Murray v. Williams et al (TV3)

Filing 70

MEMORANDUM AND ORDER denying 16 Motion to Disqualify Counsel. Signed by Magistrate Judge C Clifford Shirley, Jr on 9/15/15. (c/m) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LORETTA MURRAY, et al.,

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Plaintiffs,
v.
FRANK WILLIAMS, et al.,
Defendants.

No. 3:15-CV-284-TAV-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is a motion entitled “Motion to Withdraw as Other Defendants
Counsel,” [Doc. 16], filed by Plaintiffs Loretta Murray, Bobby Murray, Billy Murray, and Roger
Murray. The parties1 appeared before the undersigned on September 14, 2015, to present oral
arguments on this motion. For the reasons more fully stated at the hearing, the motion is
DENIED WITHOUT PREJUDICE.
Plaintiffs move the Court to order that Attorney Mark Foster withdraw as counsel for
Defendants Dennis Miracle and Glenda Faye Miracle, because Mr. Foster is also a defendant in
this case and is representing himself. In support of their motion, the Plaintiffs argue generally
that Mr. Foster has a conflict of interest, and specifically, they argue that Mr. Foster cannot be a
witness and attorney at trial. Plaintiffs maintain that Mr. Foster’s multiple roles in this case are
likely to confuse a jury. At the hearing, Plaintiffs emphasized the issues that Mr. Foster’s

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The Office of the Attorney General did not appear on behalf of its clients and, instead, filed a notice stating that its
clients did not take a position on the instant motion. Similarly counsel for Ms. Oldfield did not appear, and it is
presumed that Ms. Oldfield does not take a position on this motion.

representation would present at trial. They did not argue that Mr. Foster should be precluded
from representing the Miracles and himself during preliminary motion practice.
The Miracles and Mr. Foster have responded in opposition to the Plaintiffs’ motion.
[Doc. 19]. They maintain that a conflict of interest does not currently exist and that the Court
should wait to decide whether Mr. Foster should be disqualified based upon potential trial issues.
The Miracles and Mr. Foster argue that the Plaintiffs filed the instant motion for strategic
reasons, and they contend that Mr. Foster should be permitted to represent both himself and the
Miracles at least until the pending dispositive motions are decided. At the hearing before the
undersigned, Mr. Foster conceded that he could not be both a witness and attorney at trial, but he
maintained that he should not be removed as the Miracles’ counsel at this juncture. He argued
that removing him now would impose a hardship upon the Miracles.
The Court has reviewed both Rule 1.7 and Rule 3.7 of the Tennessee Rules of
Professional Conduct, as adopted by this Court through E.D. Tenn. L.R. 83.6, along with the
procedural posture of this case, and the Court finds that the Plaintiffs’ motion is premature at this
time. As more fully stated at the hearing on this motion, the Court finds that the concerns
expressed by Plaintiffs are all tied to the trial of this action, and while both the Court – and to a
degree Mr. Foster – acknowledge that Plaintiffs’ concerns may be a bar to Mr. Foster continuing
his dual representation through trial, the Court cannot find that disqualification is appropriate at
this juncture. Seven motions to dismiss are currently pending, and this case has not yet been set
for trial. The Court finds that disqualifying Mr. Foster at this juncture would be premature and,
potentially, unnecessary.
Accordingly, the “Motion to Withdraw as Other Defendants Counsel,” [Doc. 16] is
DENIED WITHOUT PREJUDICE. Plaintiffs may re-file their motion, if appropriate, after

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the Court issues a ruling upon the pending motions to dismiss. If Plaintiffs elect to file a
renewed motion after the ruling is issued, they are directed to: cite specific provisions of the
Rules of Professional Responsibility, describe specifically how each provision is being violated,
and describe specific relevant facts rather than relying on generalities.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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