Nagle et al v. Gusman et al

Filing 142

ORDER AND REASONS - documents due to the Court regarding Motion 102 to Determine Conflict-Free Representation. See document for deadline dates and the type of documents to be submitted.. Signed by Chief Judge Sarah S. Vance on 4/1/15.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARGARET GOETZEE NAGLE, ET AL.

CIVIL ACTION

VERSUS

NO: 12-1910

SHERIFF MARLIN GUSMAN, ET AL.

SECTION: R

ORDER AND REASONS
In October, plaintiffs alerted the Court that the firm
representing the defendants might be conflicted because many of
the defendants have interests adverse to one another.

The Court

ordered the parties to meet and confer to determine whether some
of plaintiffs' claims could be dismissed against certain
defendants so as to eliminate some of the potential conflicts.
The Court further ordered the parties to brief any potential
conflicts remaining after their meet and confer.
The parties have conferred and agreed on a way to resolve
the potential conflicts affecting most, but not all, of the
defendants.

They have also briefed the remaining alleged

conflicts.

I.

BACKGROUND
This case arises out of the August 7, 2011 suicide of

William Wesley Goetzee (Mr. Goetzee) while he was held as a
pretrial detainee at Orleans Parish Prison.

After his death, Mr.

Goetzee's sister and brother, Margaret Goetzee Nagle and John
Eric Goetzee, filed this section 1983 civil rights suit and state

law wrongful death and negligence suit against Sheriff Marlin
Gusman and numerous employees of the Orleans Parish Sheriff's
Office.
A.

Potential Conflicts

Plaintiffs identify two potential conflicts of interest
resulting from the concurrent representation by the same counsel
of all of the defendants.
First, in section 1983 cases, the interests of a
municipality and the interests of its employees are adverse to
one another.

See Van Ooteghem v. Gray, 628 F.2d 488, 495 n.7

(5th Cir. 1980), aff'd in part, vacated in part on other grounds,
654 F.2d 304 (5th Cir. 1981) (en banc) (per curiam).

Thus,

plaintiffs' section 1983 claim under Monell v. Department of
Social Services, 436 U.S. 658 (1978), creates a potential
conflict of interest between Sheriff Gusman in his official
capacity, and the employee defendants in their individual
capacities.

The Second Circuit has succinctly summarized the

conflict:
A municipality may avoid liability by showing that the
employee was not acting within the scope of his official
duties, because his unofficial actions would not be
pursuant to municipal policy. The employee, by contrast,
may partially or completely avoid liability by showing
that he was acting within the scope of his official
duties. If he can show that his actions were pursuant to
an official policy, he can at least shift part of his
liability to the municipality. If he is successful in
asserting a good faith immunity defense, the municipality
may be wholly liable because it cannot assert the good
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faith immunity of its employees as a defense to a section
1983 action.
Dunton v. Suffolk Cnty., State of N.Y., 729 F.2d 903, 907 (2d
Cir.) amended, 748 F.2d 69 (2d Cir. 1984) (relying on Van
Ooteghem, 628 F.2d 488).
Second, the proof required for individual section 1983
liability also creates a potential conflict of interest between
the “lower-level” security and nursing defendants who were
directly involved in Mr. Goetzee's care and the “supervisory”
security and nursing defendants to whom the lower-level
defendants reported.

Specifically, for a government official to

be liable under section 1983, he or she must have exhibited
“deliberate indifference” under Farmer v. Brennan, 511 U.S. 825
(1994).

See Hare v. City of Corinth (Hare III), 74 F.3d 633,

648-49 (5th Cir. 1996) (en banc).

A prison official acts with

subjective deliberate indifference when he or she (1) “knew of”
and

(2) “disregarded an excessive risk to the [detainee's]

health or safety.”

Brumfield v. Hollins, 551 F.3d 322, 331 (5th

Cir. 2008) (citation omitted).

Therefore, the lower-level

defendants have an interest in proving that they reported
failures to supervise suicide watch detainees and thus did not
“disregard” risks to detainees' health.

In contrast, supervisory

defendants have an interest in proving that they were not
informed of any failures to observe suicidal detainees and thus
did not “know of” the risks to detainees' health.
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In sum, a potential conflict exists (1) between Sheriff
Gusman in his official capacity and all of his employees in their
individual capacities and (2) between the lower-level employees
and the supervisory employees.
B.

Agreement Between Parties to Simplify Representation

Plaintiffs take the position that both potential conflicts
may be waived if (1) Sheriff Gusman agrees to indemnify all
defendants for both compensatory and punitive damages, and
(2) the defendants knowingly and voluntarily execute signed
conflict waivers.
To simplify the representation required, defendants agree to
indemnify all individual defendants (other than Defendant
Thompson, the guard assigned to watch Mr. Goetzee, who is
currently proceeding pro se) for compensatory damages, costs, and
attorneys' fees.

In exchange, plaintiffs agree to dismiss their

punitive damages claims against all defendants except for the
three “policy-making” defendants: Sheriff Gusman, Dr. Samuel
Gore, and Dr. Mike Higgins.

Defendants do not agree to indemnify

Dr. Gore or Dr. Higgins for punitive damages.
Under this arrangement, and assuming that the fully
indemnified defendants all execute valid conflict waivers, the
parties agree that the fully indemnified defendants could be
represented by the same firm(s) as Sheriff Gusman.

Because Dr.

Gore and Dr. Higgins are not fully indemnified under this scheme,

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Sheriff Gusman has agreed to pay for separate counsel for Dr.
Gore and for Dr. Higgins.
C.

Remaining Alleged Conflict

Plaintiffs argue that both Usry, Weeks and Gauthier,
Houghtaling, the law firms engaged to represent the fully
indemnified defendants and Sheriff Gusman in his official
capacity, must withdraw from the case or be disqualified by the
Court.

Plaintiffs contend that because these law firms have

until this point represented all defendants, including Dr. Gore
and Dr. Higgins, they may not continue as counsel for Gusman and
the fully indemnified defendants, because the interests of Dr.
Gore and Dr. Higgins are potentially adverse to the interests of
Gusman and the other defendants.
II.

DISCUSSION
The Court first reviews the parties' agreement to simplify

the representation of the fully indemnified defendants, and then
analyzes Usry, Weeks's and Gauthier, Houghtaling's alleged
conflict of interest.
A.

Agreement Between Parties to Simplify Representation

As discussed above, the parties have agreed that going
forward there will be three separately represented groups: (1)
Dr. Gore; (2) Dr. Higgins; and (3) Sheriff Gusman in his official
capacity along with the fully indemnified employee defendants.
Although the employee members of this last group have interests
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potentially adverse to each other and to Sheriff Gusman in his
official capacity, plaintiffs agree that these defendants and
Sheriff Gusman may all be represented by the same counsel,
provided that the defendants knowingly and voluntarily execute
signed conflict waivers.

Plaintiffs further assert, however,

that these waivers of conflict should occur “under oath at a
conflicts hearing,” rather than in writing.1
The Court concludes that no hearing is necessary for the
fully indemnified defendants.

Given that plaintiffs have agreed

to drop their punitive damages claims against these defendants
and that the Sheriff's Office has agreed to indemnify them
against compensatory damages, costs, and fees, the Sheriff's
Office's financial interests are now aligned with these
defendants' financial interests.

Therefore, written conflict

waivers will be sufficient.
The Court orders that each of the fully indemnified employee
defendants file into the record two documents: (1) an affidavit
by the defendant waiving the potential conflict of interest with
the other defendants represented by the same counsel, and waiving
the potential conflict of interest with Dr. Gore and Dr. Higgins
(as explained in the next section) and (2) an affidavit by
defense counsel, averring (a) that the Sheriff's Office has
agreed to indemnify the defendant for compensatory damages,

1

R. Doc. 138-1 at 4.
6

costs, and attorneys' fees and (b) that counsel has met with the
defendant and explained the litigation, the claims against the
defendant, the ways in which the defendant's interest is
potentially adverse to the interests of the other defendants
represented by the same counsel, the effect of the
indemnification agreement, the ways in which the firm's
representation of the defendant may be limited by its obligations
to Dr. Gore and/or Dr. Higgins (as explained in the next
section), and the effect of waiving these conflicts.

For the

reasons explained in the next section, however, the fully
indemnified defendants should wait to complete these documents
until the Court has determined whether Usry, Weeks and Gauthier,
Houghtaling may stay on the case as their counsel.
B.

Alleged Conflict of Usry, Weeks and Gauthier,
Houghtaling

As a threshold matter, the Court must determine whether
plaintiffs have standing to move to disqualify opposing counsel.
In In re Yarn Processing Patent Validity Litigation, 530 F.2d 83
(5th Cir. 1976), the Fifth Circuit held that, as a general rule,
“courts do not disqualify an attorney on the grounds of conflict
of interest unless the former client moves for disqualification.”
Id. at 88 (emphasis added).

The In re Yarn court identified a

few “narrow exceptions” to this general rule, for cases in which
“the unethical change of sides [is] manifest and glaring” or

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“open and obvious,” thereby “confront[ing] the court with a plain
duty to act.”

Id. at 88-89 (citations omitted).

All of the cases cited by plaintiffs involve motions by
former clients.

But the Fifth Circuit views disqualification

motions by third parties with a more critical eye than it does
motions by former clients.

Id. at 90.

Thus, none of plaintiffs’

cases accurately identifies the standards applicable to their
motion.

Because plaintiffs are not former clients, the Court may

disqualify opposing counsel on their motion only if the conflict
fits within In re Yarn's narrow exceptions--that is, if the
“unethical change of sides” is so “manifest and glaring” or “open
and obvious” that it “confront[s] the court with a plain duty to
act.”

Id. at 88-89 (citations omitted).
In addition, although a “[d]istrict

[c]ourt is obliged to

take measures against unethical conduct occurring in connection
with any proceeding before it,” it must not impose the sanction
of disqualification “cavalierly.”

In re ProEducation Int'l,

Inc., 587 F.3d 296, 299-300 (5th Cir. 2009) (citations omitted).
Indeed, "[d]epriving a party of the right to be represented by
the attorney of his or her choice is a penalty that must not be
imposed without careful consideration."

Id.

The Court must

consider “[a]ll of the facts particular to [the] case . . . in
the context of the relevant ethical criteria and with meticulous
deference to the litigant's rights.”

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Id.

With these standards in mind, the Court assesses Usry,
Weeks's and Gauthier, Haughtaling's change of representation
under the applicable ethical rules.

Disqualification motions are

governed by “state and national ethical standards adopted by the
court.”

F.D.I.C. v. U.S. Fire Ins. Co., 50 F.3d 1304, 1311-12

(5th Cir. 1995) (quoting In re Am. Airlines, Inc., 972 F.2d 605,
610 (5th Cir. 1992)).

“The local rules promulgated by the local

court itself are the most immediate source of guidance for a
district court.”

Id. at 1312.

Nonetheless, because “[m]otions

to disqualify are substantive motions,” they are decided under
federal law.

Id.

Thus, also relevant are “the ethical rules

announced by the national profession,” the public interest, and
the litigant's rights.

Id.

Courts in the Fifth Circuit look to

the “norms embodied in the [ABA] Model Rules and the Model Code”
for “the national standards” applicable to disqualification
motions.

Id.

The Eastern District of Louisiana has adopted the Louisiana
State Bar Association's Rules of Professional Conduct.
Civ. Rule 83.2.3.

These rules are identical to the ABA's Model

Rules of Professional Conduct.
rules.

See Local

This case implicates two of these

First, it implicates the rule governing an attorney's

duty to his or her former clients.

That rule provides, in

relevant part:
RULE 1.9. DUTIES TO FORMER CLIENTS

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(a)

A lawyer who has formerly represented a client in a
matter shall not thereafter represent another
person in the same . . . matter in which that
person’s interests are materially adverse to the
interests of the former client unless the former
client gives informed consent, confirmed in
writing.

Here, Usry, Weeks has represented Dr. Gore and Dr. Higgins since
this case began two and a half years ago.

Gauthier, Haughtaling

entered an appearance late last year, and plaintiffs represent
that since joining the case, Gauthier, Haughtaling has appeared
at court hearings and depositions, including the depositions of
both Dr. Gore and Sheriff Gusman.

Thus, if the firms have now

stopped representing Dr. Gore and Dr. Higgins in this case, then
Dr. Gore and Dr. Higgins qualify as their former clients.
Therefore, if it is true that the interests of the Sheriff's
Office and the lower-level defendants are “materially adverse” to
Dr. Gore and Dr. Higgins, as outlined above, then the firms
should not continue to represent Gusman and the fully indemnified
defendants without the doctors' “informed consent, confirmed in
writing.”

Without this waiver, the firms would be in violation

of the rule.
Second, this case also implicates the rule governing
conflicts of interests related to current clients.
provides, in relevant part:

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That rule

RULE 1.7. CONFLICT OF INTEREST: CURRENT CLIENTS
(a)

. . . 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
(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 [or] a
former client . . . .

(b)

Notwithstanding the existence of a concurrent
conflict of interest . . . , 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)
. . . ; and
(4) each affected client gives informed consent,
confirmed in writing.

Plaintiffs have submitted a list of cases from PACER in which
Usry, Weeks and Gauthier, Houghtaling currently represent Dr.
Gore and Dr. Higgins in other litigation related to events at the
prison.2

Because Dr. Gore and Dr. Higgins are current clients of

both firms, they are entitled to the protections of the rule
governing concurrent representation.

In addition, Sheriff Gusman

and the fully indemnified defendants are also entitled to the
rule’s protections, because they are the firms’ current clients
in this case.

If the firms have received information in

confidence from Dr. Gore or Dr. Higgins in the course of their

2

R. Doc. 138-2 at 2.
11

representation, and that information is relevant to the defenses
of the Sheriff's Office or the fully indemnified defendants here,
then there is a “significant risk” that the firms “will be
materially limited” by their conflicting responsibilities to each
set of clients.

The firms have an ethical obligation to

represent all of their clients zealously, as well as an ethical
obligation not to use information gained in confidence in the
course of representing one client to that client's disadvantage.
Thus, a concurrent conflict of interest exists.
The ABA's Model Code also addresses concurrent conflicts of
interest.

It provides, in relevant part:

Maintaining the independence of professional judgment
required of a lawyer precludes his acceptance or
continuation of employment that will adversely affect his
judgment on behalf of or dilute his loyalty to a client.
This problem arises whenever a lawyer is asked to
represent two or more clients who may have differing
interests, whether such interests be conflicting,
inconsistent, diverse, or otherwise discordant.
Ethical Canon 5-14 (emphasis added).

The Code states the

duty of an attorney in this situation:
If a lawyer is requested to undertake or to continue
representation of multiple clients having potentially
differing interests, he must weigh carefully the
possibility that his judgment may be impaired or his
loyalty divided if he accepts or continues the
employment.
He should resolve all doubts against the
propriety of the representation. A lawyer should never
represent in litigation multiple clients with differing
interests; and there are few situations in which he would
be justified in representing in litigation multiple
clients with potentially differing interests. If a lawyer
accepted such employment and the interests did become
actually differing, he would have to withdraw from
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employment with likelihood of resulting hardship on the
clients; and for this reason it is preferable that he
refuse the employment initially.
Ethical Canon 5-15 (emphasis added).

Even after an attorney

representing clients with potentially differing interests has
weighed the risks and determined that representation may
continue, she nevertheless owes each client an full explanation
of the issues involved.

Specifically:

In those instances in which a lawyer is justified in
representing two or more clients having differing
interests, it is nevertheless essential that each client
be given the opportunity to evaluate his need for
representation free of any potential conflict and to
obtain other counsel if he so desires. Thus before a
lawyer may represent multiple clients, he should explain
fully to each client the implications of the common
representation and should accept or continue employment
only if the clients consent.
Ethical Canon 5-16.
In sum, both the applicable rules and the Model Code suggest
that, here, concurrent representation of clients with potentially
conflicting interests may continue only if (1) the firms
reasonably believe that they can provide competent, diligent,
and unimpaired representation to both sets of clients and (2) the
clients have given their informed consent.

Moreover, the rules

require that this consent be “confirmed in writing.”

Here,

however, there is no evidence that Sheriff Gusman, Dr. Gore, Dr.
Higgins, or any of the fully indemnified defendants have been
informed of the potential conflict, much less consented to it.

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Absent this showing, the firms run afoul of the ethical standards
applicable to concurrent conflicts of interest.
Both of the potential ethical violations identified by the
Court are “open and obvious”; thus, this case fits within In re
Yarn's narrow exceptions, and the Court can intervene.
Yarn, 530 F.2d at 89.

In re

After reviewing the record and the

parties' briefing on the conflict issue, the Court concludes that
it needs more information to determine whether the firms can
continue to represent Sheriff Gusman and the fully indemnified
defendants under the applicable ethical rules, in light of their
former and concurrent representation of Dr. Gore and Dr. Higgins.
First, the Court needs evidence as to whether the doctors
wish to waive the potential conflicts.

Plaintiffs suggest that a

“full-blown hearing” is necessary before the doctors can waive
the potential conflicts.3

They assert that “such a hearing would

be unusual and dramatic in terms of its scope and complexity.”4
Plaintiffs cite no law for these propositions, and it is unclear
what they mean by “full-blown” hearing or why they think the law
requires one.

The Court could do with less drama and more law.

In any event, In re Yarn is clear that the doctors may waive the
conflict: “A former client may consent to the employment of [an]
attorney by an adverse party even where the former client is

3

R. Doc. 138-1 at 9.

4

Id.
14

involved in the case as a party.”

530 F.2d at 89.

As that court

explained, this “might typically occur where the former client
realizes that any prior disclosures will not prejudice him in the
new case.”

Id.; see also Model Rules of Prof'l Conduct R. 1.7

(listing conditions for client waiver of concurrent conflicts).
But the current record contains no indication that the doctors
have consented to the potential conflicts.

In addition, the

applicable ethical rules require that any consent by the doctors
be informed and in writing.

If the doctors chose to consent,

then the Court will also need evidence as to whether Sheriff
Gusman and the other defendants consent.

Further, the Court will

need the challenged firms to provide their own assessment of the
propriety of the concurrent representation, based on their
knowledge of the information in their possession and their likely
trial strategy, among other considerations.
Therefore, the Court will proceed as follows.

First, Dr.

Gore and Dr. Higgins shall consult with their new counsel and
determine whether they wish to consent to Usry, Weeks's and
Gauthier, Houghtaling's representation of other defendants with
interests potentially adverse to theirs.

If either doctor does

not wish to consent to the conflict, then he shall join
plaintiffs' motion to disqualify Usry, Weeks and Gauthier,
Houghtaling, and submit a brief of no more than 15 pages on the
conflict issue by April 21, 2015. If either doctor joins the

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motion to disqualify,

defendants' oppositions of no more than 15

pages will be due April 28, 2015, with replies of no more than 10
pages due May 6, 2015.
Alternatively, if, after consulting with their new counsel,
both Dr. Gore and Dr. Higgins wish to waive the potential
conflict, then each doctor shall submit an affidavit certifying
his informed consent to the potential conflict by April 21, 2015.
In that event, counsel from both Usry, Weeks and Gauthier,
Houghtaling shall submit, by April 28, 2015, under seal, an
affidavit explaining how they can “provide competent and diligent
representation to each affected client”--that is, to their
clients in this case, and to Dr. Gore and Dr. Higgins in the
other cases in which the firms represent them--despite the
conflict.

In addition, the firms should submit a signed conflict

waiver by Sheriff Gusman, on behalf of the Sheriff's Office, also
by April 28, 2015.
After the Court has reviewed these submissions, the Court
will decide whether Usry, Weeks and Gauthier, Houghtaling may
remain on the case.

If the Court decides that they can remain on

the case, then the Court will set a deadline for the other
defendants to submit the documents related to their conflict
waivers.

If the Court decides that they cannot, then the Court

will set a status conference to discuss the selection of new
counsel.

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III. CONCLUSION
The Court summarizes the documents due to the Court and the
relevant deadlines.
If Dr. Gore or Dr. Higgins object to the conflict of
interest, the following deadlines apply:
•

April 21, 2015: Objecting doctor(s) must submit a brief
of no more than 15 pages in support of the motion to
disqualify Usry, Weeks and Gauthier, Houghtaling.

•

April 28, 2015: Defendants' opposition of no more than
15 pages is due.

•

May 6, 2015: Replies of no more than 10 pages are due.

If Dr. Gore or Dr. Higgins consent to the conflict of
interest, then the following deadlines apply:
•

April 21, 2015: Consenting doctor(s) must submit an
affidavit certifying his informed consent to the
conflict.

•

April 28, 2015: Both Usry, Weeks and Gauthier,
Houghtaling must submit, under seal, an affidavit
explaining how they can “provide competent and diligent
representation to each affected client”--that is, to
their clients in this case, and to Dr. Gore and Dr.
Higgins in the other cases in which the firms represent
them--despite the conflict.

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•

April 28, 2015: Sheriff Gusman, on behalf of the
Sheriff's Office, shall submit an affidavit waiving (1)
the potential conflicts with the fully indemnified
defendants and (2) the potential conflicts with Dr.
Gore and Dr. Higgins.

If, after reviewing these documents, the Court determines
that Usry, Weeks and Gauthier, Houghtaling may remain on the
case, then the Court will set a deadline for defendants to submit
the following documents on behalf of each of the fully
indemnified defendants:
(1)

an affidavit by the defendant waiving the potential
conflict of interest with the other defendants
represented by the same counsel, and waiving the
potential conflict of interest with Dr. Gore and Dr.
Higgins; and

(2)

an affidavit by defense counsel, averring (a) that the
Sheriff's Office has agreed to indemnify the defendant
for compensatory damages, costs, and attorneys' fees
and (b) that counsel has met with the defendant and
explained the litigation, the claims against the
defendant, the ways in which the defendant's interest
is potentially adverse to the interests of the other
defendants represented by the same counsel, the effect
of the indemnification agreement, the ways in which the

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firm's representation of the defendant may be limited
by its obligations to Dr. Gore and/or Dr. Higgins, and
the effect of waiving each of the identified conflicts.
In addition, if any of the documents that the Court has
ordered defendants to file contains confidential client
information or information subject to the attorney-client
privilege or work-product privilege, defendants may file the
document under seal.

New Orleans, Louisiana, this 1st day of April, 2015.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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