Kitchin et al v. Bridgeton Landfill, LLC

Filing 138

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants' Motion to Disqualify James Clayborne and the Law Firm of Clayborne & Wagner LLP in their Representation of Plaintiffs 107 is GRANTED. The Clerk of Court shall make the appropriate entry on the docket of this case removing attorney James F. Clayborne, Jr., as counsel of record for plaintiffs. ; (Attorney James F. Clayborne, Jr terminated.) Signed by District Judge Catherine D. Perry on 09/28/2022. (ANP)

Case: 4:18-cv-00672-CDP Doc. #: 138 Filed: 09/28/22 Page: 1 of 10 PageID #: 1581

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN C. KITCHIN, JR., et al.,
on behalf of themselves and all others
similarly situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
BRIDGETON LANDFILL, LLC,
)
et al.,
)
)
Defendants;
)
_________________________________ )
)
BRIDGETON LANDFILL, LLC,
)
)
Third-Party Plaintiff,
)
)
v.
)
)
COTTER CORPORATION, N.S.L.,
)
)
Third-Party Defendant.
)

No. 4:18 CV 672 CDP

MEMORANDUM AND ORDER
This matter is before the Court on defendants Bridgeton Landfill, LLC and
Republic Services, Inc.’s motion to disqualify attorney James F. Clayborne, Jr. and
his law firm of Clayborne & Wagner, LLP, in their representation of plaintiffs in
this action. The motion to disqualify arises from plaintiffs’ recent retention of
Clayborne, who previously represented defendants in 2013. For the reasons that
follow, I will grant the motion to disqualify.

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Background
Plaintiffs John C. Kitchin, Jr., North West Auto Body Company, and Mary
Menke bring this putative class action seeking damages and injunctive relief for
radioactive contamination of their respective properties allegedly caused by
neighboring West Lake Landfill, located in North St. Louis County, Missouri.
Plaintiffs assert that their property has been damaged by soil, dust, and air
contamination from improper generation, handling, storage, and disposal of
radioactive materials by four corporate defendants who are owners and operators
of the Landfill. Bridgeton Landfill, as an owner, and Republic Services, as an
operator, are among the defendants.
More than 46,000 tons of radioactive wastes at the center of this litigation
were mixed with soil and deposited at West Lake Landfill in 1973 for use as daily
cover for the Landfill. Plaintiffs allege that about 15 acres of the Landfill are filled
with radioactive wastes at a depth of up to 20 feet, and that the radioactive material
has contaminated soil, water, and air, resulting in the contamination of surrounding
communities where their properties are located. Plaintiffs also allege that they are
at increased risk of radioactive exposure by, inter alia, defendants’ installation of
an inadequate leachate collection system that resulted in spills, releases, and leaks
that contributed to the groundwater and surface water contamination; and failure to
control a subsurface fire at the Landfill, which could result in increased leachate
production from large amounts of steam that could further move contaminants and
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radioactive materials into the groundwater.
Plaintiffs filed this action in State court in April 2018, after which
defendants removed the case to this Court invoking several bases of Federal
subject-matter jurisdiction. The case is presently stayed pending the United States
Supreme Court’s decision on a petition for writ of certiorari filed in a separate but
related case.
In 2013, attorney Clayborne represented defendants Bridgeton Landfill and
Republic Services for the purpose of facilitating negotiations between them and a
water treatment facility in Illinois, the Illinois Environmental Protection Agency,
and the City of Sauget, Illinois, relating to defendants’ desired resumption of its
business relationship with the water treatment facility. The facility had earlier
ceased accepting leachate discharge from the Bridgeton Landfill because of alleged
excessive hazardous waste contained therein. During the course of this
representation, defendants shared confidential information and documents with
Clayborne to assist in his efforts to arrange negotiations between the parties.
On June 1, 2022, Clayborne entered his appearance in this action on behalf
of plaintiffs. Plaintiffs aver that they retained Clayborne to “participat[e] on their
behalf in any negotiations that can be scheduled” while this action is stayed. (ECF
115-1.) Defendants Bridgeton Landfill and Republic Services move to disqualify
Clayborne, arguing that his current representation is substantially related to the
matter on which he represented defendants in 2013 wherefrom he gained
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“knowledge of Defendants’ history with the regulatory agencies and negotiation
strategies surrounding leachate disposal issues at the landfill” and obtained
relevant, confidential information regarding inter alia “the strategy to resolve
issues related to the leachate issues that the landfill was facing during the very
period that Plaintiffs allege that leachate volume and leachate management
contributed to their harm.” (ECF 125-1 at pp. 2-3 n.3, p. 6.) Defendants also seek
to impute Clayborne’s disqualifying conflict to his law firm.
Because Clayborne disputed defendants’ factual averments regarding the
extent of his prior representation, could neither confirm nor deny what documents
he received during that representation, and could not recall the extent to which he
reviewed such documents, I ordered defendants to submit to the Court for in
camera review the relevant privileged documents and communications shared with
Clayborne during his prior representation. Upon review of the documents and
communications, I will grant defendants’ motion to disqualify.
Discussion
“The decision to grant or deny a motion to disqualify an attorney rests in the
discretion of the district court[.]” Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1154
(8th Cir. 1999) (internal quotation marks and citation omitted). While district
courts are generally “encourage[d] . . . to strictly enforce the Code of Professional
Responsibility,” Central Milk Producers Co-op. v. Sentry Food Stores, Inc., 573
F.2d 988, 993 (8th Cir. 1978), motions to disqualify are “subjected to particular
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scrutiny” because of the potential for abuse by opposing counsel. Macheca
Transp. Co. v. Philadelphia Indem. Ins. Co., 463 F.3d 827, 833 (8th Cir. 2006)
(internal quotation marks and citations omitted). The party moving for
disqualification bears the burden of showing that continuing representation would
be impermissible. See A.J. by L.B. v. Kierst, 56 F.3d 849, 859 (8th Cir. 1995).
“However, because courts also have the duty to maintain public confidence in the
legal profession and to ensure the integrity of judicial proceedings, any legitimate
doubts must be resolved in favor of disqualification.” Process Controls Int’l, Inc.
v. Emerson Process Mgmt., No. 4:10CV645 CDP, 2011 WL 1791714, at *4 (E.D.
Mo. May 10, 2011) (citing Coffelt v. Shell, 577 F.2d 30, 32 (8th Cir. 1978); Olson
v. Snap Prods., Inc., 183 F.R.D. 539, 542 (D. Minn. 1998)).
This Court has adopted the Missouri Supreme Court’s Rules of Professional
Conduct. See E.D. Mo. L.R. 12.02. Two rules are relevant here. Rule 4-1.9(a)
governs the duties an attorney owes to former clients:
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.
Rule 4-1.10(a) governs the imputation of an attorney’s conflict to his law firm:
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 4-1.7 or 4-1.9[.]
Plaintiffs raise no argument against disqualifying Clayborne’s law firm under Rule
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4-1.10(a) in the event I determine that Rule 4-1.9(a) bars Clayborne from
representing them in this action. Accordingly, I focus on Rule 4-1.9(a).
Rule 4-1.9(a) is “prophylactic, aimed at ‘prevent[ing] even the potential that
a former client’s confidences and secrets may be used against him.’” Zerger &
Mauer LLP v. City of Greenwood, 751 F.3d 928, 932 (8th Cir. 2014) (quoting In re
Carey, 89 S.W.3d 477, 493 (Mo. banc 2002)) (alteration in Zerger & Mauer). The
Rule “does not require the former client to show that actual confidences were
disclosed.” In re Carey, 89 S.W.3d at 494 (internal quotation marks and citation
omitted). Rather, the “primary concern is the possibility, or appearance of the
possibility, that the attorney may have received confidential information during the
prior representation.” Zerger & Mauer, 751 F.3d at 932 (internal quotation marks
and citation omitted). I must determine whether confidential information acquired
in the course of representing the former client is relevant to the issues raised in the
current litigation. In re Carey, 89 S.W.3d at 494.
To establish a conflict of interest under Rule 4-1.9(a), a movant must prove:
“(1) the attorney had a former attorney-client relationship with the movant; (2) the
interests of the attorney’s current client are materially adverse to the movant’s
interests; and (3) the current representation involves the same or a substantially
related matter as the attorney’s former representation of the movant.” Zerger &
Mauer, 751 F.3d at 932 (internal quotation marks and citation omitted).
There is no dispute with respect to the first and second elements. Clayborne
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had an attorney-client relationship with defendants Bridgeton Landfill and
Republic Services in 2013, and the plaintiffs’ interests in this action are materially
adverse to both Bridgeton Landfill’s and Republic Services’ interests. Regarding
the third element, Missouri courts have adopted a non-exhaustive list of six factors
to consider in determining whether a lawyer’s current representation is
substantially related to the former representation:
(1) the case involved the same client and the matters or transactions in
question are relatively interconnected or reveal the client’s pattern of
conduct; (2) the lawyer had interviewed a witness who was key in
both cases; (3) the lawyer's knowledge of a former client’s negotiation
strategies was relevant; (4) the commonality of witnesses, legal
theories, business practices of the client, and location of the client
were significant; (5) a common subject matter, issues and causes of
action existed; and (6) information existed on the former client’s
ability to satisfy debts and its possible defense and negotiation
strategies.
In re Carey, 89 S.W.3d at 494 (citation omitted). “In some cases, one factor, if
significant enough, can establish that the subsequent case is substantially related.”
Id.
As set out above, defendants Bridgeton Landfill and Republic Services
retained Clayborne in 2013 for the primary purpose of facilitating negotiations
with private and public entities to reestablish a business relationship that went
awry because of the presence of hazardous material in leachate discharge from
defendants’ site. During the course of this representation, defendants shared
confidential information with Clayborne, including the motivations behind their

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specific negotiation tactics and strategies – especially the “why” of their desired
result, the “how” to get there, and the particular circumstances of their leachate
discharge processes that drove their strategies. They asked and encouraged
Clayborne to engage in certain communications and to convey certain information
to the respective entities with whom they were negotiating, and Clayborne offered
strategies to assist in the effort to achieve defendants’ desired result.
As to Clayborne’s current representation, plaintiffs admit in response to
defendants’ motion to disqualify that they retained Clayborne to participate on
their behalf in any negotiations that can be scheduled. While the 2013
representation did not involve the same transactions, witnesses, or causes of action
as in this litigation, it nevertheless exposed Clayborne to and brought him into
defendants’ intimate negotiation strategies based in part upon the Landfill’s
leachate disposal systems in place at the time. Given that that was the central
purpose of his representing defendants then and is the central purpose of his
representing their adversaries now, the relationship between the two
representations is significant enough for me to find that the nature and purpose of
Clayborne’s current representation of plaintiffs is substantially related to his 2013
representation of defendants. Whether Clayborne specifically remembers the
documents or confidences disclosed is of no instance. Avoiding the risk of even
inadvertent disclosure of confidential information helps to ensure the integrity of
these judicial proceedings and maintain public confidence in the legal profession.
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Cf. State of Ark. v. Dean Foods Prods. Co., Inc., 605 F.2d 380, 387 (8th Cir. 1979)
(recognizing risk of attorney and staff inadvertently proceeding along lines dictated
or influenced by confidential information), overruled on other grounds by In re
Multi-Piece Rim Prods. Liab. Litig., 612 F.2d 377 (8th Cir. 1980); In re Carey, 89
S.W.3d at 496 (“Every lawyer owes a solemn duty . . . to strive to avoid not only
professional impropriety but also the appearance of impropriety.”). I will therefore
disqualify Clayborne from representing plaintiffs here.
Given that Clayborne is prohibited from representing plaintiffs in this action
under Rule 4-1.9(a), a literal reading of Rule 4-1.10(a) precludes any lawyer
associated in his law firm from representing plaintiffs as well. The “premise” of
Rule 4-1.10(a) is “that a firm of lawyers is essentially one lawyer for purposes of
the rules governing loyalty to the client or . . . that each lawyer is vicariously
bound by the obligation of loyalty owed by each lawyer with whom the lawyer is
associated.” Rule 4-1.10 cmt. [2]. As noted above, plaintiffs raise no argument
disputing application of Rule 4-1.10(a), and there is nothing before the Court
persuading me that the strictures of the Rule should not apply. I will therefore
disqualify the law firm of Clayborne & Wagner, LLP, from representing plaintiffs
in this action.
I do not lightly enter this decision to partially deprive plaintiffs of their
choice of counsel. But to maintain public confidence in the legal profession and to
ensure the integrity of judicial proceedings, I must grant defendants’ motion to
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disqualify. In making this determination, I have considered that no less than nine
other attorneys from at least five other law firms represent plaintiffs in this action;
many have done so from the case’s inception. Moreover, this case is presently
stayed. If plaintiffs wish to obtain new counsel for the special purpose of engaging
in negotiations as they have represented, the present stay in the proceedings should
allow them sufficient time to do so.
Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion to Disqualify James
Clayborne and the Law Firm of Clayborne & Wagner LLP in their Representation
of Plaintiffs [107] is GRANTED. The Clerk of Court shall make the appropriate
entry on the docket of this case removing attorney James F. Clayborne, Jr., as
counsel of record for plaintiffs.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 28th day of September, 2022.

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