Prado v. Thomas et al

Filing 29

DECISION AND ORDER - Plaintiff's Renewed Motion to Disqualify "Attorneys Dawn Frisk and Jeffrey Charles Turner from representing multiple defendants in the present case due to potential conflicts of interest" (ECF No. 26) is DENIED. Signed by Magistrate Judge Michael R. Merz on 12/27/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GLENDA JACQUELINE PRADO,
Plaintiff,

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vs

:

Case No. 3:16-cv-306

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

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JEFFREY THOMAS, et al.,

Defendants.

:

DECISION AND ORDER

This case is before the Court on Plaintiff’s Renewed Motion to Disqualify “Attorneys
Dawn Frisk1 and Jeffrey Charles Turner from representing multiple defendants in the present
case due to potential conflicts of interest.” (ECF No. 26, PageID 131). Having given an example
of possible conflicts, Plaintiff asks the Court “to require Counsels for the Defendants to choose
their clients appropriately, demonstrate no actual or potential conflicts exist or provide
appropriate waivers or conduct a hearing on this matter.” Id.

With the exception of having

added the word “Renewed,” Plaintiffs’ Renewed Motion is a verbatim copy of their original
Motion. (Compare ECF No. 17 and 26). Defendants oppose the Renewed Motion (ECF No.

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In deciding Plaintiff’s first Motion to Disqualify, the Court advised Plaintiffis counsel that :”counsel’s correct
name is Dawn M. Frick.” (ECF No. 24, PageID 112). The initial mistake could perhaps be blamed on a
typographical mistake. Repeating the same mistake bespeaks failure to read what the Court has taken the trouble to
write and, given that it involves the name of another member of the bar, borders on incivility.

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28). Plaintiffs’ time to file a reply memorandum in support under S. D. Ohio Civ. R. 7.2 expired
December 19, 2016, and no reply has been filed.
Defendants’ opposed the original Motion to Disqualify on the basis that since they are all
sued in their official capacities, there was no conflict of interest (Memo in Opp., ECF No. 22).
Plaintiff responded that, rather than rely on the pleadings alone, the Sixth Circuit has adopted a
“course of the proceedings” test to determine whether individual defendants have actual
knowledge of their potential for individual liability (Reply, ECF No. 23, PageID 108, citing
Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003). Finding no judicial economy to leaving such a
critical matter ambiguous at that early stage of the proceedings, the Court ordered that Plaintiff
file an amended complaint plainly stating as to each Defendant the capacity or capacities in
which that Defendant is sued. The Amended Complaint names each Defendant in his or her
individual and official capacities (ECF No. 25).
There is no conflict of interest among the Defendants in their official capacities and no
need for disqualification of counsel as representing them in that capacity. As to their individual
capacities, Defendants point out that Plaintiff has pointed to no existing actual conflicts of
interest, but only to the possibility that such a conflict might arise.
The standard for disqualifying an attorney in federal litigation was summarized by Judge
Rice in Dynasty Apparel Indus. v. Rentz, 206 F.R.D. 596, 599 (S.D. Ohio 2001):
A motion to disqualify is the proper method for a party-litigant to
bring an issue of conflict of interest or the breach of an ethical duty
to the court's attention. Musicus v. Westinghouse Elec. Corp., 621
F.2d 742, 744 (5th Cir. 1980). Confronted with such a motion,
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. Kitchen v. Aristech Chem.,
769 F. Supp. 254, 257 (S.D.Ohio 1991). In order to resolve these
competing interests, the courts must balance the interests of the
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public in the proper safeguarding of the judicial process together
with the interests of each party to the litigation. General Mill
Supply Co. v. SCA Servs., Inc., 697 F.2d 704, 711 (6th Cir. 1982).
The power to disqualify an attorney from a case is "incidental to all
courts, and is necessary for the preservation of decorum, and for
the respectability of the profession." Kitchen, 769 F. Supp. at 256
(quoting Ex Parte Burr, 9 Wheat. 529, 22 U.S. 529, 531, 6 L. Ed.
152 (1824)). However, "the ability to deny one's opponent the
services of his chosen counsel is a potent weapon." Manning v.
Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir.
1988). Motions for attorney disqualification should be viewed with
extreme caution for they can be misused as techniques of
harassment. Freeman v. Chicago Musical Instrument Co., 689 F.2d
715, 722 (7th Cir. 1982).
Id. at 599, quoting Hamrick v. Union Township, 81 F. Supp. 2d 876, 878 (S.D.Ohio
2000)(Spiegel, J.).
Plaintiff’s counsel has not provided any evidence of an actual conflict of interest between
any of the Defendants such that counsel would be ethically required to take a position in support
of such a Defendant that conflicted with the interests of another Defendant. Defendants should
not be deprived of counsel of their choice on speculation by an opponent with the inevitable
consequence of increasing the costs of defense.
The Renewed Motion to Disqualify is DENIED.

December 27, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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