Spring v. The Board of Trustees of Cape Fear Community College

Filing 67

ORDER denying 13 Motion to Disqualify Counsel.. Signed by District Judge Terrence W. Boyle on 9/18/2015. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:15-CV-84-BO

TEDD. SPRING,

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Plaintiff,

v.

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THE BOARD OF TRUSTEES OF CAPE FEAR
COMMUNITY COLLEGE, et al.,

ORDER

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Defendants.

This matter is before the Court on plaintiffs motion to disqualify the law firm of Ward
and Smith, P.A. (Ward and Smith) from representing defendant Board of Trustees of Cape Fear
Community College (the Board). [DE 13]. A hearing was held before the undersigned on
September 3, 2015, in Raleigh, North Carolina, and the matter is ripe for ruling. For the
following reasons, plaintiffs motion is DENIED.
BACKGROUND
Plaintiff initiated this action on March 27, 2015, by filing a complaint in New Hanover
County Superior Court naming the Board as defendant. The complaint alleging a state law claim
for breach of the employment agreement between plaintiff and the Board, a federal claim under
42 U.S.C. § 1983 for violation of plaintiffs constitutionally protected property and liberty
interests in his employment; and a claim for attorney's fees pursuant to 42 U.S.C. § 1988. The
Board removed the case to this Court on April 29, 2015. John Martin and William Austin of
Ward and Smith filed notices of appearance on behalf of the Board that same day. Subsequently,
Mr. Spring amended his complaint to include as defendants the individual members of the Board,
who are also represented by Ward and Smith.

Mr. Spring was the president of Cape Fear Community College (the College) from
approximately August 28, 2012, until his resignation on March 4, 2015. Throughout the course
of plaintiffs tenure as president, Ward and Smith served as general counsel to the College. As
president, plaintiff frequently consulted with, received advice from, and provided confidential
information to Ward and Smith, which was acting in its capacity as the College's attorney.
Plaintiff alleges that he dealt most frequently with attorney James W. Norment, whom Ward and
Smith assigned to handle the College's legal matters. Mr. Norment has provided legal services to
the Board and the College since approximately 2002. It is undisputed that Mr. Norment does not
handle personal legal issues for the Board members or the College's staff. Plaintiff did not
discuss his employment situation with Mr. Norment before or after the January 22, 2015,
meeting at which the Board gave him the opportunity to resign. Mr. Norment did meet with
plaintiff and his wife to discuss plaintiffs severance package, at which time plaintiff was advised
to consult with his personal counsel concerning the severance agreement.
Ward and Smith currently represents the Board and its members. Plaintiff contends that
Mr. Norment is an "individual likely to have discoverable information" in this matter pursuant to
Rule 26(a) of the Federal Rules of Civil Procedure, expects to take Mr. Norment's deposition,
and plans to call him as a witness at trial. On these bases, Mr. Spring has moved to disqualify
Ward and Smith from representing the Board.
ANALYSIS
Plaintiff argues that Ward and Smith must be disqualified because: 1) conflicts of interest
exist between its representation of defendants and its purported prior representation of plaintiff
as the College president and 2) Mr. Norment is a necessary trial witness. In support of his
arguments, plaintiff relies on three North Carolina Rules of Professional Conduct (RPC): 1. 9,

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which deals with duties to former clients; 1.13, which deals with organizations as clients; and
3.7, which deals with lawyers as witnesses.
The question of whether counsel should be disqualified is a matter within the discretion
of the Court. United States v. Williams, 81F.3d1321, 1324 (4th Cir. 1996). It requires that the
Court balance "(l) the right of a party to retain counsel of his choice; and (2) the substantial
hardship which might result from disqualification as against the public perception of and the
public trust in the judicial system." Plant Genetic Systems, NV v. Ciba Seeds, 933 F.Supp. 514,
517 (M.D.N.C. May 24, 1996). The "drastic nature of disqualification requires that courts ovoid
overly-mechanical adherence to disciplinary canons at the expense of litigants' rights to freely
choose their counsel; and that they always remain mindful of the opposing possibility of misuse
of disqualification motions for strategic reasons." Shaffer v. Farm Fresh, Inc., 966 F.2d 142,
145-46 (4th Cir. 1992).
Mr. Spring first argues that he was a client of Ward and Smith, and "[a] lawyer who has
formerly represented a client in a matter shall not thereafter represent another person in the same
or 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." RPC l.9(a). To succeed on his motion to disqualify pursuant to a conflict of interest,
plaintiff must demonstrate that "(I) an attorney-client relationship existed with the alleged
former client; and (2) the former representation and the current controversy [are] substantially
related." Ciba Seeds, 933 F.Supp. at 517.
Plaintiff cannot demonstrate that he was in an attorney-client relationship with Ward and
Smith. Rule l .13(a) provides that "[a] lawyer employed or retained by an organization represents
the organization acting through its duly authorized constituents." A lawyer who represents a

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corporation or other organization does not, "by virtue of that representation, necessarily represent
any constituent or affiliated organization." RPC 1.7, cmt. 34. Rather, whether an attorney for an
organization also represents the organization's constituent depends on whether an attorney-client
relationship can "reasonably be inferred" from the parties' conduct; it follows that the
constituent's belief that he was personally represented by the organization's attorney must be
reasonable. Classic Coffee Concepts, Inc. v. Anderson, 2006 NCBC 21, *7 (Dec. 1. 2006).
Here, plaintiff cannot demonstrate that any belief that he was personally represented by
corporate counsel is reasonable. He has not argued or produced evidence indicating that he
signed any type of engagement agreement, was billed or paid for services, or received any
personal advice on legal matters. Indeed, Mr. Norment told plaintiff to consult with an outside
attorney regarding personal claims. [DE 18-1]. Mr. Spring'ss complaint refers to Mr. Norment
as "the College's attorney" and alleges that he was not given the opportunity to "consult with an
attorney" before being "forced to make a decision" as to whether to resign. [DE 10 at~~ 72, 75].
Given that Mr. Norment was present at the meeting, Mr. Spring would not have needed time to
seek advice of counsel had he believed that he was represented by Mr. Norment. Plaintiff cannot
demonstrate that he was in an attorney-client relationship with Ward and Smith. Because Mr.
Spring is not a former client of Ward and Smith, Ward and Smith owes him no duty as a former
client. Correspondingly, there is no conflict of interest under RPC 1. 9 and plaintiff's motion to
disqualify on the grounds of prior representation fails.
Mr. Spring also argues that Ward and Smith cannot represent defendant because Mr.
Norment is a necessary witness. Rule 3.7(b) provides that "[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 1.7 or Rule 1.9." The rationale behind the rule is that "the

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tribunal is not likely to be misled when a lawyer acts as advocate in a trial in which another
lawyer in the lawyer's firm will testify as a necessary witness." RPC 3.7(b), cmt. 5. The rule
carves out an exception for conflicts of interest addressed in Rules 1. 7 and 1. 9. Id. As set forth
supra, no attorney-client relationship ever existed between Mr. Norment and Mr. Spring or Ward

and Smith and Mr. Spring. Accordingly, there can be no conflict of interest between those
parties, and Rule 3.7(b) clearly counsels that attorneys at Ward and Smith other than Mr.
Norment may represent defendants at trial.
In sum, the Court is not convinced that allowing Ward and Smith to represent the Board
in this case would have any negative effect whatsoever on the public perception of or public trust
in the judicial system. Assuming arguendo that some minimal negative public perception might
result, it clearly is outweighed by the right of defendants to retain counsel of their choice. In its
discretion, therefore, the Court finds that plaintiff has not proven that Ward and Smith should be
disqualified from representing defendants in this lawsuit and denies plaintiff's motion.
CONCLUSION
For the foregoing reasons, plaintiff's motion to disqualify counsel [DE 13] is DENIED.

SO ORDERED, this __j_fday of September, 2015.

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UNITED STATES DISTRICT JUDGE

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