BRANNAN v. CLINTON COUNTY BOARD OF COMMISSIONERS et al

Filing 31

ENTRY ON MOTION TO DISQUALIFY COUNSEL - For the foregoing reasons, Plaintiff John Brannan's Motion to Disqualify Counsel (Filing No. 22 ) is DENIED. (See Entry.) Signed by Judge Tanya Walton Pratt on 10/27/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOHN BRANNAN,
Plaintiff,
v.
CLINTON COUNTY BOARD OF
COMMISSIONERS,
CLINTON COUNTY BOARD OF HEALTH,
SCOTT SHOEMAKER, individually and in his
official capacity as Commissioner,
CORY BOYLES, individually and in his official
capacity as Commissioner,
BERT WEAVER, individually and in his official
capacity as Commissioner,
DR. STEPHEN THARP, individually and in his
official capacity as Commissioner, and
RODNEY WANN,
Defendants.

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ENTRY ON MOTION TO DISQUALIFY COUNSEL
This matter is before the Court on Plaintiff John Brannan’s (“Brannan”) motion to
disqualify the Defendants counsellors based on non-waivable conflicts of interest. Specifically,
Brannan ask the court to disqualify attorney’s Thomas Little (“Little”) of Power Little, Little &
Little, as well as, James Stephenson (“Stephenson”) and Rosemary Borek (“Borek”) of Stephenson
Morow & Semler, from representing more than a single defendant within this matter. (Filing No.
22.) For the following reasons, the Courts DENIES the Motion to Disqualify.
I.

BACKGROUND

The following facts are taken directly from Brannan’s Complaint and the parties’ briefs.
On March 14, 2011, Tharp, a Clinton County Board of Health Officer, hired Brannan as the
Administrator of the Board of Health. (Filing No. 17 at 2.) In 2013, the Clinton County Board of

Commissioners (“the Commissioners”) sought to transfer the County’s Public Health Nurse to
Parkview Home. (Filing No. 1 at 4.) Brannan opposed the Commissioners’ plan, asserting that
the State Department of Health’s regulations prohibit the transfer. Id. Following Brannan’s
opposition to the Commissioners’ plan, the Commissioners attempted to induce the Board of
Commissioners to remove Brannan as Administrator. Id. The Board of Commissioners, however,
declined to remove Brannan. Id. The Commissioners then attempted to persuade Tharp to remove
Brannan, even without the Board of Commissioners’ approval. Id.
On November 18, 2015, Dr. Stephen Tharp (“Tharp”) informed Brannan that the
Commissioners instructed his removal and, effective immediately, Rodney Wann (“Wann”) would
replace Brannan as Administrator. Id. at 4-5. Tharp demoted Brannan to the position of Food
Inspector. Id. at 5. As a result of the demotion, Brannan suffered major anxiety attacks causing
his doctor to certify him for intermittent leave under the Family and Medical Leave Act (“FMLA”).
Id. Brannan presented a signed certification to Tharp, and both Tharp and Wann informed Brannan
that he must provide them with a schedule of when he intended to take his intermittent FMLA
leave. Id.
Shortly thereafter, while Brannan visited his doctor, he saw Commissioner Scott
Shoemaker (“Shoemaker”) enter the doctor’s office in full police attire. Id. Brannan suspected
that Shoemaker entered the doctor’s office to observe him. Id. After witnessing Shoemaker in the
doctor’s office, Brannan obtained counsel and, on February 17, 2016, sent a letter to the
Commissioners, as well as Tharp and Wann, advising them that Shoemaker’s actions amounted to
an interference with his exercise of his FMLA rights. Id. Brannan also explained that requiring
him to schedule his intermittent FMLA leave constituted interference. Id. at 5-6. On March 4,

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2016, Tharp terminated Brannan for insubordination and informed Brannan that his termination
was pursuant to the instructions of the Commissioners. Id. at 6.
On March 16, 2016, Brannan filed a Complaint in this Court asserting deprivation of rights
against the Commissioners and Tharp, as well as, violation of the FMLA against all Defendants.
(Filing No. 1.) Attorneys Little, Stephenson, and Borek entered appearances to collectively
represent Defendants Shoemaker, Bert Weaver, and Cory Boyles (collectively, “Commissioners”),
as well as, Clinton County Board of Commissioners (“Board of Commissioners”), Clinton County
Board of Health (“Board of Health”), Tharp, and Rodney Wann. (Filing No. 5; Filing No. 8; Filing
No. 9.) Brannan contends that a conflict of interest will likely arise because the attorneys’
representation of one of the Defendants will materially limit the attorneys’ duty to the other
Defendants. On August 20, 2016, Brannan moved this Court to disqualify attorneys Stephenson,
Little, and Borek, asserting that there is a non-waivable conflict of interest, pursuant to Indiana
Rule of Professional Conduct 1.7. (Filing No. 22.) In response, the Defendants argue that Brannan
does not have standing and a conflict of interest does not exist. (Filing No. 24.)
II.

LEGAL STANDARD

“Disqualification of an attorney is a ‘drastic measure which courts should hesitate to
impose except when absolutely necessary.’” Mills v. Hausmann-McNally, S.C., 992 F. Supp. 2d
885, 890 (S.D. Ind. 2014) (quoting Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993)). “The
standards for disqualification of an attorney derive from two sources: Indiana’s Rules of
Professional Conduct and federal common law.” Leathermon v. Grandview Mem. Gardens, Inc.,
No. 4:07-cv-137-SEB-WGH, 2010 WL1381893, at * 8 (S.D. Ind. March 31, 2010).
According to Indiana Rule of Professional Conduct 1.7, a lawyer shall not represent a client
if “the representation of one client will be directly adverse to another client.” Ind. R. Prof. Conduct

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1.7(a)(1). A lawyer is also prohibited from representing a client where “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.” Id. at 1.7(a)(2). However, even where a conflict exists, a lawyer may represent a client
if:
(b)(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
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.
Ind. R. Prof. Conduct 1.7(b). “A moving party bears the burden of proving that an actual conflict
of interest in violation of Rule 1.7 exists, rather than merely a potential one.” Mills, 992 F. Supp.
2d at 890 (citing See Philips Medical Systems Int'l B.V. v. Bruetman, 8 F.3d 600, 606 (7th
Cir.1993)).
III.

DISCUSSION

Brannan moves this Court to disqualify attorneys Stephenson, Little, and Borek, asserting
a non-waivable conflict of interest exists. Brannan contends that one or more situations may occur
during this case where the attorneys’ representation of one client will be materially limited by the
attorneys’ duty to the other clients. In response, the Defendants argue that Brannan lacks standing
to seek disqualification of Defendants’ counsels on the grounds that their representation of all
Defendants violate Rule 1.7. The Defendants also contend that a conflict of interest does not exist.
The Court will address each issue in turn.
A.

Standing

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The Defendants assert that Brannan lacks standing to seek disqualification of Defendants’
counsels pursuant to Rule 1.7. The purpose of Rule 1.7 is to protect clients from harm caused by
conflicting representations. Mills, 992 F. Supp. 2d at 891. Rule 1.7 is not designed to serve as a
“weapon in the arsenal of a party opponent.” Id. Therefore, “the general rule accepted by most
federal jurisdictions is that only a current or former client has standing to seek disqualification of
an attorney from a matter pending before a court.” Id. (citing In re Yarn Processing Patent Validity
Litig., 530 F.2d 83, 88 (5th Cir.1976); Tizes v. Curico, 1997 WL 116797, at *2 (N.D.Ill. Mar. 12,
1997)). However, “[w]here the conflict is such as clearly to call in question the fair or efficient
administration of justice, opposing counsel may properly raise the question.” Id. at 892 (citing
Blanchard v. EdgeMark Fin. Corp., 175 F.R.D. 293, 306 (N.D.Ill.1997); Thomas & Betts Corp. v.
Panduit Corp., 1995 WL 319635, at *1 (N.D.Ill. May 25, 1995)).
The Defendants argue that Brannan has no current or prior affiliation with attorneys
Stephenson, Little, or Borek and, as such, Brannan has no standing to argue on their behalf. In the
alternative, the Defendants rely on Emmis Operating Co., when arguing that Brannan cannot show
that attorneys Stephenson’s, Little’s, and Borek’s representation affects the administration of
justice. See Emmis Operating Co. v. CBS Radio, Inc., 480 F. Supp. 2d 1111 (S.D. Ind. 2007). In
Emmis, the Court ruled that a defendant had standing to seek disqualification of plaintiff’s counsel,
where plaintiff’s counsel represented the defendant’s key witness in negotiating an employment
agreement, which was the subject of the underlying suit. Id. at 1117. The Court held that the
counsel’s prior representation of the key witness, in negotiating the employment agreement at
issue, amounted to a conflict of interest that would “effect the full and fair administration” of
justice. Id.

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The Defendants contend that attorneys Stephenson’s, Little’s, and Borek’s representation
does not harm the full and fair administration of justice because neither Brannan, nor anyone
affiliated with Brannan, has a relationship with Defendants’ counsels that could be used against
Brannan in this case. Brannan argues only the possibility that each Defendant could take positions
that are contrary to the other Defendants. Brannan specifically asserts that a conflict exists because
he could potentially negotiate with several of the Defendants, dismiss their claims, and secure
favorable evidence from those Defendants to support claims against other Defendants. Brannan
contends that in the foregoing situation, Defendants’ counsels would clearly be materially limited
in one representation or another.
The Court finds that Brannan is essentially “attempting to justify a motion to disqualify
primarily on the basis of [the Defendants’] interest.” See Mills, 992 F. Supp. 2d at 893. “Seventh
Circuit case law makes clear that under these circumstances, an adversary party lies outside the
protective scope of the conflict rules, and thus lacks standing to bring a disqualification motion.”
Id. (citing Matter of Sandahl, 980 F.2d 1118, 1121 (7th Cir. 1992); Blanchard, 175 F.R.D. at 305306 (holding that defendants lacked standing to seek disqualification of plaintiffs’ counsel, where
plaintiffs’ counsel adopted a position contrary to the interest of its client)); See also Thomas &
Betts Corp., 1995 WL 319635, at *2 (holding that a “[d]efendants’ feigned concern for [plaintiff]’s
welfare was unpersuasive” and the defendants lacked standing).
The Court sees no basis for concluding that the fair and efficient administration of justice
would be harmed because Brannan’s motion relies only on Defendants’ possible interest rather
than an actual attorney-client conflict. Accordingly, the Court finds that Brannan lacks standing
to seek disqualification of Defendants’ counsels.

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B.

Conflict of Interest
Even assuming that Brannan has standing to seek disqualification of attorneys Stephenson,

Little, and Borek, the Court concludes that Brannan has not proved that a conflict exists. “A
moving party bears the burden of proving that an actual conflict of interest in violation of Rule 1.7
exists, rather than merely a potential one.” Mills, 992 F. Supp. 2d at 890 (citing Philips, 8 F.3d at
606) (emphasis added). Brannan argues only that this case “is very likely to produce one or more
situations in which the attorneys’ representation of one client…will be materially limited by the
attorneys’ duty to another client…” (Filing No. 23 at 2) (emphasis added). Brannan has not
provided information regarding an actual conflict of interest. The Defendants contend that their
positions are not adverse to each other and neither Defendant objects to the representation of
attorneys Stephenson, Little, and Borek. Moreover, Defendants attorney are fully aware of their
obligations under Rule 1.7. If an actual conflict were to arise in this matter, the Court trusts that
attorneys Stephenson, Little, and Borek would take the appropriate actions. Accordingly, because
Brannan offers only mere potential conflicts rather than an actual conflict of interest, Brannan’s
motion to disqualify Defendants’ counsels is denied.
IV.

CONCLUSION

For the foregoing reasons, Plaintiff John Brannan’s Motion to Disqualify Counsel (Filing
No. 22) is DENIED.
SO ORDERED.

Date: 10/27/2016

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Distribution:
Jay Meisenhelder
JAY MEISENHELDER EMPLOYMENT
& CIVIL RIGHTS LEGAL SERVICES PC
[e-mail]
Thomas Frank Little
POWER LITTLE LITTLE
[e-mail]
James S. Stephenson
STEPHENSON MOROW & SEMLER
[e-mail]
Rosemary L. Borek
STEPHENSON MOROW & SEMLER
[e-mail]

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