FOLSOM v. MENARD, INC. et al
Filing
370
ORDER granting 145 Motion to Disqualify Counsel Frost Brown Todd, LLC as Counsel for North American Roofing Services, Inc. Attorneys Michelle R. Maslowski and Kevin C. Schiferl terminated. Signed by Judge Richard L. Young on 4/13/2011. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
MICHAEL R. FOLSOM,
Plaintiff,
v.
MENARD, INC., a Wisconsin Corporation;
CDI, INC., an Indiana Corporation; LAMAR
CONSTRUCTION COMPANY, a Michigan
Corporation; NORTH AMERICAN
ROOFING SERVICES, INC., a Delaware
Corporation; FABCON, INC., a Minnesota
Corporation, FABCON, LLC, a Limited Liability
Company of Delaware; CROWN CONSTRUCTION,
INC., an Indiana Corporation; and GARY’S
PLUMBING SERVICE, INC.,
Defendants.
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ENTRY ON DEFENDANT MENARD, INC.’S MOTION TO
DISQUALIFY FROST BROWN TODD, LLC
On November 3, 2010, Defendant Menard, Inc., filed a Motion to Disqualify Frost
Brown Todd, LLC.
I.
Background
Defendant, Menard, Inc. (“Menard”), filed this motion seeking to disqualify Frost
Brown Todd, LLC (“FBT”) from representation of Defendant North American Roofing
Services, Inc. (“NARSI”). From April 1, 2009, until October 14, 2010, FBT represented
Menard in the matter of Sanjay Patel, on behalf his minor child, R.P. v. Menard, Inc.,
1:09-cv-360-TWP-DML in the United States District Court for the Southern District of
Indiana. FBT began its representation of NARSI in this matter on July 17, 2009, when
Kevin C. Schiferl of FBT entered an appearance on behalf of NARS.
In this case, Plaintiff alleges that both Menard and NARSI are liable for his
injuries. Menard has filed a crossclaim seeking indemnity from NARSI. Both NARSI
and Menard presumably will argue that its share of fault under Indiana’s Comparative
Fault Act should be reduced by the fault of the other. Menard eventually requested that
FBT withdraw from its representation of Menard in the Patel case, as well as its
representation from NARSI in this case. While FBT did withdraw its appearance for
Menard in the Patel case, FBT has declined to withdraw from this matter.
Menard filed the instant motion arguing that FBT is prohibited from concurrently
representing Menard in another matter while it also represents NARSI in this matter
because FBT’s representation of NARSI in this matter is adverse to Menard and FBT
failed to obtain consent from Menard for such representation. NARSI responded, arguing
that there is no conflict of interest, that there would be substantial prejudice to NARSI if
FBT were forced to withdraw, and that Menard has waived this issue.
II.
Discussion
Rule 1.7 of the Indiana Rules of Professional Conduct explains that:
(a)
Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1)
the representation of one client will be directly adverse to another
client; or
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(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.
(b)
Notwithstanding the existence of a concurrent conflict of
interest under paragraph (a), a lawyer may represent a 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 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.
The Comments section of Rule 1.7 explains that “absent consent, a lawyer may not act as
an advocate in one matter against a person the lawyer represents in some other matter,
even when the matters are wholly unrelated.” IND. R. PROF. CONDUCT 1.7, Comment 6.
Furthermore, an attorney’s withdrawal in one of the two conflicting matters does not
remove the conflict; the Indiana Court of Appeals has explained that “conflicts may not
be avoided by withdrawal.” Reed v. Hoosier Health Systems, Inc., 825 N.E.2d 408, 412
(Ind. Ct. App. 2005).
In this case, the facts clearly demonstrate that FBT represented Menard in the
Patel matter. FBT also, during the same time period, represented and still represents
NARSI in this matter. Therefore, we are clearly and unequivocally dealing with a
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concurrent representation that implicates Rule 1.7.1 The question that must be resolved,
then, is whether FBT’s representation of NARSI is directly adverse to the representation
of Menard.
Part of this suit involves a crossclaim by Menard alleging that NARSI was liable
for the damages to Plaintiff because NARSI agreed to indemnify Menard. NARSI
essentially has rejected Menard’s claim of indemnity. FBT’s actions of representing
NARSI in this matter, therefore, clearly amount to being an advocate in this case against
Menard. FBT was required to inform both Menard and NARSI of this concurrent conflict
of interest, and was required to obtain written, informed consent from both parties. There
is no evidence in the record that demonstrates that Menard provided written consent to
FBT allowing the concurrent conflict of interest.2 And, as discussed in Reed, FBT’s
decision to withdraw from representation of Menard in the Patel matter did not eliminate
the conflict. Pursuant to the Indiana Rules of Professional Conduct as well as the Indiana
1
NARSI has confused the issue of concurrent representation with the issue of prior
representation. NARSI mistakenly cites to Rule 1.9 of the Indiana Rules of Professional
Conduct concerning former clients. However, Reed makes clear that the attempt to turn a
concurrent relationship into a former relationship by merely withdrawing from representation
of one of the two parties will not suffice. Therefore, NARSI’s reliance on legal theories and
arguments concerning conflicts of interest between a current client and a former client have
no bearing on the court’s legal analysis in this case.
2
The only manner in which a concurrent conflict of interest under Rule 1.7 can be waived
is in writing after informed consent. See Van Kirk v. Miller, 869 N.E.2d 534, 541 (Ind. Ct.
App. 2007). Menard cannot, and did not, waive the concurrent conflict of interest in any
manner other than through its informed written consent.
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Court of Appeals decision in Reed, FBT is not permitted to represent NARSI in this
matter, and Menard’s motion must be granted.
III.
Conclusion
For the reasons outlined above, Defendant Menard, Inc.’s Motion to Disqualify
Frost Brown Todd, LLC (Docket # 145) is GRANTED.
SO ORDERED the 13th day of April 2011.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Electronic Copies to:
Gerald F. Allega
STATHAM ALLEGA JESSEN & RUDISILL
saj@statham-aj.com
Bradley A. Bough
WRIGHT SHAGLEY & LOWERY
bbough@wslfirm.com
Jake A. Cilek
THE HUNT LAW GROUP LLC
jcilek@hunt-lawgroup.com
Kathleen A. Clark
DAWSON & CLARK, P.C.
kclark@dawson-clark.com
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Aimee Rivera Cole
SMITH FISHER MAAS & HOWARD
arivera@smithfisher.com
Donald H. Dawson Jr
DAWSON & CLARK, P.C.
ddawson@dawson-clark.com
James L. Fischer Jr.
BOEHL STOPHER & GRAVES, LLP
jfischer@bsg-in.com
Danny E. Glass
FINE & HATFIELD
deg@fine-hatfield.com
Jeffrey W. Henning
RUDOLPH FINE PORTER & JOHNSON, LLP
jwh@rfpj.com
Brian J. Hunt
THE HUNT LAW GROUP LLC
bhunt@hunt-lawgroup.com
John J. Kreighbaum
FINE & HATFIELD
jjk@fine-hatfield.com
Marcum Jarvis Lloyd
SMITH FISHER MAAS & HOWARD P.C.
mlloyd@smithfisher.com
Rebecca Jean Maas
SMITH FISHER MAAS & HOWARD
rmaas@smithfisher.com
Michelle R. Maslowski
FROST BROWN TODD LLC
mmaslowski@fbtlaw.com
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Curtis Paul Moutardier
BOEHL STOPHER & GRAVES LLP
cmoutardier@bsg-in.com
Kevin C. Schiferl
FROST BROWN TODD LLC
kschiferl@fbtlaw.com
William Scott Trench
THE HUNT LAW GROUP LLC
strench@hunt-lawgroup.com
Scott Lee Tyler
Waters, Tyler, Scott, Hofmann & Doane, LLC
styler@wtshdlaw.com
Robert L. Wright
WRIGHT SHAGLEY & LOWERY, P.C.
rwright@wslfirm.com
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