Conway v. Specified Credit Association 1, Inc. et al

Filing 11

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that plaintiff's motion to disqualify [Doc. # 6 ] is denied. IT IS FURTHER ORDERED that plaintiff's motion for ruling [Doc. # 7 ] is moot.. Signed by District Judge Carol E. Jackson on 10/25/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CRYSTAL CONWAY,
Plaintiff,
vs.
SPECIFIED CREDIT ASSN. 1, INC. and
MICHAEL VARADY,
Defendants.

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Case No. 4:13-CV-1821 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to disqualify defense
counsel, Dennis J. Barton, III. Defendants have filed a response in opposition. Plaintiff
has also filed a motion for ruling on her disqualification motion.
I.

Background

Plaintiff Crystal Conway initiated this action in the Circuit Court of St. Charles
County, Missouri, claiming that the defendants violated provisions of the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692 et seq. On September 16, 2013, plaintiff
dismissed her state court action and refiled it in this district court. On September 26,
2013, defendant made an offer of judgment, which plaintiff accepted on October 3,
2013.

[Doc. #5].

On October 4, 2013, plaintiff filed the instant motion for

disqualification of defense counsel, asserting that Barton violated the Missouri Rules
of Professional Conduct.
II.

Legal Standard

Attorney disqualification is committed to the discretion of the court. Jenkins v.
State of Missouri, 931 F.2d 470, 484 (8th Cir. 1991). “Because of the potential for
abuse by opposing counsel, disqualification motions should be subjected to particularly

strict scrutiny.” Macheca Transp. Co. v. Philadelphia Indem. Co., 463 F.3d 827, 833
(8th Cir. 2006) (internal quotation and citation omitted). “A party’s right to select its
own counsel is an important public right and a vital freedom that should be preserved;
the extreme measure of disqualifying a party’s counsel of choice should be imposed
only when absolutely necessary.”

Id. (citations omitted). “Disqualification is

appropriate where an attorney’s conduct threatens to work a continuing taint on the
litigation and trial.” Gifford v. Target Corp., 723 F. Supp. 2d 1110, 1116 (D. Minn.
2010) (citation omitted). Factors to be considered include a court’s “duty to maintain
public confidence in the legal profession and its duty to insure the integrity of the
judicial proceedings.” Id. at 1116-17 (citation omitted).
III.

Discussion

Plaintiff first claims that defense counsel Barton violated Rule 4-4.2 of the
Missouri Rules of Professional Conduct by contacting her without her attorney’s
consent. Rule 4-4.2 provides that a lawyer representing a client
shall not communicate about the subject of the representation with a
person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order.
Mo. S. Ct. R. 4-4.2.
On September 6, 2013, while this matter was still pending in state court, Mr.
Barton’s law firm sent a letter to plaintiff at her home address. The letter sought
collection of a debt owed to Title Loan Company. Because Title Loan Company is not
a party to this lawsuit, Mr. Barton argues that his firm’s contact with plaintiff was not
improper. However, documents produced in the state court action establish that the
September 6 letter was an attempt to collect the same debt that is the subject of this
lawsuit. See Doc. #10-1. It goes without question that an attorney’s unauthorized
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communication with another attorney’s client is inappropriate. Despite the impropriety
of the communication in this case, plaintiff accepted defendant’s offer of judgment---all
but concluding the litigation---and plaintiff did not suffer any prejudice. The court
concludes that Mr. Barton’s conduct does not warrant disqualification.
Plaintiff next argues that Mr. Barton should be disqualified due to a conflict of
interest. Plaintiff alleges that Mr. Barton represents her in a class action he filed in
state court against her current attorneys. Mack v. The Eason Law Firm, LLC, No. 1322CC9332. She argues that Rule 4-1.7 of the Missouri Rules of Professional Conduct
prohibits Mr. Barton from representing the defendants in this case.
Rule 4-1.7(a) prohibits a lawyer from representing a client when the
representation “involves a concurrent conflict of interest,” which exists when the
representation of one client is directly adverse to the interests of another client or
when 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 . . .” Mo.S.Ct.R. 41.7(a). Relevant to the issues here, Comment 25 to Rule 4-1.7 provides:
When a lawyer represents or seeks to represent a class of plaintiffs or
defendants in a class-action lawsuit, unnamed members of the class are
ordinarily not considered to be clients of the lawyer for purposes of
applying Rule 1.7(a)(1). Thus, the lawyer does not typically need to get
the consent of such a person before representing a client suing the
person in an unrelated matter.
Cmt. 25, Mo. S. Ct. R. 4-1.7 (emphasis added).
No class has been certified in the Mack case and, thus, Mr. Barton in not
plaintiff’s lawyer in that case. Mr. Barton does not have a conflict of interest arising
from the Mack litigation.

See Hopper v. Consumer Adjustment Co., Inc., No.

4:13CV1840 (RWS) Memorandum and Order (E.D. Mo. Oct. 18, 2003) (denying motion
to disqualify).
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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to disqualify [Doc. #6] is
denied.
IT IS FURTHER ORDERED that plaintiff’s motion for ruling [Doc. #7] is moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 25th day of October, 2013.

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