DeCrane v. Eckart et al

Filing 108

Opinion and Order. The Court finds the Magistrate Judge's Order (Related doc # 84 ) denying disqualification of Defendants' counsel, the Zashin & Rich Law Firm and the City of Cleveland Department of Law, was not clearly erroneous nor contrary to law and is upheld. Judge Christopher A. Boyko on 1/28/2019. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SEAN DECRANE,
Plaintiff,
vs.
EDWARD J. ECKART, et al.,
Defendants.

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CASE NO. 1:16CV2647
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon Plaintiff Sean DeCrane’s Objection (ECF
DKT #96) to the Magistrate Judge’s Order Denying his Motion to Disqualify the Zashin &
Rich Law Firm and Cleveland Law Department Lawyers. For the following reasons, the
Order (ECF DKT #84) denying disqualification of Defendants’ counsel is upheld.
I. BACKGROUND
Plaintiff is a retired City of Cleveland Division of Fire Battalion Chief. He alleges
that Assistant Safety Director Edward Eckart, along with James Votypka and Christopher
Chumita, repeatedly retaliated against him based on the mistaken belief that Plaintiff
disclosed to a reporter that a previous fire chief lacked the required continuing education to

maintain his professional certification. According to Plaintiff’s allegations, Eckart conducted
his retaliatory campaign against Plaintiff, in part, through former Chief Patrick Kelly.
Plaintiff was the head of the City of Cleveland’s Fire Training Academy; but Eckart
threatened to outsource fire training to Tri-C. Kelly testified, however, that “Eckart agreed to
continue operating the Fire Training Academy in-house, but only if [Kelly] removed
[DeCrane] from his position as the head of the academy.” (First Declaration of Patrick Kelly,
ECF DKT #96, Exhibit 1).
At his deposition, Eckart denied that there was such an agreement between himself
and Kelly; and if Kelly testified as such, he would be lying. (Eckart Deposition, ECF DKT
96, Exhibit 2).
Kelly executed a second clarifying declaration after refreshing his recollection and
altered his testimony about removing Plaintiff from his position at the Fire Training
Academy.
Plaintiff’s counsel informed Kelly that Plaintiff was contemplating state court
litigation against Kelly “based on his perjurious statements” and advised him to retain
counsel. Plaintiff also suggested that a Third Amended Complaint may contain allegations
and claims against Kelly. Defendants’ lead counsel, Jon Dileno, announced that his firm
would be representing Kelly.
Plaintiff filed a Motion (ECF DKT #67) to Disqualify Zashin & Rich based upon what
Plaintiff describes as serious and unavoidable conflicts created by that firm’s representation
of both Eckart and Kelly.
The Motion was referred to the Magistrate Judge for disposition. The Motion was

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supplemented to also seek the disqualification of the City of Cleveland Law Department. On
April 27, 2018, the Magistrate Judge denied Plaintiff’s Motion to Disqualify.
The Magistrate Judge considered Kelly’s Second Declaration reciting that there was
no deal with Eckart to remove Plaintiff from the Academy and that he was unaware of any
“scheme” to retaliate against Plaintiff by filing administrative charges against him. The
Magistrate Judge notes that no state court action, civil or criminal, has been brought against
Kelly to date. Further, Kelly has not been added by Plaintiff as a Defendant in the captioned
case; so, no cross-claims between Defendants Eckart and Kelly can be anticipated. Lastly,
both Kelly and Eckart have executed written informed consents to be represented by Zashin
& Rich, knowingly swearing that their interests are aligned as to Plaintiff’s claims in this
lawsuit and waiving any conflict of interest.
(ECF DKT #77-7 & #77-9).
II. LAW AND ANALYSIS
Standard of Review
Appeal of Non-Dispositive Matters
Local Rule 72.3 recites:
Any party may appeal from a Magistrate Judge’s order determining a motion
or matter made pursuant to Fed. R. Civ. P. 72(a) within fourteen (14) days after
service of the Magistrate Judge’s order. Such party shall file with the Clerk of
Court, and serve on the Magistrate Judge and all parties, a written statement of
appeal which shall specifically designate the order, or part thereof, appealed
from and the basis for any objection thereto. The District Judge to whom the
case was assigned shall consider the appeal and shall set aside any portion of
the Magistrate Judge’s order found to be clearly erroneous or contrary to law.
The District Judge may also consider sua sponte any matter determined by a
Magistrate Judge under this Rule.
A Magistrate Judge’s finding is clearly erroneous when the District Judge, upon
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review of the evidence, is left with the “definite and firm conviction that a mistake has been
committed.” See JGR, Inc. v. Thomasville Furniture Indus., Inc., Case No. 1:96-CV-1780,
2006 WL 456479, at *1 (N.D. Ohio Feb. 24, 2006) (quoting Heights Cmty. Congress v.
Hilltop Reality, Inc., 774 F.2d 135, 140 (6th Cir. 1985)).
When determining whether a Magistrate Judge’s decision is contrary to law, the
District Court applies an abuse of discretion standard. JGR, Inc., 2006 WL 456479, at *1.
Disqualification of counsel
The ethical standards prescribed by the Ohio Rules of Professional Conduct govern all
attorneys practicing before this Court. “Attorneys admitted to practice in this Court shall be
bound by the ethical standards of the Code of Professional Responsibility adopted by the
Supreme Court of the State of Ohio, so far as they are not inconsistent with federal law.”
Local Rule 83.7(a), U.S. District Court, Northern District of Ohio; see also Local Rule
83.5(b) & (f), U.S. District Court, Northern District of Ohio.
Disqualification is one remedy the Court may employ in order to ensure the ethical
practice of law. “The Court retains inherent authority to police the ethical conduct of the
lawyers who appear before it and to uphold the ethical norms embodied in the Code of
Professional Conduct.” United States v. Miller, 624 F.2d 1198, 1201 (3rd Cir.1980). When
considering whether to disqualify counsel “courts must be sensitive to the competing public
interests of requiring professional conduct by an attorney and of permitting a party to retain
the counsel of his choice.” Hamrick v. Union Twp., Ohio, 81 F.Supp. 2d 876, 878 (S.D. Ohio
2000).
Because “disqualification is a drastic measure ... a violation of the Code of

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Professional Responsibility alone should not result in a disqualification, unless
disqualification is found to be absolutely necessary.” Centimark Corp. v. Brown Sprinkler
Serv., Inc., 85 Ohio App.3d 485, 488-489 (11th Dist.1993); accord Cliffs Sales Co. v. Am. S.S.
Co., No. 1:07-CV-485, 2007 WL 2907323, at *2 (N.D.Ohio Oct.4, 2007) (“a violation of the
rules of professional responsibility does not automatically necessitate disqualification of an
attorney”). Disqualification is appropriate, “only when there is a ‘reasonable possibility that
some specifically identifiable impropriety’ actually occurred and, in light of the interest
underlying the standards of ethics, the social need for ethical practice outweighs the party’s
right to counsel of his own choice.” Kitchen v. Aristech Chemical, 769 F.Supp. 254, 257 (S.D.
Ohio 1991).
“Motions to disqualify are viewed with disfavor and disqualification is considered a
drastic measure which courts should hesitate to impose except when absolutely necessary.”
Valley–Vulcan Mold Co. v. Ampco–Pittsburgh Corp., 237 B.R. 322, 337 (6th Cir. BAP 1999),
aff'd 5 F.App’x. 396 (6th Cir.2001).
The Court is not firmly convinced that any mistake has been committed by the
Magistrate Judge in denying disqualification of defense counsel. Moreover, the Magistrate
Judge did not abuse his discretion.
In view of former Chief Kelly’s second declaration, the absence of any state court
civil or criminal action and the sworn consents from Eckart and Kelly to joint representation,
the Court does not find any ‘reasonable possibility that some specifically identifiable
impropriety’ actually has occurred or will.
The Court, all counsel and the parties shall remain vigilant in monitoring the

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possibility of a disqualifying conflict of interest occurring through the culmination of this
litigation. See Gordon v. Norman, 788 F.2d 1194, 1198 (6th Cir. 1986).
III. CONCLUSION
Considering Plaintiff’s Objections and applying the above legal principles under the
authority of Local Rule 72.3, the Court finds that the Magistrate Judge’s Order was not
clearly erroneous nor contrary to law. Therefore, the Magistrate Judge’s Order (ECF DKT
#84) denying disqualification of Defendants’ counsel, the Zashin & Rich Law Firm and the
City of Cleveland Department of Law, is upheld.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: January 28, 2019

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