Integrity National Corporation, Inc. v. DSS Services, Inc.

Filing 25

MEMORANDUM OPINION AND ORDER denying 21 Respondent's Motion to Disqualify Counsel and directing that Petitioner shall file its Motion to Confirm Arbitration Award. Signed by Judge Paul W. Grimm on 6/29/2017. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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INTEGRITY NATIONAL
CORPORATION,

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Petitioner,
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v.

Case No.: PWG-17-160
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DSS SERVICES, INC.,
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Respondent.
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MEMORANDUM OPINION AND ORDER
Petitioner Integrity National Corporation (“Integrity”) has filed an application for
confirmation of an arbitration award issued against Respondent DSS Services, Inc. (“DSS”) on
December 15, 2016. Pet., ECF No. 1. In its Answer, DSS argued that the application could not
be brought by Integrity’s counsel, Janice Davis, because she had previously represented DSS in
related proceedings. Answer 3–4, ECF No. 9. At a telephone conference held pursuant to Fed.
R. Civ. P. 16, I ordered DSS to file a Motion to Disqualify Counsel. ECF No. 20. Thereafter,
DSS filed its Motion, ECF No. 21, which is fully briefed, Resp’t’s Mem., ECF No. 21-1; Pet’r’s
Opp’n, ECF No. 22; Resp’t’s Reply, ECF No. 24. No hearing is necessary, Loc. R. 105.6 (D.
Md.). While Davis represented DSS-Integrity, LLC (“DSS-Integrity”), a joint venture between
DSS and Integrity, DSS has not established that she ever represented DSS itself. I will therefore
deny DSS’s Motion to Disqualify, and Integrity may proceed by filing a Motion to Confirm
Arbitration Award.

Background
The Small Businesses Administration’s Business Development Program (also known as
the “8(a) program”) provides assistance to firms owned and controlled by socially and
economically disadvantaged individuals. 15 U.S.C. § 637(a). Among the forms of assistance
available under the program, participating firms can form joint ventures with mentor firms for
the purpose of jointly competing for federal government contracts. 13 C.F.R. § 124.520. In
January 2012, Integrity—a janitorial services contractor and a “graduate” of the 8(a) program—
agreed to partner with DSS—a general construction company and participant in the program—
and form a joint venture for the purpose of participating in the 8(a) program’s mentor-protégé
program. Hines Decl. ¶ 4, Pet’r’s Opp’n Ex. 2, ECF No. 22-1. A Joint Venture Agreement
signed by the two company’s principals established DSS-Integrity as the corporate manifestation
of the joint venture and assigned 51% of profits and losses from the venture to DSS and 49% to
Integrity. Joint Venture Agreement 1–2, Resp’t’s Mot. Ex., ECF No. 21-4.1 Pursuant to the
Agreement, the Parties secured several government contracts. Hines Decl. ¶¶ 6, 12, 19, 22.
In August or September 2013, DSS-Integrity submitted a bid in response to a solicitation
for proposals issued by the U.S. Department of Defense, Enterprise Facilities and Construction
Division, Washington Headquarters Acquisition Directorate for clinical custodial services to be
provided at the DiLorenzo TRICARE Health Clinic. Resp’t’s Mot. ¶ 5. DSS-Integrity failed to
secure the contract and submitted a bid protest to the Government Accountability Office (GAO).
Id. ¶ 7; Hines Decl. ¶ 9. Davis, who has represented Integrity in various legal matters over the

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Citations to the Joint Venture Agreement refer to CM/ECF page numbers. The Parties signed
this agreement in 2014. Id. It is unclear whether an earlier version of the Agreement exists, but
the precise date of the joint venture’s formation is immaterial to the disqualification issue
because DSS admits that Davis represented DSS-Integrity, LLC during the 2013 proceedings
that are at the heart of its Motion. Respt’t’s Mot. ¶ 8.
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past seventeen years, represented DSS-Integrity in the bid protest. Hines Decl. ¶¶ 2, 9; Davis
Decl. ¶ 2, 5, Resp’t’s Opp’n Ex. 1, ECF No. 22-1. The arbitration that is the subject of this case
dealt with another unrelated prime-sub contract between the two companies that Integrity alleges
DSS breached. Pet. ¶¶ 6–17.
Standard of Review
As explained in Jarallah v. Thompson, 123 F. Supp. 3d 719 (D. Md. 2015):
A motion to disqualify is a serious matter, which must be decided on a
case-by-case basis. This is so because two significant interests are implicated by
a disqualification motion: the client’s free choice of counsel and the maintenance
of the highest ethical and professional standards in the legal community.
Nevertheless, the guiding principle in considering a motion to disqualify counsel
is safeguarding the integrity of the court proceedings. Thus, this court must not
weigh the competing issues with hair-splitting nicety but, in the proper exercise of
its supervisory power over the members of the bar and with a view of preventing
an appearance of impropriety, [this Court] is to resolve all doubts in favor of
disqualification.
Id. at 731 (quoting Penn Mut. Life Ins. Co. v. Berck, No. DKC 09-0578, 2010 WL 3294309, at
*3) (D. Md. Aug. 20, 2010) (alterations in original)). In light of this balance, the movant bears
“a high standard of proof,” Franklin v. Clark, 454 F. Supp. 2d 356, 364 (D. Md. 2006), to
demonstrate that the attorney has violated “a rule of professional conduct that requires
disqualification,” Jarallah, 123 F. Supp. 3d at 732; see also Loc. R. 704 (making applicable the
Maryland Lawyer’s Rules of Professional Conduct (MLRPC) established by the Maryland Court
of Appeals).
Discussion
DSS moves for Davis to be disqualified pursuant to MLRPC 1.9, which governs an
attorney’s obligation to a former client; MLRPC 1.7, which addresses conflicts of interest as they
pertain to current clients; and MLRPC 3.7, which restricts a lawyer’s ability to serve as a witness
in his client’s case. Resp’t’s Mem. 3–4; Resp’t’s Reply 7–8.
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MLRPC 1.9
MLRPC 1.9 prohibits an attorney from representing a client “in the same or a
substantially related matter” in which she has represented a former client, if the current and
former clients’ interests are “materially adverse,” absent informed consent from the former
client. MLRPC 1.9(a). For MLRPC 1.9 to come into play in this case, Davis must have
represented DSS.
The Maryland Court of Appeals has “acknowledge[d] that determining ‘what
constitutes an attorney-client relationship is a rather elusive concept.’ ” Attorney
Grievance Comm’n v. Shoup, 979 A.2d 120, 135 (Md. 2009) (quoting Attorney
Grievance Comm’n v. Shaw, 732 A.2d 876, 883 (Md. 1999)) Such a relationship
may arise through an explicit agreement or “by implication from a client’s
reasonable expectation of legal representation and the attorney’s failure to dispel
those expectations.” Attorney Grievance Comm’n v. Brooke, 821 A.2d 414, 425
(Md. 2003).
Penn. Nat’l Mut. Cas. Ins. Co. v. Perlberg, 819 F. Supp. 2d 449, 453–54 (D. Md. 2011).
DSS admits in its Motion that Davis represented DSS-Integrity—a separate and distinct
corporate entity from DSS—during the 2013 bid protest. Respt’t’s Mot. ¶ 8 (“In a filing dated
December 31, 2013, current counsel for [Integrity] represented DSS-[Integrity] in its protest and
challenge of the contract award . . . .”). This is confirmed by a billing statement titled “FOR
PROFESSIONAL LEGAL SERVICES RENDERED (DSS-Integrity GAO Protest) December 1,
2013 – December 31, 2013” that Davis submitted to the parties. Billing Statement, Pet’r’s Opp’n
Ex. 4, ECF No. 22-1. In its Reply, DSS appears to argue that Davis performed the 2013 work on
behalf of DSS, not DSS-Integrity, because the billing statement was addressed to DSS. Resp’t’s
Reply 2. As DSS-Integrity was a joint venture between DSS and Integrity, I do not find it at all
inconsistent that Davis performed work on behalf of the joint venture while charging each of the
joint venture’s members for the work performed. It does not necessarily follow that DSS

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retained Davis’s services just because the company paid Davis for her work on DSS-Integrity’s
behalf.
Notwithstanding its admission that Davis represented DSS-Integrity rather than DSS, the
company at various points in its filings nevertheless insists that Davis created an “appearance” or
left the “impression” that she was representing the company. Resp’t’s Mot. ¶ 19 (“Current
counsel for [Integrity] gave DSS the impression that counsel was representing both [Integrity]
and DSS simultaneously during the period from about August, 2012 to no later than March 25,
2016 . . . .”); Resp’t’s Mem. 2 (“[Integrity]’s current counsel, Janice Davis, Esquire, of the law
firm of Davis & Steele, appeared to represent both DSS and [Integrity] and handle all of their
legal work.”); Resp’t’s Reply 2 (“[DSS President] Dwayne Holmes reasonably believed that
Davis was representing both companies [DSS and Integrity] because he thought she had been
representing them in their collaboration and joint venture undertaking to obtain contracts, from
August, 2012 through March 25, 2016.”). Beyond Davis’s representation of DSS-Integrity in its
bid protest, DSS provides no explanation for what gave it the impression that Davis was the
company’s lawyer. DSS also states that Davis “reviewed [the] Mentor/Protégé Agreement for
DSS and INC,” Resp’t’s Mot. ¶4, and that “a reasonable inferential conclusion can be drawn that
during the period August, 2012 through March, 2016, [Davis] reviewed, participated in the
drafting of, or otherwise advised both parties in matters pertaining to contracts, for example the
so-called Teaming Agreement,” Respt’t’s Reply 7. Both Integrity CEO Antoninus Hines and
Davis dispute that she played any role in drafting contracts between the two parties, Hines Decl.
¶ 8; Davis Decl. ¶¶ 3–4, 7–8, and DSS provides no evidence in support of its allegation such as
billing statements or communications between DSS and Davis regarding the contracts.

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As there is no evidence that Davis ever represented DSS, no conflict exists under
MLRPC 1.9.
MLRPC 1.7
MLRPC 1.7 prohibits a lawyer from representing a client where “a significant risk” exists
that representation of the client “will be materially limited by the attorney’s responsibilities to
another client, a former client or a third person or by a personal interest of the attorney,” absent
informed consent from both affected parties. MLRPC 1.7(a)(2). DSS argues that Davis’s
representation of DSS creates a significant risk of materially limited representation by
analogizing her representation of Integrity after having represented DSS-Integrity in its bid
protest to a case in which a lawyer represented two spouses in a tort lawsuit arising out of an
auto accident and also represented one spouse in a lawsuit against the other spouse related to the
same accident. Resp’t’s Reply 3–4 (discussing Attorney Grievance Comm’n, 107 A.3d 1150,
1163 (Md. 2015)). While it is not difficult to discern a significant risk of materially limited
representation where a lawyer represents an individual as a plaintiff in one lawsuit and sues the
same individual in another lawsuit arising out of the same set of facts, the risk is not so obvious
here.

DSS does not explain how Davis’s representation of DSS-Integrity in a bid protest

materially limits its representation of Integrity in a breach-of-contract dispute with DSS.
Because DSS has not established that a significant risk of materially limited representation
exists, there is no basis for disqualifying Davis under MLRPC 1.7.
MLRPC 3.7
MLRPC 3.7 prohibits an attorney from “act[ing] as an advocate at a trial in which the
attorney is likely to be a necessary witness,” except under limited circumstances. MLRPC
3.7(a). DSS did not even advance an argument addressing MLRPC 3.7 in its Memorandum in

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support of its Motion, and its Reply brief merely states that “given current counsel’s Declarations
and other statements made in support of her and her client’s positions, it appears that current
counsel would be in a position to violate MLRPC [3.7] if this case proceeds to trial.” Resp’t’s
Reply 7. This conclusory and speculative statement does not provide a basis for disqualification.
And, even if it did, “[a]n attorney may act as advocate in a trial in which another attorney in the
attorney’s firm is likely to be called a witness unless precluded from doing so” by either MLRPC
1.7 or 1.9. MLRPC 3.7(b). In the unlikely event that this case proceeds to trial, another attorney
at Davis’s firm could serve as trial advocate for Integrity should it appear at that time that Davis
will be called as a witness.
Conclusion
DSS has failed to put forth any basis for disqualifying Davis under MLRPC 1.7, 1.9, or
3.7. I will therefore deny its Motion, and Integrity shall file it Motion to Confirm Arbitration
Award.
ORDER
Accordingly, for the reasons stated, it is this 29th day of June, 2017, hereby ORDERED
that:
1. Respondent DSS Services Inc.’s Motion to Disqualify Counsel, ECF No. 21, IS
DENIED;
2. Petitioner Integrity National Corporation, Inc. SHALL FILE its Motion to
Confirm Arbitration Award, and briefing SHALL PROCEED in accordance with
Loc. R. 105.2 (D. Md.).
/S/
Paul W. Grimm
United States District Judge
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