Jackson v. St. Louis Public Schools

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Disqualify 21 is DENIED. Signed by Magistrate Judge Shirley Padmore Mensah on 4/24/2018. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KERI JACKSON,
Plaintiff,
v.

ST. LOUIS PUBLIC SCHOOLS,

Respondent.

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Case No. 4:17-cv-2696-SPM

MEMORANDUM AND ORDER
This case is before the undersigned on Plaintiff’s Motion to Disqualify (Doc. 21), in which
Plaintiff asks the Court to disqualify the law firm of Mickes O’Toole, LLC and the law firm of
Crotzer & Ormsby, and their employees and associated counsel, from representing and/or assisting
the defendant in this action, St. Louis Public Schools, and from representing Ferguson-Florissant
School District in Plaintiff’s separate action against that school district, Jackson v. FergusonFlorissant School District, No. 4:16-CV-01412-SNLJ (the “Ferguson-Florissant case”). To the
extent that Plaintiff’s motion is directed toward whether to disqualify particular attorneys from
representing a defendant in the Ferguson-Florissant case, the motion is not properly before the
undersigned and must be addressed through a motion filed in the Ferguson-Florissant case. 1 To
the extent that Plaintiff’s motion is directed toward whether to disqualify Crotzer & Ormsby from
representing the defendant in the instant case, the motion will be denied as not ripe for ruling,

On the same date she filed the instant motion, Plaintiff filed substantially the same motion in
the Ferguson-Florissant case.
1

because no attorneys from Crotzer & Ormsby have attempted to represent the defendant in the
instant case. To the extent that Plaintiff’s motion is directed toward whether to disqualify Mickes
O’Toole, LLC from representing Defendant St. Louis Public Schools in the instant case, the Court
will address the motion below. Defendant St. Louis Public Schools has filed an opposition to the
motion. (Doc. 22).
Defendant is currently represented in this action by several attorneys at Mickes O’Toole:
Brittany LeAnn Newell, Grant D. Wiens, and Vincent D. Reese. Kathryn Forster recently joined
the firm of Mickes O’Toole. Ms. Forster previously worked at Crotzer & Ormsby, where she
represented the Ferguson-Florissant School District in the Ferguson-Florissant case.
Plaintiff first argues that Ms. Forster’s move from Crotzer & Ormsby to Mickes O’Toole
creates a conflict of interest that prevents Mickes O’Toole from representing Defendant in the
instant case. Plaintiff relies on Missouri Rule of Professional Conduct 4-1.10(b), which states:
(b)

When a lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests materially
adverse to those of a client represented by the formerly associated lawyer
and not currently represented by the firm, unless:
(1)

the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and

(2)

any lawyer remaining in the firm has information protected by Rules
4-1.6 and 4-1.9(c) that is material to the matter.

Plaintiff asserts that the instant case is the same or substantially related to the Ferguson-Florissant
case, so Mickes O’Toole cannot represent Defendant in this action. Plaintiff’s argument is without
merit. Rule 4-1.10(b) governs the question of what clients a firm may represent after an attorney
leaves that firm. Thus, it might be relevant to what clients Ms. Forster’s former firm (Crotzer &
Ormsby) could represent. However, it is not in way relevant to which clients Ms. Forster’s new

firm (Mickes O’Toole) can represent. Thus, Rule 4-1.10(b) does not provide a basis for
disqualifying Mickes O’Toole.
Plaintiff also suggests that Mickes O’Toole should be disqualified because of the
possibility that Ms. Forster could share information and strategy she learned in the FergusonFlorissant case with counsel for St. Louis Public Schools. However, even in light of this possibility,
Plaintiff does not explain how Mickes O’Toole’s continued representation of St. Louis Public
Schools would violate any particular rule of professional conduct or create any conflict of interest.
Plaintiff next argues that her motion to disqualify is supported by Rule 4-3.3(a)(1), which
states:
(a)

A lawyer shall not knowingly:
(1)

make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the
tribunal by the lawyer . . .

Plaintiff suggests that Mickes O’Toole should be disqualified because Ms. Forster made false
statements pertaining to the Ferguson-Florissant case. This argument is without merit. Rule 43.3(a)(1) does not address the question of whether an attorney can represent a client. Moreover,
even if it did, Ms. Forster is not representing any party in the present action. Plaintiff offers no
authority to suggest that false statements made by an attorney in the past require disqualification
of the attorney’s entire firm.
Finally, Plaintiff suggests that because Ms. Forster was the lead attorney in the FergusonFlorissant case, she is likely to be called as a necessary witness in that case or in the instant case.
Rule 4-3.7 states, in relevant part,
(a)

A lawyer shall not act as advocate at a trial in which the lawyer is likely to
be a necessary witness unless:

(1)
(2)
(3)

(b)

the testimony relates to an uncontested issue;
the testimony relates to the nature and value of legal services
rendered in the case; or
disqualification of the lawyer would work substantial hardship on
the client.

A lawyer may act as advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness unless precluded from doing
so by Rule 4-1.7 or Rule 4-1.9.

Again, Plaintiff’s argument is without merit. First, Rule 4-3.7(a) is directed toward an individual
attorney, not the law firm as a whole. Ms. Forster is not representing any party in this matter, so
this rule is irrelevant to the instant motion. Moreover, Plaintiff has not shown any basis for a
finding that Ms. Forster is likely to be a “necessary witness” in this case.
For all of the above reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Disqualify (Doc. 21) is DENIED.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 24th day of April, 2018.