DOE v. REGIONAL SCHOOL UNIT 21
Filing
85
MEMORANDUM DECISION AND ORDER denying 76 Motion to disqualify counsel. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JANE DOE, individually and as parent
and next friend of JOHN DOE, a minor,
Plaintiff
v.
REGIONAL SCHOOL UNIT NO. 21,
Defendant
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No. 2:11-cv-25-DBH
MEMORANDUM DECISION AND ORDER ON MOTION TO DISQUALIFY COUNSEL
The defendant, Regional School Unit No. 21 (“RSU No. 21”), moves to disqualify the
plaintiff’s counsel, Richard O’Meara, Esq., and the law firm of Murray Plumb & Murray
(“Murray Plumb”), on the ground that O’Meara and Murray Plumb have an irresolvable conflict
of interest in representing the plaintiff’s interests adverse to RSU No. 21. See Defendant’s
Motion To Disqualify Plaintiff’s Counsel (“Motion”) (ECF No. 76) at 1. For the reasons that
follow, the Motion is denied.1
I. Applicable Legal Standards
“[T]he district court has the duty and responsibility of supervising the conduct of
attorneys who appear before it.” Kevlik v. Goldstein, 724 F.2d 844, 847 (1st Cir. 1984). This
court has adopted, “as its standard for professional conduct[,] the Maine Rules of Professional
Conduct adopted by the Supreme Judicial Court of Maine, as amended from time to time by that
Court.” Loc. R. 83.3(d).
In Maine, the Law Court has held that disqualification of an attorney is
appropriate only where the moving party produces evidence supporting two
1
“A motion to disqualify counsel is a non-dispositive pretrial motion on which a Magistrate Judge may enter a
decision, rather than merely recommend a decision.” Perkins v. Rieser, No. 3:07-cv-325, 2012 WL 1606657, at *1
(S.D. Ohio May 8, 2012) (citing 28 U.S.C. § 636(b)).
1
findings: (1) “continued representation of the nonmoving party by that party’s
chosen attorney results in an affirmative violation of a particular ethical rule” and
(2) continued representation by the attorney would result in “actual prejudice” to
the party seeking that attorney’s disqualification. Morin v. Maine Educ. Ass’n,
993 A.2d 1097, 1100 (Me. 2010). As the party moving for disqualification,
Defendant “has the burden of showing the grounds for disqualification.” Casco
N. Bank v. JBI Assocs. Ltd., 667 A.2d 856, 859 (Me. 1995). Any order
disqualifying an attorney must include “express findings of that ethical violation
and resulting prejudice.” Morin, 993 A.2d at 1100.
Concordia Partners, LLC v. Ward, No. 2:12-cv-138-GZS, 2012 WL 3229300, at *1 (D. Me.
Aug. 6, 2012).
RSU No. 21 invokes Maine Rules of Professional Conduct 1.9(a), 1.9(b), and 1.10(a) as
grounds for the disqualification of O’Meara and Murray Plumb. See Motion at 5-10. Rule 1.9
provides, in relevant part:
(a)
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 that person’s interests are materially adverse to the interests of the former
client unless the former client gives informed consent, confirmed in writing.
(b)
A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer formerly was
associated had previously represented a client
(1)
whose interests are materially adverse to that person; and
(2)
about whom the lawyer had acquired information protected by
Rule 1.6 and 1.9(c) that is material to the matter unless the former client
gives informed consent, confirmed in writing.
Me. Rules of Prof’l Conduct R. 1.9.2 Rule 1.10(a) provides:
2
Rule 1.6 provides, in relevant part: “A lawyer shall not reveal a confidence or secret of a client unless . . . the client
gives informed consent[.]” Me. Rules of Prof’l Conduct R. 1.6(a). “As used in Rule 1.6, ‘confidence’ refers to
information protected by the attorney-client privilege under applicable law, and ‘secret’ refers to other information
relating to the representation if there is a reasonable prospect that revealing the information will adversely affect a
material interest of the client or if the client has instructed the lawyer not to reveal such information.” Id. 1.6(d).
Rule 1.9(c) provides: “A lawyer who has formerly represented a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not thereafter: (1) use confidences or secrets of a former client to
the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when
(continued on next page)
2
While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so
by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the
prohibited lawyer and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm.
Id. 1.10(a).
II. Factual Background
Eric Herlan, Esq., has worked as an attorney at the law firm of Drummond Woodsum &
MacMahon (“Drummond Woodsum”) since 1988. Affidavit of Eric R. Herlan, Esq. (“First
Herlan Aff.”) (ECF No. 76-1), attached to Motion, ¶ 1. His practice involves representation of
public school units in Maine, and he has done extensive work over the years representing public
school units in the area of special education. Id.
Beginning in the summer of 2010, Herlan represented, and served as lead counsel for,
RSU No. 21 on special education issues involving student John Doe, who is the subject matter of
the instant case. Id. ¶ 2. This included representing RSU No. 21 in preparation for and at a
special education administrative hearing regarding John Doe in the fall of 2010 and on appeal to
this court of that administrative hearing decision. Id. The representation also included advising
RSU No. 21 on legal issues surrounding ongoing programming determinations that were
required to be made about this student during the course of legal proceedings. Id. The instant
action was filed on January 20, 2011. ECF No. 1. Herlan and Peter Felmly, Esq., also of
Drummond Woodsum, entered their appearances on behalf of RSU No. 21 and filed an answer
and counterclaim challenging the decision of the administrative hearing officer. Declaration of
Richard L. O’Meara (“O’Meara Decl.”) (ECF No. 80-2), attached to Plaintiff’s Objection to
Defendant’s Motion To Disqualify Plaintiff’s Counsel (“Objection”) (ECF No. 80), ¶ 4.
_____________________________
the information has become generally known; or (2) reveal confidences or secrets of a former client except as these
Rules would permit or require with respect to a client.” Id. 1.9(c).
3
With the filing of RSU No. 21’s surreply memorandum of law on March 13, 2012, ECF
No. 61, counsel of record completed briefing of the merits of the claims and counterclaims in this
action. On July 31, 2012, I issued recommended findings of fact and conclusions of law. ECF
No. 66. The parties filed partial objections to portions of my recommended decision on August
10 and August 17, 2012, respectively, ECF Nos. 70-71, followed by responses that were filed on
August 27 and September 4, 2012, respectively, ECF Nos. 72-73. On September 4, 2012, the
court scheduled oral argument on the objections for October 24, 2012. ECF No. 74. The court
has postponed oral argument pending decision of the instant motion. ECF No. 77.
Sara Hellstedt, Esq., was employed as an associate at Drummond Woodsum from
October 2007 to August 23, 2012, when she left the firm for personal reasons. Declaration of
Sara S. Hellstedt, Esq. (“Hellstedt Decl.”) (ECF No. 80-1), attached to Objection, ¶ 2. She has
worked as an associate at Murray Plumb since September 10, 2012. Id. ¶ 1.
Hellstedt was not, nor had she ever been as of November 2, 2012, a member of the Bar of
the U.S. District Court for the District of Maine. Id. ¶ 3. Since joining Murray Plumb, she has
submitted an application for admission that has been approved, and she was due to be sworn in
as a member of the federal court Bar on December 19, 2012. Id.3
While at Drummond Woodsum, Hellstedt assisted Herlan in preparing a post-hearing
memorandum in the administrative process and then worked extensively on the legal work for
managing the instant appeal, working under Herlan’s supervision and control at all times. First
Herlan Aff. ¶ 3.4 At the administrative hearing level, Hellstedt neither communicated with, nor
3
The court takes judicial notice that Hellstedt was sworn in as a member of this court’s Bar on December 19, 2012.
Hellstedt states that she had “absolutely no involvement” with this dispute at the administrative hearing level.
Hellstedt Decl. ¶ 5. However, Drummond Woodsum’s billing records indicate that, on October 27 and 28, 2010, she
did research “in preparation for post-hearing memorandum.” Invoice dated November 16, 2010 (ECF No. 83-2),
Exh. 1 to Second Affidavit of Eric R. Herlan, Esq. (“Second Herlan Aff.”) (ECF No. 83-1), attached to Defendant’s
Reply in Further Support of Motion To Disqualify (“Reply”) (ECF No. 83).
4
4
provided legal consultation to, anyone from RSU No. 21. Hellstedt Decl. ¶ 5. She did not
review the file. Id.5 She did not attend the hearing or confer with Herlan about the case during
this period of time. Id. On November 13, 2010, Hellstedt went on maternity leave and did not
return to Drummond Woodsum until May 5, 2011. Id. ¶ 6. During her maternity leave, she did
no work for Drummond Woodsum. Id.
In the summer of 2011, Herlan asked Hellstedt to assist him with RSU No. 21’s appeal of
the hearing officer’s decision in this case. Id. ¶ 7. Hellstedt billed 142.70 hours working directly
on this appeal. First Herlan Aff. ¶ 4. She did extensive work researching legal issues, reviewing
the hearing transcript and records from the hearing in depth, and preparing many of the initial
drafts and later revisions to submissions prepared for this court. Id.6
Although Hellstedt does not have access to her billing records, her memory is that the
vast majority of her billable time involved reviewing the thousands of pages of administrative
record prepared and filed by the Maine Department of Education (“MDOE”). Hellstedt Decl.
¶ 8. Herlan asked her to familiarize herself with the entire record and to prepare a detailed index
of the hearing transcript, which was hundreds of pages long. Id. He then instructed her to
review the written submissions that he had prepared and submitted during the administrative
proceedings and to update the factual citations therein to reflect the numbering in the record as
filed by the MDOE. Id. This was a tedious and time-consuming process that, in Hellstedt’s
view, could have been accomplished by a paralegal. Id.
5
Hellstedt also states that she did not have access to the file. Hellstedt Decl. ¶ 5. However, Herlan avers that
Drummond Woodsum rarely limits attorney access to client files on its file server, and all RSU No. 21 client files in
this matter are available to all attorneys on the file system. Second Herlan Aff. ¶ 4.
6
Hellstedt does not recall preparing the initial draft of any court submissions. Hellstedt Decl. ¶ 11. She recalls that
Herlan or Felmly prepared the initial drafts and then instructed her to revise them by inserting text, including
citations and legal arguments based on the research that she had been asked to conduct. Id. However, Drummond
Woodsum’s billing records indicate that Hellstedt worked on drafting, revising, and finalizing the appellate brief
filed in this case. Invoice dated March 17, 2012 (ECF No. 83-4), Exh. 3 to Second Herlan Aff.
5
At certain points during the litigation, Herlan directed Hellstedt to conduct legal research
on certain narrow issues of the law. Id. ¶ 10. She believes that the results of this research were
used to bolster arguments that Herlan was advancing in his court submissions. Id. Herlan also
instructed Hellstedt to locate string citations in support of certain legal arguments that he was
advancing. Id. Drummond Woodsum’s billing records reflect that Hellstedt invested at least 18
hours researching the stay-put issue in this case. Invoices dated October 27, 2011 (ECF No. 833), March 17, 2012 (ECF No. 83-4), Exhs. 2-3 to Second Herlan Aff.
Herlan states that he and Hellstedt had a number of discussions regarding RSU No. 21’s
case strategy on appeal and the strengths and weaknesses of various arguments that were or
could be a part of the appeal. First Herlan Aff. ¶ 5. In addition, according to Herlan, they spoke
a number of times regarding the status of the student at school during the course of the
proceedings under the “stay put” provision of state and federal law and regarding a number of
options through which the child’s placement might be altered to address his needs. Id. This
included discussion of information that the client had provided Herlan regarding difficulties that
the student was encountering in his stay put placement and some of the staffing challenges
resulting from that placement. Id. Herlan adds that he and Hellstedt also discussed some of the
special circumstances presented by the person who served as the student’s special education
teacher during the 2010-11 school year, information that was provided to Herlan by RSU No. 21
officials. Id. Hellstedt and Herlan also discussed the views of the Superintendent of Schools
regarding the handling of the case as it proceeded. Id. In Herlan’s view, the substance of these
discussions was confidential attorney client information. Id.
Hellstedt recalls discussing the case with Herlan from time to time over the course of
several months, but has no recollection of receiving any information that would qualify as
6
involving a client confidence or secret. Hellstedt Decl. ¶ 12. Apart from discussing a particular
individual’s testimony at the hearing, which was available to both sides in the dispute, she has no
recollection of discussing with Herlan any “special circumstances” presented by the student’s
special education teacher during the 2010-11 school year. Id. ¶ 13. She does recall Herlan
telling her that the Superintendent of Schools was “angry” and “mad at his staff” because RSU
No. 21 did not prevail at the administrative hearing, but she viewed this as a natural and expected
reaction from the losing party in a litigated case, as opposed to a client confidence. Id. She has
no recollection of any other conversation with Herlan about the superintendent’s position with
regard to the handling of this case. Id.
Hellstedt states that “at no time” during her work on this case did she ever communicate
with anyone from RSU No. 21, whether in person or by telephone or by email. Id. ¶ 9. She has
no recollection of ever being copied on communications between Herlan and anyone at RSU No.
21. Id. She did not attend the IEP team meeting referenced in Herlan’s affidavit and has no
recollection of even being aware that it had occurred. Id. She has no recollection of ever
meeting or communicating with Susan Mulsow, RSU No. 21’s special education director, with
regard to this or any other matter. Id. However, Drummond Woodsum’s billing records reflect
that on November 22, 2011, Hellstedt reviewed special education policies for necessary updates
and drafted an email to “Ms. Muslow” regarding the same, and on January 18, 2012, she drafted
an email to “Ms. Muslow” attaching referral and pre-referral policies. Invoices dated December
8, 2011, and February 13, 2012 (ECF No. 83-6), Exh. 5 to Second Herlan Aff.
As part of the process of interviewing Hellstedt, Murray Plumb inquired of her
concerning her involvement with pending matters for which Drummond Woodsum served as
opposing counsel. O’Meara Decl. ¶ 5. Murray Plumb learned that Hellstedt had done some
7
work on this case several months after it had been filed in federal court, although she was not a
member of the Bar of this court and had never entered an appearance in the action. Id. ¶ 6. She
explained, as described in her declaration, that the work she performed generally consisted of
indexing the lengthy administrative record and hearing transcript, inserting factual citations from
the record into the briefs, and conducting some targeted research for use in submissions to this
court. Id. She further informed Murray Plumb that she had no communication with anyone
representing RSU No. 21 and no knowledge of any information that she considered to be secrets
or confidences as defined in Rule 1.6 of the Maine Rules of Professional Conduct. Id.
As part of its due diligence, Murray Plumb contacted the office of Maine Bar Counsel for
advice on interpretation of Rule 1.9 and had multiple telephone conversations with Maine’s
Associate Bar Counsel. Id. ¶ 7. Murray Plumb was advised by Bar Counsel that, under a
reasonable interpretation of Rule 1.9, the type of “back office” work in which Hellstedt had
engaged in connection with this action did not constitute “representation” of the client as defined
in Rule 1.9(a).
Id.
Bar Counsel advised that any conflict of interest analysis should be
conducted under Rule 1.9(b), with the focus on whether Hellstedt had any actual knowledge of
any confidences or secrets of her former firm’s client, RSU No. 21. Id. Because Hellstedt had
assured Murray Plumb that she had no actual knowledge of client confidences or secrets of RSU
No. 21 and did not recall gaining any such knowledge during the course of her work, Murray
Plumb concluded that her joining the firm would not create a conflict of interest that would
jeopardize its continued representation of the plaintiff in this action. Id.
After Hellstedt left Drummond Woodsum, on Drummond Woodsum’s advice, RSU No.
21 hired Bryan Dench, an attorney at a different law firm and a recognized expert on attorney
ethics issues, to advise it concerning potential conflict issues. First Herlan Aff. ¶ 6. Dench’s
8
understanding, based on conversations with Herlan and Mulsow and a review of billing records,
was that:
Beginning in June 2011 attorney Hellstedt worked in close association with
attorney Herlan on the case, recording more than 140 hours of time before her
departure in August 2012, some 14 months later. She participated in the analysis
of the case and developing the client’s theory of the case. Her time entries reflect,
among other things, work on analysis and preparation of case strategy.
She participated in drafting of appellate briefs, research and analysis into the facts
of the case, discussions of case strategy and tactics, and discussion of information
about the elementary [school] student who is the subject of the case, about the
teacher in the student’s current placement, and about the special education
administration. In the course of performing her work, she received and reviewed
information communicated to your firm by the client, RSU 21, for purposes of the
case and in confidence. She spent many hours reviewing hearing transcripts and
depositions. She learned facts communicated to counsel by the client and about
the client and RSU 21 administrators and personnel that were important to tactical
decisions in the case and revealed its strengths and weaknesses from the client’s
perspective.
Letter dated October 4, 2012, from Bryan M. Dench to Benjamin Marcus, Esq. (“Dench Letter”)
(ECF No. 76-2), Exh. 1 to First Herlan Aff., at 1-2. Dench concluded these facts created a clear
conflict of interest for Hellstedt and, by imputation, for Murray Plumb pursuant to Maine Rule of
Professional Conduct 1.9(b), and implicated her responsibilities pursuant to Rule 1.9(c). See id.
at 2.7 Dench discussed this with RSU No. 21, which was unwilling to consent to Murray
Plumb’s continued representation adverse to RSU No. 21. Id. at 3-4. Drummond Woodsum
requested that Murray Plumb withdraw from representing the plaintiff, but received no
confirmation that Murray Plumb was willing to do so. First Herlan Aff. ¶ 7.
Out of an abundance of caution, Murray Plumb instructed Hellstedt to have no contact
with any of Murray Plumb’s pending matters with respect to which Drummond Woodsum serves
7
Dench stated that, on its face, paragraph (a) of Rule 1.9 would be violated by Hellstedt’s representation of the
adverse party. Dench Letter at 3 n.2. He added that “[i]t appears, however, that when a lawyer moves from one
firm to another, the situation is governed by Rule 1.9(b). Rule 1.10, Comment [2].” Id.
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as opposing counsel. O’Meara Decl. ¶ 11. Murray Plumb has excluded Hellstedt from all
communications within the firm related to these cases. Id. She has had no contact whatsoever
with this case other than to review the affidavit filed by Herlan and draft her declaration in
response. Id.; Hellstedt Decl. ¶ 14.
III. Discussion
A. Parties’ Arguments
RSU No. 21 contends that, when Hellstedt left Drummond Woodsum and joined Murray
Plumb, “she effectively switched sides in this case.” Motion at 5. It reasons that:
1.
Rule 1.9(a), on its face, prohibits Hellstedt from representing the plaintiff because
she formerly represented RSU No. 21 in the same action. See id. at 6-7 & n.2.
2.
Rule 1.9(b), which also applies when a lawyer moves from one firm to another,
prohibits Hellstedt from representing the plaintiff because she can be presumed from the
circumstances to have acquired confidences or secrets of RSU No. 21 and, in any event, RSU
No. 21 demonstrates that she did in fact acquire such information, namely, case strategy,
including the strengths and weaknesses of various arguments that could be made on appeal, and
confidential information that the client had provided Herlan, including challenges for both the
student and school staff in his stay put placement. See id. at 7-10.
3.
RSU No. 21 declines to consent to Hellstedt’s representation. See id. at 4-5.
4.
In these circumstances, Rule 1.10 prohibits O’Meara and Murray Plumb from
representing the plaintiff. See id. at 7. The fact that Murray Plumb has taken steps to screen
Hellstedt from contact with this case is immaterial; in Maine, such screening does not avoid the
need to obtain consent. See id. at 10 n.5.
The plaintiff responds that:
10
1.
To be entitled to disqualify Murray Plumb as the plaintiff’s counsel, RSU No. 21
must meet the strict two-part test laid out by the Law Court in Morin, which requires that a
movant demonstrate not only an affirmative violation of an ethical rule but also that the
continued representation would result in actual prejudice to the movant. See Objection at 8-10.
2.
RSU No. 21 fails to demonstrate any affirmative violation of Rule 1.9(a). As Bar
Counsel advised Murray Plumb, Rule 1.9(a) is inapplicable in these circumstances because
Hellstedt did not represent RSU No. 21. See id. at 10-11. She was not a member of the Bar of
this court, never entered an appearance on behalf of RSU No. 21, had no role in administrative
proceedings before the MDOE, and primarily performed “back office” tasks, notably reviewing
and indexing the voluminous record, at the direction of Herlan, one of RSU No. 21’s two counsel
of record in this action. See id.
3.
RSU No. 21 fails to demonstrate any affirmative violation of Rule 1.9(b). The
Maine Reporter’s Notes to the rule make clear that “[i]n the departing lawyer context, knowledge
of confidences and secrets by some members of a firm is not per se imputed to the departing
lawyer[,]” and a departing attorney must have “actual knowledge of information protected by
Rules 1.6 and 1.9(c).” Id. at 12 (quoting Me. Rules of Prof’l Conduct R. 1.9 notes, ¶¶ 7, 9).
While at Drummond Woodsum, Hellstedt had no direct communication with any representative
of RSU No. 21. See id. at 13. To the extent that she is alleged to have received confidential
information about legal strategy to be employed in this action, it no longer constitutes a material
client confidence because both sides have executed their strategies through the preparation and
filing of briefs with the court. See id. at 13-14. While Hellstedt recalls being informed that the
superintendent was unhappy about having lost the administrative hearing, that is not a client
confidence or secret, and she has no recollection of being apprised of any client communications
11
that would qualify as such. See id. at 14. She, therefore, lacks actual knowledge of any client
confidence or secret. See id.
4.
In any event, RSU No. 21 fails to demonstrate actual prejudice, and it is difficult
to see how it could. See id. at 14-17. Hellstedt did not join Murray Plumb until after both sides
had briefed their partial objections to the recommended decision in this case. See id. at 15. Even
if Hellstedt did possess actual knowledge of any client confidence or secret, it is difficult to see
how such knowledge could have any materially prejudicial impact on the case at this late
juncture. See id. In addition, although the Maine rules do not contain the so-called “screening”
provision found in Rule 1.10(a)(2) of the American Bar Association’s Model Rules of
Professional Conduct, Murray Plumb took affirmative steps to insulate Hellstedt from all contact
with pending cases with respect to which Drummond Woodsum serves as opposing counsel,
further minimizing any risk of actual prejudice to RSU No. 21. See id. at 16-17.
RSU No. 21 counters that the plaintiff’s reliance on Morin is misplaced in that (i) federal
common law, rather than Maine law, governs for purposes of the standard for disqualification,
and, (ii) in any event, both Morin and Concordia Partners, in which this court applied the Morin
standard, are distinguishable in that they did not involve a breach of a lawyer’s duty of loyalty to
a client. See Reply at 2-3 & nn.2-3.8
It further argues that, (i) for purposes of Rule 1.9(a), Hellstedt was indeed its lawyer,
doing much more than mere “back office” work, see id. at 3-6, and (ii) for purposes of Rule
1.9(b), she had actual knowledge of material client confidences and secrets, both in the form of
8
RSU No. 21 advocates for the application of the test for disqualification laid out in Kevlik. See Reply at 2; Kevlik,
724 F.2d at 851 (“[T]he former client need show no more than that the matters embraced within the pending suit
wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of
action wherein the attorney previously represented him, the former client. The Court will assume that during the
course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the
representation. It will not inquire into their nature and extent.”) (citation and internal quotation marks omitted).
12
the superintendent’s reaction to litigation, which was impermissibly disclosed both to Murray
Plumb and in the plaintiff’s opposition to the instant motion, and in the form of her knowledge of
case strategy, which is still material given that oral argument has been requested, one or both
parties may appeal the court’s ultimate decision, and there is always the potential for the parties
to engage in settlement negotiations, see id. at 6-7. It adds that any “screen” set up by Murray
Plumb clearly has been ineffective, Hellstedt having already revealed a client confidence, and it
should not be forced to endure any further prejudice or threat of improper disclosure in this case.
See id. at 7.
B. Analysis
1. Applicability of Morin Test
This motion turns on the threshold question of the applicability of the Morin
framework. I conclude that Morin does apply. This court has adopted “as its standard for
professional conduct the Maine Rules of Professional Conduct adopted by the Supreme Judicial
Court of Maine, as amended from time to time by that Court.” Loc. R. 83.3(d). In turn, it has
applied the standard for disqualification of attorneys set forth by the Law Court. See, e.g.,
Concordia Partners, 2012 WL 3229300, at *1; Clean Invs., LLC v. DiSanto, 489 F. Supp.2d 100,
101-02 (D. Me. 2007); Kuniegel v. Elgin Techs., Inc., 196 F.R.D. 4, 5-6 (D. Me. 2000).
It is true that neither Morin, Concordia Partners, nor a third case applying the Morin
standard, Liberty v. Bennett, 2012 ME 81, 46 A.3d 1141, concern an asserted violation of Rule
1.9(a). See Concordia Partners, 2012 WL 3229300, at *1; Liberty, 2012 ME 81, ¶¶ 20-21, 46
A.3d at 1146; Morin, 2010 ME 36, ¶ 6, 993 A.2d at 1099. On the other hand, no case holds that
the Morin rubric does not apply when the duty of loyalty is at stake, and the Law Court, in
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Morin, did not tether its test to the type of ethics violation alleged. To the contrary, it broadly
stated:
To guard against such abuse [the use of disqualification motions for tactical
advantage], we have said that disqualification is appropriate only when the
moving party produces evidence supporting two findings. First, disqualification
must serve the purposes supporting the ethical rules. A party moving to
disqualify an attorney has the burden of demonstrating more than mere
speculation that an ethics violation has occurred; she must establish in the record
that continued representation of the nonmoving party by that party’s chosen
attorney results in an affirmative violation of a particular ethical rule. . . .
Second, we require a showing that continued representation by the attorney would
result in actual prejudice to the party seeking that attorney’s disqualification. . . .
A mere general allegation that the attorney has some confidential and relevant
information he gathered in the previous relationship will not support
disqualification. Rather the moving party must point to the specific, identifiable
harm she will suffer in the litigation by opposing counsel’s continued
representation. . . .
Moreover, if the moving party produces evidence of both an ethical violation and
actual prejudice, any court order disqualifying the attorney must include express
findings of that ethical violation and resulting prejudice. In the absence of such
findings, we will uphold the attorney disqualification only if both the ethical
violation and the prejudice to be suffered are obvious from the record.
Morin, 2010 ME 36, ¶¶ 9-11; 933 A.2d at 1100 (citations and internal quotation marks omitted).
Accordingly, the Morin framework appropriately is applied here.
2. Showing of Ethical Violation
I conclude that (i) RSU No. 21 fails to establish an affirmative violation of Rule 1.9(b),
(ii) the question of whether it has established an affirmative violation of Rule 1.9(a) is a close
one, and, (iii) regardless, RSU No. 21 fails to demonstrate actual prejudice, rendering
disqualification inappropriate.
a. Rule 1.9(b)
As the plaintiff observes, see Objection at 12-13, Rule 1.9(b) is implicated only when a
departing lawyer has actual knowledge of a client confidence or secret, see Me. Rules of Prof’l
14
Conduct R. 1.9 cmt. [5] (Rule 1.9(b) “operates to disqualify the lawyer only when the lawyer
involved has actual knowledge of information protected by Rules 1.6 and 1.9(c)”). In addition,
“[i]n the departing lawyer context, knowledge of confidences and secrets by some members of a
firm is not per se imputed to the departing lawyer.” Me. Rules of Prof’l Conduct R. 1.9 notes,
[¶ 8].
The record indicates that Hellstedt has actual knowledge of (i) the superintendent’s
reaction to the adverse administrative hearing decision, and (ii) case strategy discussions.9
However, the plaintiff contests that the superintendent’s reaction, as conveyed to Hellstedt by
Herlan, qualifies as a client confidence or secret, and that any case strategy discussions of which
Hellstedt may have knowledge are “material to the matter[.]” See Objection at 13-14 (quoting
Me. Rules of Prof’l Conduct R. 1.9(b)(2)).
With respect to the superintendent’s reaction, the Law Court has recognized that
“[c]onfidential information may encompass more than direct communications from the client”
and “could include information concerning a client’s ability to deal with the stress of litigation,
or serious financial difficulties that would affect the client’s ability to litigate.”
Adam v.
Macdonald Page & Co., 644 A.2d 461, 464 (Me. 1994). Nonetheless, as Judge Hornby has
9
As RSU No. 21 points out, see Motion at 7 n.4, actual knowledge can be inferred from the facts and circumstances,
see Me. Rules of Prof’l Conduct R. 1.9 cmt. [6] (“Application of paragraph (b) depends on a situation’s particular
facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way lawyers
work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in
discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the
firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and
participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be
inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other
clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.”). RSU
No. 21 argues that the fact that all of its files were available to all attorneys on the file system at Drummond
Woodsum cuts in favor of drawing an inference that Hellstedt had actual knowledge of client confidences or secrets.
See Reply at 4 n.4. Yet, Hellstedt denies that she ever reviewed the file, see Hellstedt Decl. ¶ 5, overcoming any
such inference.
15
observed, this does not necessarily mean that a client’s reaction to litigation qualifies as a
confidence or secret:
On how DiSanto defends himself in litigation, it is true that Adam says that
relevant, confidential information ‘could include information concerning a
client’s ability to deal with the stress of litigation.’ I conclude that the operative
word is ‘could,’ and that the Law Court was referring to something unique or
peculiar (and confidential), not the ordinary reactions people have to being sued.
In only the previous paragraph, the Law Court had pointed out that motions for
disqualification ‘can be abused as a litigation tactic.’ There is no suggestion that
Adam’s brief reference to the ‘stress of litigation’ was designed to be a blanket
pronouncement that a lawyer can never in the future appear against a previous
client if the lawyer has once observed the client in a litigation setting. Something
more is required than an assumption that representing a client ‘necessarily’
imparts confidential information about ability to ‘deal with the stress of
litigation.’ DiSanto has not provided a sufficient basis for concluding that
Attorney Libby has acquired confidential information about his ability to deal
with such stress.
DiSanto, 489 F. Supp.2d at 102 (citations and footnote omitted). Judge Hornby held that
DiSanto fell short of making the requisite showing to disqualify Libby from representing his
opponent in an unrelated matter when he demonstrated only that he had spoken freely with Libby
about litigation strategies and tactics and possibilities for settling the case, and that Libby had the
opportunity to observe and interact with him regarding his reaction to the litigation process and
the effect that it was having upon him. See id. at 102 n.4 (“Those statements are insufficient to
meet the Adam standard. Adam held that ‘the former client has the burden to show that the
attorney actually acquired information that is both confidential and relevant to the second action,
or that would give the second client an advantage in the action against the former client.’”)
(citations and internal quotation marks omitted) (emphasis added by Judge Hornby).10
10
Subsequent to the issuance of DiSanto, the Law Court adopted the Maine Rules of Professional Conduct,
effective August 1, 2009. See Fiber Materials, Inc. v Subilia, 2009 ME 71, ¶ 35, 974 A.2d 918, 929 (Alexander, J.,
concurring). However, the Maine Reporter’s Notes continue to indicate that a client’s reaction to the stress of
litigation is not necessarily confidential. See Me. Rules of Prof’l Conduct R. 1.9 notes, [¶ 4] (“Using information
about . . . a former client’s financial difficulties or a client’s ability to weather the stress of litigation, may very well
(continued on next page)
16
In this case, from all that appears, Hellstedt never personally interacted with or observed
the superintendent. She merely learned from Herlan that the superintendent was “angry” and
“mad at his staff” because RSU No. 21 did not prevail at the administrative hearing. Hellstedt
Decl. ¶ 13. She says that she views this as a natural and expected reaction from the losing party
in a litigated case rather than a client confidence, see id., and I agree that it is appropriately
characterized as such. There was nothing unique or peculiar in the superintendent’s reaction as
conveyed to Hellstedt by Herlan.
With respect to case strategy, the plaintiff argues that any confidential information that
Hellstedt received about legal strategy to be employed in this action no longer is material in that
both sides have executed their strategies through the preparation and filing of briefs with the
court. See Objection at 13-14. She notes that “[i]nformation that has been disclosed to the
public or to other parties adverse to the former client ordinarily will not be disqualifying.” Id. at
14 n.2 (quoting Model Rules of Prof’l Conduct R.1.9 cmt. [3]). In response, RSU No. 21 points
out that this case is still pending, oral argument has been requested, and there is a potential for an
appeal or even settlement negotiations. See Reply at 7. It reasons that “[t]he confidential
information that Attorney Hellstedt has already improperly disclosed could factor significantly
into the parties’ strategies going forward[.]” Id. Yet, it does not explain how. As discussed
above, RSU No. 21 falls short of showing that Hellstedt has already disclosed a client confidence
or secret. It does not demonstrate that Hellstedt acquired any case strategy knowledge that is not
already apparent in its briefs or explain how any such knowledge could make a material
difference with respect to oral argument, any appeal, or any settlement negotiations.
_____________________________
materially advance the current client’s position in a subsequent adverse matter – even if the matters involve different
transactions, facts or legal disputes.”).
17
For all of these reasons, RSU No. 21 falls short of demonstrating an affirmative violation
of Rule 1.9(b).
b. Rule 1.9(a)
The question of whether RSU No. 21 has made a sufficient showing of an affirmative
violation of Rule 1.9(a) is a closer one. An attorney-client relationship is established when “(1) a
person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to
matters within the attorney’s professional competence, and (3) the attorney expressly or
impliedly agrees to give or actually gives the desired advice or assistance.” Board of Overseers
of Bar v. Mangan, 2001 ME 7, ¶ 9, 763 A.2d 1189, 1192-93 (citations and internal quotation
marks omitted).
The plaintiff argues that Hellstedt never personally represented RSU No. 21 but, rather,
merely performed “back office” work. See Objection at 10-11. She emphasizes that Hellstedt
never entered an appearance on behalf of RSU No. 21, had no communications with RSU No. 21
representatives, and devoted a considerable portion of the time that she spent on this case to
reviewing and indexing the lengthy administrative record and hearing transcript. See id.
Nonetheless, Hellstedt billed more than 140 hours working with Herlan on this matter,
discussed case strategy with him, performed legal research, and drafted and/or revised briefs
filed with this court. See First Herlan Aff. ¶¶ 4-5. In addition, Hellstedt did email Ms. Mulsow,
RSU No. 21’s special education director, on two occasions, although it is not clear that those
emails concerned the instant case, versus a general policy review and update. See ECF No. 83-6.
In these circumstances, it is a stretch to conclude that Hellstedt did not represent RSU No. 21.
Compare, e.g., Fematt v. City of Chicago, No. 11 CV 1530, 2012 WL 1681990, at *4 (N.D. Ill.
May 9, 2012) (for purposes of disqualification analysis, attorney did not represent client when,
18
although assigned to a case that quickly settled, she never filed an appearance, never met or
conversed with the individuals involved, never read or researched information regarding the
claims of the case, never went to court, and never drafted any pleadings).
Nonetheless, I need not definitively resolve this point, because I conclude that RSU No.
21 falls short of making the requisite showing of actual prejudice.11
3. Showing of Actual Prejudice
In its reply brief, RSU No. 21 makes no separate argument that it has shown actual
prejudice, seemingly relying on its contention that Morin does not apply in these circumstances.
See generally Reply.
Nor does the record disclose actual harm.
As noted above, the
superintendent’s reaction to losing the administrative hearing decision does not qualify as a
client confidence or secret, and, in any event, RSU No. 21 does not identify any concrete harm
flowing from the disclosure of that information. There is no evidence that Hellstedt, who has
been screened by Murray Plumb from its work on this matter, has disclosed any litigation
11
It is not clear that Rule 1.9(a) even applies when a lawyer moves from one firm to another. Bryan Dench, the
ethics expert hired to represent RSU No. 21, indicates that it does not. See Dench Letter at 3 n.2 (“On its face,
paragraph (a) would be violated by attorney Hellstedt’s representation of the adverse party. It appears, however,
that when a lawyer moves from one firm to another, the situation is governed by Rule 1.9(b).”) (citing Me. Rules of
Prof’l Conduct R. 1.10 cmt. [2]). See also, e.g., In re Outdoor Prods. Corp., 183 B.R. 645, 648 n.2 (Bankr. M.D.
Fla. 1995) (same); Me. Rules of Prof’l Conduct R. 1.9 cmt. [4] (“When lawyers have been associated within a firm
but then end their association, the question of whether a lawyer should undertake representation is more
complicated. There are several competing considerations. . . . If the concept of imputation were applied with
unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice
setting to another and of the opportunity of clients to change counsel. Paragraph (b) operates to disqualify the
lawyer only when the lawyer involved has actual knowledge of information protected by Rule 1.6 and 1.9(c). Thus,
if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and
that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from
representing another client in the same or a related matter even though the interests of the two clients conflict.”); id.
R. 1.10 cmt. [2] (“The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty
to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise
that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the
premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the
lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer
moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b).”). Nonetheless, the plaintiff
has not squarely made this argument in opposing the instant motion, see Objection at 10-11, and, therefore, I do not
address it here.
19
strategy or that any strategy of which she is aware remains confidential. This is fatal to RSU No.
21’s quest to disqualify Murray Plumb. See, e.g., Concordia Partners, 2012 WL 3229300, at *7
(“In this case, Defendant has made no attempt to show specific, identifiable harm. Nothing in the
record suggests that Brann & Isaacson’s representation of Early Advantage and Great Books
gave them access to any confidential information that would disadvantage Ward in the pending
litigation with Concordia. Therefore, the Court alternatively concludes that the request for
disqualification must be denied based on Defendant’s failure to satisfy the actual prejudice prong
required under Morin.”).
IV. Conclusion
For the foregoing reasons, RSU No. 21’s motion to disqualify Attorney O’Meara and the
law firm of Murray Plumb is DENIED.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 7th day of February, 2013.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
20
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