TERA II, LLC et al v. Rice Drilling D, LLC et al

Filing 641

ORDER denying 537 Motion to Disqualify Counsel; denying as moot 578 Motion for Leave to File. Signed by Chief Judge Algenon L. Marbley on 2/5/2024. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERA II, LLC, et al.,

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Plaintiffs,
v.
RICE DRILLING D, LLC, et al.,
Defendants.

Case No. 2:19-cv-2221
Chief Judge Algenon L. Marbley
Magistrate Judge Jolson

OPINION & ORDER
This matter is before this Court on Defendant’s Motion to Disqualify Plaintiffs’ Counsel
(ECF No. 537). Regarding interested party Bailey & Glasser, LLP’s Motion for Leave to File
Attached Surresponse (ECF No. 578), the surresponse was considered in the context of
Defendant’s Motion and is therefore DENIED AS MOOT. For the reasons set forth below,
Defendant’s Motion (ECF No. 537) is DENIED.
I.

BACKGROUND

A recitation of the factual background of this case was fully set out in this Court’s June 28,
2023, Opinion and Order. (ECF No. 490). Thus, the Court adopts the factual background as set out
there. (Id.). In this particular matter, Defendant seeks to disqualify Plaintiffs’ counsel, Bailey &
Glasser, LLP (“B&G”) on the grounds that B&G employs one Mr. Bryant Bowman II, “a former
high-ranking landman with [Defendant’s parent company] EQT Production Company (“EQT”)
who was the liaison between the legal and land departments and routinely worked in privileged
settings for EQT’s inhouse and outside counsel and personally assisted with Rice’s legal defense
of this exact case.” (ECF No. 537 at 1).

II.

STANDARD OF REVIEW

Disqualification of counsel is “incidental to all courts, and is necessary for the preservation
of decorum, and for the respectability of the profession.” Nilavar v. Mercy Health System—
Western Ohio, 143 F. Supp. 2d 909, 912 (S.D. Ohio 2001). Motions to disqualify are, however,
subject to a heavy burden borne by the movant. Id. “Because litigants often make such motions for
tactical reasons, and because disqualification of counsel impinges on a party’s right to employ the
counsel of its choice, the moving party bears the burden of establishing the need for
disqualification.” Id.
III.

LAW & ANALYSIS

A law firm’s non-attorney employees are held to the same standards that govern attorneys
under the Ohio Rules of Professional Conduct. “The Court’s local rules incorporate the ethical
standards of the Ohio Rules of Professional Conduct.” S.D. Ohio Civ. R. 83.3(h). The Ohio Rules
of Professional Conduct require “a lawyer to make reasonable efforts to ensure that a nonlawyer
employee’s conduct is compatible with the professional obligations of the lawyer.” Toledo Bar
Ass’n v. Berling, 153 N.E.3d 83, 86–87 (Ohio 2020) (citing Ohio Prof. Cond. R. 5.3(b)). Here, as
a non-attorney employee of a law firm, Mr. Bowman is held to the same ethical standards as
attorneys.
The Sixth Circuit has held that a party seeking the disqualification must establish three
elements: that a past attorney-client relationship existed between the party seeking disqualification
and the attorney sought to be disqualified; that the subject matter of those relationships is or was
substantially related; and third, that the attorney acquired confidential information from the party
seeking disqualification. Dana Corp. v. Blue Cross & Blue Shield Mutual of Northern Ohio, 900
F.2d 882, 889 (6th Cir.1990).

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Here, a past attorney-client relationship existed between EQT – the party seeking
disqualification – and Mr. Bowman. He spent almost 20 years assisting EQT’s legal teams in
various disputes. (ECF No. 537 at 4). The subject matter is indeed substantially related, evinced
by the fact that Mr. Bowman assisted Defendant’s legal counsel in developing litigation strategy
for this case. (ECF No. 537 at 8). Finally, Mr. Bowman acquired confidential information,
including documents and lease files, relating to Defendant’s case. (Id.). While Defendant may be
able to establish these threshold elements, disqualification is not proper in this case.
As Plaintiff properly highlights, disqualification of a party’s choice of counsel is disruptive
to the litigation process and is generally disfavored. Gordon v. Dadente, No. 1:05 CV 2726, 2009
WL 2732827 (N.D. Ohio Aug. 26, 2009). When considering motions to disqualify, “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). Even if the movant establishes the threshold elements, an
attorney will avoid disqualification if they can rebut the presumption of disclosed confidences by
submitting evidence that the new firm erected and followed adequate and timely screens to rebut
evidence of exposure to confidential information. Green v. Toledo Hosp., 764 N.E.2d 979 (Ohio
2002).
Green is the only Ohio appellate case dealing directly with the imputation of alleged
conflicts to a law firm arising from a non-lawyer employee. Because our sister district courts rely
on Green, this Court will similarly consider t he Supreme Court of Ohio’s guidance. See, e.g.,
DeCrane v. Eckart, No. 1:16CV2647, 2019 WL 3213047, at *5 (N.D. Ohio July 17, 2019) (“The
Court will apply the Green construct in order to determine whether disqualification [of a nonlawyer] is appropriate.”); Ohio Trial Practice § 1:5 Attorney-client relationship—Disqualification

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of counsel for conflict (June 2023 ed.) (advising that courts should follow the three-part procedure
from Green “[i]n ruling on a motion to disqualify … adverse counsel’s entire firm because it
employs a non-lawyer employee who relocated from a firm that represented a litigant in the present
case”); 6 Ohio Jur. 3d Attorneys at Law § 169 (Nov. 2023 update) (same). (ECF No. 578-1 at 5).
Here, B&G timely screened Mr. Bowman from any involvement in this matter (ECF No.
553-1 at ⁋⁋ 14, 15, 19 and 20). He has not worked on this matter while at B&G or any other matter
in which EQT is directly or indirectly involved. Id. The Ohio Rules of Professional Conduct further
state that conflicts relative to non-attorneys like Mr. Bowman are not imputed to disqualify the
non-attorney’s firm if the firm screens the non-lawyer from participation in the matter:
[4] The rule in division (a) also does not prohibit representation by others in the law
firm where the person prohibited from involvement in a matter is a nonlawyer, such
as a paralegal or legal secretary. Nor does division (a) prohibit representation if the
lawyer is prohibited from acting because of events before the person became a
lawyer, for example, work that the person did while a law student. Such persons,
however, ordinarily must be screened from any personal participation in the matter
to avoid communication to others in the firm of confidential information that both
the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(l) and 5.3.
Ohio Prof. Cond. Rule 1.10(a), Comment 4. It is evident that any apparent conflict involving Mr.
Bowman and B&G has been appropriately dealt with.
Finally, the United States District Court for the Northern District of West Virginia has
previously denied EQT’s motion to disqualify B&G on the basis of Mr. Bowman’s employment,
the exact issue in this matter. McEvoy v. Diversified Energy Co. PLC, Civil Action No. 5:22-CV171, 2023 WL 6194949 (N.D.W.V. Feb. 22, 2023). That court noted that “[i]t would appear that
EQT is attempting to foreclose an employee that they terminated from securing any meaningful
employment in the oil & gas industry, by claiming that any employment could lead to the
confidential information being divulged or by claiming that the duty to consult constitutes a

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conflict.” Id. at *6. Given the clear answer to the exact issue before this Court, disqualification is
not warranted in this case.
IV.

CONCLUSION

Given the lack of support, the clear screening measures employed, and the preclusion of
the issue, this Court finds that Defendant’s motion is without merit. For the reasons stated above,
Defendant’s Motion is DENIED. (ECF No. 537). Interested party Bailey & Glasser, LLP’s Motion
for Leave to File Attached Surresponse (ECF No. 578) is DENIED AS MOOT.
IT IS SO ORDERED.
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ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
Dated: February 5, 2024

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