
police, Timothy Holevis, until it was replaced by Johnson & Bell on December 9, 2013. At the
same time that Johnson & Bell entered its appearance, the defendants received additional time to
answer or otherwise respond to O’Sullivan’s claims.

4

LEGAL STANDARD
A motion to disqualify counsel requires a two-step analysis where a court (1) considers
whether there is an ethical violation and if so, then, (2) determines whether disqualification is
appropriate to remedy the violation. alfaCTP Sys., Inc. v. Nierman, No. 15-cv-9338, 2016 WL
687281, at *4 (N.D. Ill. Feb. 19, 2016). Disqualification of counsel is a “drastic measure”
imposed only “when absolutely necessary.” Black Rush Mining, LLC v. Black Panther Mining,
840 F. Supp. 2d 1085, 1089 (N.D. Ill. 2012) (quoting Schiessle v. Stephens, 717 F.2d 417, 420
(7th Cir. 1983)). Because disqualification deprives a party of the representation of their choice,
disqualification motions—although sometimes legitimate and necessary—are “viewed with
extreme caution for they can be misused as techniques of harassment.” Freeman v. Chicago
Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982). “There must be solid evidence to
support an allegation of conflict.” Fematt v. Finnigan, No. 11-cv-1530, 2012 WL 3308759, at
*2 (N.D. Ill. Aug. 13, 2012). The moving party therefore bears a heavy burden of proving the
facts required for disqualification. alfaCTP Sys., Inc., 2016 WL 687281, at *4; Guillen v. City of
Chicago, 956 F. Supp. 1416, 1421 (N.D. Ill. 1997).
ANALYSIS
Sailsbery argues three reasons why McGrath and the Firm 3 should be disqualified from
representing Fairman in this lawsuit: (1) McGrath and the Firm are also her attorneys and she has
not consented to waive the conflict raised by their adverse representation of Fairman, (2)
McGrath will be a necessary witness for her discrimination and retaliation claims, and (3) the
Firm’s representation of Fairman is materially limited by its concurrent loyalty to the Village,

3

Although Sailsbery frequently refers solely to McGrath in her memoranda, it is clear that she
seeks the disqualification of both McGrath and the Firm for all the reasons in which she references
McGrath, so the Court treats her references to McGrath as references to McGrath and the Firm where
applicable.

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who is also a Defendant here, because Fairman faces punitive damages. 4 The Court addresses
Sailsbery’s arguments in turn.
I.

Conflicts Based on the Firm’s and McGrath’s Attorney-Client Alleged
Relationships with Sailsbery
Sailsbery argues that she has a current attorney-client relationship with the Firm because

they continue to represent her on matters relating to the FOIA requests and that she previously
had attorney-client relationships arising out of the Smith EEOC Charge and advice she received
concerning Fairman’s orders. Fairman and his attorneys dispute that an attorney-client
relationship was ever formed; however, if a current attorney-client relationship exists, McGrath
and the Firm cannot represent Fairman adversely to Sailsbery. See alfaCTP Sys., Inc., 2016 WL
687281, at *4. Model Rule 1.7 states that a lawyer ordinarily “shall not represent a client if the
representation involves a concurrent conflict of interest,” which exists if (1) “the representation
of one client will be directly adverse to another client” or (2) “there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer’s responsibilities to
another client, a former client or a third person or by a personal interest of the lawyer.” Model
Rules of Prof’l Conduct r 1.7(a). 5

4

While the parties argue for and against disqualification based on varying sources of ethical rules,
the Court analyzes Sailsbery’s motion under the American Bar Association’s Model Rules of Professional
Conduct (“Model Rules”), which this district has generally adopted as its rules of professional conduct.
See N.D. Ill. L.R. 83.50. Civil Local Rule 83.50 establishes one exception to its general adoption of the
Model Rules and instructs the Court to turn to the “rules of Professional Conduct in the state in which the
lawyer’s principal office is located” when the Model Rules are silent on the issue raised or are
inconsistent with the state’s rules. Id. McGrath is admitted to practice in Illinois and the Firm’s office is
located in Evergreen Park, Illinois, meaning that the Court would turn to the Illinois Rules of Professional
Conduct after the Model Rules. See id. The Court has not found the Model Rules at issue to be lacking
in guidance on the issues at hand nor to be materially inconsistent with their analogues in the Illinois Rule
of Professional Conduct.

5

Notwithstanding the existence of such a concurrent conflict of interest under Model Rule 1.7(a),
the lawyer may represent the client if (1) “the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected client,” (2) “the representation is not
prohibited by law,” (3) the representation does not involve the assertion of a claim by one client against

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A different test applies to former representations where there is no current attorney-client
relationship with Sailsbery but there was a prior relationship. In instances where an attorney is
adverse to a former client, which Sailsbery also alleges here, Model Rule 1.9 provides that a
lawyer who “formerly represented a client in a manner shall not thereafter represent another
person in the same or 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,
confirm[ed] in writing.” Model Rules of Prof’l Conduct r. 1.9(a). To determine whether a
former relationship is substantially related to a current relationship, the Seventh Circuit uses a
three-part analysis in which: (1) the Court makes a factual reconstruction of the scope of the
former legal representation, (2) the Court determines whether it is reasonable to infer that the
confidential information allegedly exchanged in the former representation would have been
given to a lawyer representing a client in such matter, and (3) the Court determines whether the
information is relevant to the issues raised in the pending litigation adverse to the former client.
LaSalle Nat’l Bank v. County of Lake, 703 F.2d 252, 255–56 (7th Cir. 1983). If, after evaluating
the facts, there is a substantial relationship between the representations, then a presumption
arises that the attorney received relevant confidential information during the prior representation,
which can sometimes be rebutted. Id. at 256; see also Analytica, Inc. v. NPD Rsh., Inc., 708 F.2d
1263, 1267 (7th Cir. 1983) (unrebuttable presumption where entire firm switches sides on issue).
But the Court need not consider these questions under Model Rules 1.7 or 1.9 if no
attorney-client relationship exists or existed between Sailsbery and McGrath and the Firm. See
Fematt, 2012 WL 3308759, at *3 & n.1 (finding no error in magistrate judge’s decision to forego
“substantially related” test after determining that no attorney-client relationship existed).
another client represented by the lawyer in the same litigation or other proceeding before a tribunal,” and
(4) “each affected client gives informed consent, confirmed in writing.” Model Rules of Prof’l Conduct
r. 1.7(b).

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Therefore Sailsbery first has the burden to demonstrate a current or former attorney-client
relationship. See Black Rush Mining, LLC, 840 F. Supp. 2d at 1090 (analyzing attorney-client
relationship first when determining whether client conflict existed).
The attorney-client relationship can be express or implied through formal or informal
consent. See Westinghouse Elec. Corp. v. Kerr-McGee Corp. (Westinghouse I), 580 F.2d 1311,
1316–17, 1319–20 (7th Cir. 1978); Black Rush Mining, LLC, 840 F. Supp. 2d at 1090; Mindy’s
Rest., Inc. v. Watters, No. 08 C 5448, 2009 WL 500634, at *2 (N.D. Ill. Feb. 27, 2009). 6 “An
attorney-client relationship exists when the lay party submits confidential information to the law
party with reasonable belief that the latter is acting as the former’s attorney.” Fematt, 2012 WL
3308759, at *2 (citation omitted). While an express attorney-client relationship is often
accompanied by a formal contract or a payment of fees, a court can find an implied relationship
after considering factors such as the nature of the work performed and the circumstances in
which confidential information was exchanged. See Black Rush Mining, LLC, 840 F. Supp. 2d at
1090; Mindy’s Rest., Inc., 2009 WL 500634, at *2.
A.

Implied Relationships Relating to Sailsbery’s Police Duties in the Smith
EEOC Charge, FOIA Responses, and Fairman’s Orders

In her opening brief, Sailsbery claims that she has formed several implied attorney-client
relationships while the Firm has served as the Village’s counsel. This argument, however,
assumes that an attorney for the Village is also the attorney for the Village’s employee and
ignores Seventh Circuit law and the Model Rules’ statements to the contrary that “[a] lawyer
6

Fairman argues for and bases his opposition on a much more exacting standard, where an
attorney-client relationship exists only if “both the attorney and the client consent to its formation,” the
client “explicitly authorize[s] the attorney to work,” and the attorney “indicate[s] an acceptance of that
authority to work.” Doc. 17 at 3 (quoting Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart
Fine Wine, Ltd., 909 N.E.2d 848, 861, 392 Ill. App. 3d 1, 330 Ill. Dec. 826 (Ill. Ct. App. 2009)); see also
id. at 5. The Seventh Circuit has made clear that this is not the law in federal court. See Westinghouse I,
580 F.2d at 1320; GTE N., Inc. v. Apache Prods. Co., 914 F. Supp. 1575, 1578 (N.D. Ill. 1996) (“Ethical
questions before a district court are governed by federal case law.”).

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employed by a [governmental organization] represents the entity.” Westinghouse I, 580 F.2d at
1318; see also Model Rules of Prof’l Conduct r. 1.13(a) (“A lawyer employed or retained by an
organization represents the organization acting through its duly authorized constituents.”); id. r.
1.13, cmt. 2 (“This does not mean, however, that constituents of an organizational client are the
clients of the lawyer.”); id. r. 1.13, cmt. 9 (“The duty defined in this rule applies to governmental
organizations.”). An employee’s subjective belief that she is individually represented by the
organization’s attorney is therefore insufficient, standing alone, to create an attorney-client
relationship. See United States v. Keplinger, 776 F.2d 678, 701 (7th Cir. 1985). Rather, the
attorney or the circumstances must make the employee’s belief that she is also personally
represented at least minimally reasonable or the employee must clearly indicate to the attorney
that she believes she has formed a personal attorney-client relationship without correction from
the attorney. See id. Thus, Sailsbery cannot simply allege an attorney-client relationship with
the Village’s attorneys but must also present evidence supporting her allegation such as a
communication with a Firm attorney about the relationship or facts that make it reasonable to
find that a personal attorney-client relationship formed.
Sailsbery argues that an attorney-client relationship arose from the Smith EEOC Charge
where she helped the Firm formulate the Village’s position statement, received confidential
status reports and documents, and received communications labeled “confidential” and
“attorney-client privilege.” But Sailsbery’s involvement was on behalf of the Village—the only
named respondent—on whose behalf the Firm drafted the position statement. 7 The confidential

7

While Sailsbery argues that she was the properly named respondent by pointing out that Title VII
states employer defendants are “persons engaged in an industry affecting commerce who has fifteen or
more employees,” and specifically relying on the word “person,” she also admits that persons such as
supervisors and agents of an employer cannot be held individually liable under Title VII. See Doc. 19 at
3 (quoting 42 U.S.C. § 2000e(b)). Sailsbery’s interpretation of who is liable for discrimination under

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communications with Firm attorneys also do not demonstrate that her belief in an attorney-client
relationship was reasonable because the emails and other documents were clearly not directed
only to Sailsbery because they included other Village employees and the “confidential” legends
in emails and documents indicated simply that the communications were not for public release
outside the email group. See Bobbit v. Victorian House, Inc., 545 F. Supp. 1124, 1127–28 (N.D.
Ill. 1982) (director-shareholder overstated sharing of confidences with corporation’s attorneys
where his characterization of exchanges as “confidential” was in the sense of “non-public”).
Sailsbery also has not shown why the email that bore a “privilege” legend was meant to identify
an attorney-client relationship between the sending attorney and herself, individually, rather than
a privilege between the attorney and the Village, where she knew the Firm represented the
Village and other Village employees also received the same emails. And, while Sailsbery may
have thought that Smith’s EEOC charge targeted her personally, she has not provided evidence
that she sought out separate advice or work from the Firm. Instead, all the evidence supports the
conclusion that the Firm was retained to represent the Village—and not the individual employees
named within the charge—as the client, and that no circumstances exist under which it would be
reasonable to extend the representation to Sailsbery as well.
Similarly, for the FOIA requests, Sailsbery provides no evidence showing a reasonable
belief in a personal attorney-client relationship or that she informed the Firm she thought they
were her personal attorneys. Instead, Sailsbery only indicates that she consulted with Firm
attorneys to assist in the Village’s response to the FOIA requests, which as stated, is not
sufficient. See Keplinger, 776 F.2d at 701. She has not alleged or provided evidence that she

Title VII is not enough to show that she required an attorney for the EEOC charge filed against the
Village.

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needed or sought personal representation to answer the FOIA requests, which were directed to
the Village and not her.
Finally, Sailsbery argues that she formed an attorney-client relationship with McGrath
when she sought his legal advice to determine if she had to follow Fairman’s orders. But
Sailsbery’s conclusory allegations are insufficient to show that a personal attorney-client
relationship with McGrath developed in this consultation. She also has not alleged or provided
evidence that she communicated to McGrath that she believed he was her personal attorney,
instead implying that she sought McGrath’s advice to get the Village’s attorney’s analysis of her
concerns. Sailsbery does not articulate what was said that constituted legal advice or how that
advice would prejudice her here, only generally describing the conversations with McGrath as
seeking information about the scope of her duties as an employee of the Village’s police
department and if those duties specifically required her, the deputy chief of police, to follow the
orders of another Village official whom she did not believe was her superior in the police
department. See United States ex rel. Cericola v. Ben Franklin Bank, No. 99 C 6311, 2003 WL
21476020, at *4 (N.D. Ill. June 23, 2003) (bank employee offered no evidence that she sought
advice for personal matters rather than bank matters); Bobbitt, 545 F. Supp. at 1127 (no attorneyclient relationship formed with corporation attorney when director-shareholder sought attorney’s
advice on corporation business). Further, any belief that Sailsbery had that she was seeking
advice for her personal interests would not appear minimally reasonable in light of her
knowledge that McGrath and the Firm were her employer’s “village attorneys” since 2011. See
Cericola, 2003 WL 21476020, at *4 (bank employee offered no evidence why it would be
reasonable for her to believe attorney for bank was providing her personal legal advice).

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Therefore, the Court finds that Sailsbery has not established that she formed an implied attorneyclient relationship with McGrath and the Firm.

B.

Express Relationship Relating to the O’Sullivan Lawsuit

While Sailsbery has not provided sufficient evidence to demonstrate an attorney-client
relationship with the Firm or McGrath based on the Smith EEOC charge, the FOIA responses, or
her requests for advice on Fairman’s orders, Sailsbery may have formed an express attorneyclient relationship with the Firm because the Firm filed an appearance on her behalf in the
O’Sullivan Lawsuit. In Illinois state courts, an appearance gives rise to a rebuttable presumption
of an express attorney-client relationship. See Zych v. Jones, 406 N.E.2d 70, 74, 84 Ill. App. 3d
647, 40 Ill. Dec. 369 (Ill. Ct. App. 1980) abrogated on other grounds by Warren v. Williams, 730
N.E.2d 512, 515, 313 Ill. App. 3d 450, 246 Ill. Dec. 487 (Ill. Ct. App. 2000). The same is
suggested in the Seventh Circuit. See Keplinger, 776 F.2d at 700 n.14 (distinguishing
corporation’s lawyer “appearing” with employees at investigation meeting from lawyer filing
“formal appearance” for employees that would suggest attorney-client relationship); United
States v. Sanders, 979 F.2d 87, 90–92 (7th Cir. 1992) (in criminal case, attorney appearance form
could have been used to demonstrate attorney-client relationship).
Here, there is no dispute that the Firm filed an appearance for Sailsbery, but there is a
factual dispute as to whether Sailsbery consented to an express attorney-client relationship with
the Firm. The motion to substitute, withdrawal form, and substitution order clearly state that the
Firm filed an appearance for Sailsbery, but, because new counsel replaced the firm before the
parties filed a responsive pleading, the same documents also could suggest that Sailsbery did not
want to be represented by the Firm and chose other counsel. Ordinarily, where there is a dispute

12

of fact as to whether Sailsbery consented to an attorney-client relationship with the Firm relating
to the O’Sullivan Lawsuit, and the Court is unable to resolve the factual dispute on the limited
evidence before it, an evidentiary hearing is required. See Cromley v. Bd. of Educ. of Lockport
Twp. High Sch. Dist. 205, 17 F.3d 1059, 1064 (7th Cir. 1994) (where a district court does not
conduct an evidentiary hearing or make findings of fact, a reviewing appellate court will forego
the deferential abuse of discretion standard of review); Freeman, 689 F.2d at 721 (same); GTE
N., Inc., 914 F. Supp. at 1580 (evidentiary hearing is normally required to resolve motion to
disqualify when parties dispute facts and do not provide supporting affidavits); Kaskie v. Celotex
Corp., 618 F. Supp. 696, 700 (N.D. Ill. 1985) (ordering evidentiary hearing where parties
contested factual issues and sole affidavit was insubstantial). However, here, an evidentiary
hearing is unnecessary, because even presuming an attorney-client relationship, Sailsbery does
not argue that there is a conflict created by the O’Sullivan Lawsuit, and the evidence is
insufficient to meet her burden of establishing an ethical violation. See Mindy’s Rest., Inc., 2009
WL 500634, at *3 (presuming attorney-client relationship and determining that there was no
need for disqualification); GTE N., Inc., 914 F. Supp. at 1580 & n.5 (foregoing evidentiary
hearing where facts that were not in dispute allowed court to resolve motion to disqualify).
Presuming there was an attorney-client relationship for the O’Sullivan Lawsuit, the
relationship would have ended on or around December 9, 2013, when the state trial court granted
the Firm “leave to withdraw its appearance as counsel for Defendants Holevis and Sailsbery,”
see Doc. 17-2 at 3, and therefore would have ended almost two years before Sailsbery filed this
lawsuit on November 23, 2015. See alfaCTP Sys., Inc., 2016 WL 687281 at *4 (noting that
current versus former client status is usually determined at the time of the complaint and that
representations generally are considered to end at the conclusion of the attorney’s work for the

13

client); Kaskie, 618 F. Supp. at 700 (disqualification motion based on events that had already
occurred involved subsequent representations). Sailsbery therefore must show a violation of
Model Rule 1.9, which requires her to provide evidence of a substantial relationship between the
O’Sullivan Lawsuit representation and the Firm’s representation of Fairman in this suit.
“The substantial relationship test is not a rule of substantive law but a measure of the
quantum of evidence required for proof of the existence of the professional obligation.”
Westinghouse Elec. Corp. v. Gulf Oil Corp. (Westinghouse II), 588 F.2d 221, 224 (7th Cir. 1978)
(requiring only evidence of the scope of the legal representation rather than proof of the actual
receipt of the allegedly relevant confidential information). When analyzing a conflict under
Model Rule 1.9, the Court must first determine the scope of the prior representation and its legal
issues based on the facts of that particular situation. See id.; Model Rules of Prof’l Conduct r.
1.9, cmt. 2 (noting the purpose of Model Rule 1.9 is to ensure that an attorney cannot change
sides on a legal issue common to the prior and the current representation). Here, Sailsbery has
not provided the Court with any evidence describing the Firm’s representation of her in the
O’Sullivan Lawsuit, thus failing to meet her burden. See ATT Sys. Co. v. Tylman, No. 03 C
50326, 2004 WL 2044256, at *4 (N.D. Ill. Aug. 31, 2004) (plaintiffs’ motion to disqualify could
not be granted where they failed to provide facts sufficient to allow court to reconstruct the scope
of a prior legal representation). At best, the available evidence shows that the representation was
short lived, with the Firm replaced by Johnson & Bell before a responsive pleading was filed.
Such a short time frame suggests that the subject matter of the representation was limited and
cuts against any argument that the representation would be substantially related to Sailsbery’s
current suit. Mindy’s Rest., Inc., 2009 WL 500634, at *3 (presuming attorney-client relationship,

14

the short temporal length of the representation suggested no substantial relationship to the
current matter).
Further, presuming at this stage that confidences were exchanged between Sailsbery and
the Firm during the O’Sullivan Lawsuit, Sailsbery also has not alleged or provided any facts
showing that the confidential information would be relevant to her current lawsuit. With no
information describing O’Sullivan’s claims or Sailsbery’s defense of those claims, it is
impossible to determine whether the Firm now finds itself able to better defend Sailsbery’s
employment discrimination and retaliation claims after defending Sailsbery in the O’Sullivan
Lawsuit. See id. (no evidence that the prior representation would have provided confidential
information that was relevant to the plaintiff’s case against the defendant where plaintiff and
defendants met with attorney together). Therefore, even presuming an attorney-client
relationship in the O’Sullivan Lawsuit, the Court cannot find a conflict under Model Rule 1.9
where Sailsbery has provided no evidence that the O’Sullivan Lawsuit is substantially related to
this lawsuit.
II.

Conflicts based on McGrath serving as an Attorney-Witness
Sailsbery also seeks to disqualify McGrath and the Firm, claiming that McGrath is an

indispensable witness in this case. Model Rule 3.7 bars a lawyer from acting as the trial attorney
when he or she will likely be a “necessary witness” on a contested issue, unless disqualifying the
lawyer would create a substantial hardship for the client. Model Rules of Prof’l Conduct r. 3.7.
Sailsbery argues that McGrath “will be called as a witness in this case,” but conditions that
certitude on “if” the Village places at issue the advice it received from McGrath regarding the
Village’s investigations of Sailsbery. Doc. 9 at 8–9; see also Doc. 19 at 7.

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Sailsbery’s own statements thus undermine her argument, underscoring that disqualifying
McGrath as an attorney-witness at this stage is speculative and premature because the case is in
its infancy and it is unclear whether any advice received from McGrath will become an issue in
this case. Until Defendants respond to Sailsbery’s claims, there are no contested issues in this
case, and if the Village does raise the defenses predicted by Sailsbery, Sailsbery has not shown
why McGrath must be the one to testify, instead of, perhaps, the recipients of McGrath’s advice
and reports. It is not enough that McGrath may be the “best” witness and Sailsbery wants to call
him, specifically, to the stand; Model Rule 3.7 requires that McGrath’s testimony must be
“necessary.” Walton v. Diamond, No. 12 C 4493, 2012 WL 6587723, at *2 (N.D. Ill. Dec. 14,
2012) (a necessary witness is not the same as the best witness and the attorney’s testimony must
be unobtainable elsewhere). Sailsbery’s request is also premature because Model Rule 3.7 only
requires the disqualification of trial counsel at the time of trial and would not prevent McGrath
from representing Fairman even if McGrath were a necessary witness. See alfaCTP Sys., Inc.,
2016 WL 687281, at *6 (noting concerns of jury confusion and appearance of impropriety raised
by Rule 3.7 “do not come into play unless and until the attorney-witness is also trial counsel”);
see also Walton, 2012 WL 6587723, at *4 (declining to disqualify attorney likely to become a
necessary witness at trial where case was in early stages of litigation). Thus Sailsbery may raise
this issue at the appropriate time in this litigation, if necessary. Even if the Court were to
disqualify McGrath at that point, however, Model Rule 3.7 would not prohibit the Firm from
continuing to represent Fairman at trial. See Model Rules of Prof’l Conduct r. 3.7(b) (if a lawyer
is disqualified as a necessary witness, her firm can still participate in the trial unless another
ethical problem under Model Rule 1.7 or 1.9 exists); alfaCTP Sys., Inc., 2016 WL 687281, at *6.

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III.

Conflicts arising from the Firm’s Representation of Multiple Defendants

Sailsbery also seeks to disqualify the Firm and McGrath from representing Fairman, 8
arguing that (1) the Firm represents the Village in other matters; (2) the Firm represents Fairman
here in his defense of Sailsbery’s claims; (3) Sailsbery alleges that Fairman violated 42 U.S.C.
§ 1983 and seeks punitive damages for that violation; and (4) the Village will indemnify
Fairman, a Village official, under the Illinois Tort Immunity Act, 745 Ill. Comp. Stat. 10/2-302
for compensatory damages but not punitive damages, meaning that the Firm must choose
between framing a defense that focuses on limiting compensatory damages to please the
Village—its current client in other matters—and limiting punitive damages to please Fairman—
its current client in this litigation. 9 In situations of dual representation, the Seventh Circuit has
“rejected the almost absolute prohibition on dual representation of a municipality and its
employees” and instead required courts to remain sensitive to conflicts in order to address them
when they merit disqualification. Ross v. United States, 910 F.2d 1422, 1432 (7th Cir. 1990). A
conflict could develop here, although the risk appears small at this time. If Fairman faces
punitive damages at trial for Sailsbery’s Section 1983 claim and the Village has chosen to

8

The Court notes that Sailsbery makes this argument as to both Fairman and Fairman Consultants,
Ltd., but, at this time, McGrath and the Firm only have filed an appearance for Fairman in this case and
Fairman Consultants is currently unrepresented. Therefore, Sailsbery cannot argue either that there is a
conflict of interest created by the Firm representing Fairman Consultants or that the Firm must be
disqualified from representing Fairman Consultants.

9

The Court rejects Fairman’s argument that because Sailsbery is not the Firm’s client, she cannot
raise the issue of a conflict arising from the Firm representing Fairman here and the Village in other
matters. A movant need not be a current or former client in order to raise an ethical issue with the Court.
See O’Malley v. Novoselsky, Nos. 10 C 8200 & 11 C 110, 2011 WL 2470325 (N.D. Ill. June 14, 2011)
(rejecting defendant’s motion to disqualify plaintiffs’ attorneys for conflict of interest between plaintiffs
and noting Seventh Circuit warning that attorneys should raise any potential ethical problem); Smith v.
Martin, 819 F. Supp. 733, 735 (1992) (considering plaintiff’s motion in limine to prevent individual
Chicago police officers facing punitive damages from being represented by their employer’s corporation
counsel); Guillen, 956 F. Supp. at 1420 (N.D. Ill. 1997) (considering plaintiff’s motion to disqualify
defendants’ counsel from representing third-party witnesses). Sailsbery raises a potential conflict even
where the Firm and McGrath do not represent the Village here. See Smith, 819 F. Supp. at 735 & n.1.

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indemnify Fairman, Fairman may ask the Firm to defend him in such a way that focuses on
reducing punitive damages at the cost of reducing compensatory damages. See Smith, 819 F.
Supp. at 735.
Still, the potential conflict is far from ripe where it relies on many hypotheticals, and
Sailsbery’s motion is premature until some adversity between Fairman and the Village
crystalizes. Cf. Ross, 910 F.2d at 1432 (noting potential for conflict after reversing summary
judgment and reviving claims); Smith, 819 F. Supp. at 737 (analyzing conflicts at eve of trial);
see also Guillen, 956 F. Supp. at 1424 (noting that cases disqualifying city attorneys from also
representing employees are chiefly concerned with the impact of dual representation at trial).
Sailsbery filed this motion very early in her lawsuit; the Defendants have not responded to
Sailsbery’s claims, established a position on liability and damages, or participated in any
discovery or depositions. The Court must also respect Fairman’s choice of counsel, which
should not be hastily disrupted. Where there is no immediate conflict, the Court will not
disqualify Fairman’s attorney—but in an attempt to avoid a future conflict that would disrupt the
proceedings and potentially prejudice Fairman by disqualifying his attorney late in litigation, the
Court orders McGrath to fully apprise Fairman and the Village of the risks of concurrent
representation and obtain informed consent now. See Guillen, 956 F. Supp. at 1424 (collecting
cases and ordering proof of consent to concurrent representations).

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CONCLUSION
For the foregoing reasons, the Court denies Sailsbery’s motion to disqualify [9].
McGrath is directed to file an affidavit by April 29, 2016 that he has fully disclosed to the
Village and Fairman the risks and advantages of concurrent representation and that the Village
and Fairman have provided written informed consent to McGrath and the Firm serving as
Fairman’s counsel in this lawsuit.
Dated: April 11, 2016

______________________
SARA L. ELLIS
United States District Judge

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