Cisco v. Norfolk Southern Railway Company
Filing
120
MEMORANDUM OPINION AND ORDER denying defendant Norfolk Southern Railway Company's 109 MOTION to disqualify plaintiff's counsel due to an impermissible conflict of interest; and the motion to withdraw as counsel in the Stevens (Civil Action No. 2:12-740) matter is granted. Signed by Judge John T. Copenhaver, Jr. on 7/2/2013. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROGER CISCO,
Plaintiff,
v.
Civil Action No. 2:12-739
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant/Third Party Plaintiff,
v.
GEORGE DOTSON,
Third Party Defendant.
CASEY STEVENS,
Plaintiff,
v.
Civil Action No. 2:12-740
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant/Third Party Plaintiff,
v.
GEORGE DOTSON,
Third Party Defendant.
MEMORANDUM OPINION AND ORDER
Pending in both of these actions are defendant Norfolk
Southern Railway Company's ("Norfolk") materially identical
motions to disqualify plaintiffs' counsel due to an
impermissible conflict of interest, filed April 2, 2013, and a
motion to withdraw as counsel in the Stevens matter.
These actions are not consolidated.
Inasmuch as the
motions are essentially identical in both cases, however, the
court addresses them in tandem.
I.
Both plaintiffs, Roger Cisco and Casey Stevens, were
employed by Norfolk.
On May 2, 2011, Cisco and Stevens traveled
in Cisco's car to retrieve a Norfolk vehicle at another
location.
Cisco drove his personal vehicle and Stevens was his
passenger.
Cisco and Stevens collided with another vehicle
driven by third-party defendant George Dotson, who had pulled
out in front of them onto Highway 119.
The West Virginia
Uniform Traffic Crash Report indicates that Dotson’s failure to
yield the right-of-way was the only contributing factor to the
accident.
He was so cited.
These two separate actions were subsequently
instituted against Norfolk by Cisco and Stevens.
The two men
are represented by common counsel, namely, Robert S. Goggin,
III, of the Philadelphia law firm of Keller & Goggin, P.C., and
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Joseph M. Farrell, Jr., of the firm Farrell, White & Legg, PLLC,
in Huntington.
Neither Cisco nor Stevens plead any claims
against each other.
It appears that the applicable limitations
period has expired.
Cisco asserts multiple serious injuries arising out of
the collision that have resulted in his permanent disability.
His Life Care Planner projects a total cost of $5,299,954.20 for
his future and current medical treatment, interventions, and
other necessary services.
Cisco's retained economist projects
the net present value of his pre-injury income capacity at
$1,086,385.00.
In his separate civil action, Stevens claims that he
sustained less serious injuries of the soft-tissue variety but
likewise asserts that he is permanently disabled.
Stevens' Life
Care Expert estimates future medical care costs of $284,525.00,
and his retained economist projects his net lost income ranges
from
$l,286,779.00 to $860,639.00.
On March 6, 2013, Norfolk’s counsel deposed Cisco.
He
testified that Stevens spilled hot coffee on him, causing him to
lose control of his car.
When asked if the third party
defendant Dotson had anything to do with the accident, he
responded “I guess he had part, but I don't think, no. What made
3
the accident is the coffee really.” (Dep. of Roger Cisco at 75).
He continued as follows: “I could have maybe -- I probably could
have avoided the accident if it wasn't for the coffee hitting
me.”
(Id. at 76).
Cisco was also asked when he first told anyone about
the spilled coffee.
He testified as follows: “Well, my lawyer
knowed (sic) about it.”
(Id. at 34).
An accident
reconstruction expert employed by Cisco opined similarly as
follows: "There was enough time and distance of separation,
before the collision . . . [for] . . . Cisco to . . . avoid the
collision . . . but for the distraction of . . . the coffee
being spilled onto" him by Stevens.
(Ex. G., Def.'s Mot. to
Disq. at 24).
On March 7, 2013, Norfolk deposed Stevens.
He
testified as follows:
Q. Do you feel like you were at fault for the accident
at all?
A. No.
Q. So if Mr. Cisco says that he thinks he would have
avoided it but for that coffee spill, you would
disagree with him?
A. That's his opinion.
Q. Okay. You just disagree with that opinion?
A. I think he should have maintained control, coffee
or no coffee.
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Q. Okay. So in other words -- and you correct me,
absolutely, if I'm wrong -- what you believe NS did
wrong is essentially what Mr. Cisco did wrong and
failed to maintain control, right?
A. Yes.
(Dep. of Casey Stevens at 71; see also id. at 69 (stating also
"My buddy, Roger, you know, I love him to death, but it was
overall him in the end.").
On two occasions, March 11 and 18, 2013, counsel for
Norfolk inquired of Mr. Goggin and Mr. Farrell how they planned
to address the material conflict that had developed between the
two clients.
No response was received.
disqualify followed.
The motions to
In their April 16, 2013, response brief,
Mr. Goggin and Mr. Farrell represent that "counsel has secured
written waivers from both plaintiffs . . . . [and] has
identified referral counsel and is in the process of finalizing
the referral of one of the plaintiffs."
(Resp. at 2).
The
court had not been presented with the waivers or any affidavit
attesting to the counseling on the matter, if any, provided to
either Cisco or Stevens.
On May 10, 2013, Mr. Goggin and Mr. Farrell moved to
withdraw in the Stevens matter.
The motion to withdraw noted
that Stevens had retained James F. Humphreys & Associates, L.C.,
to represent him.
Mr. Humphreys' firm has noticed its
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appearance for Stevens.
On May 21, 2013, the court directed Mr.
Goggin and Mr. Farrell to produce under seal and ex parte the
executed written waivers ("consents") executed by the clients in
this matter.
affidavits.
The court has reviewed the consents and counsels’
Those materials reflect that counsel fully
discussed with Cisco and Stevens the hazards of joint
representation, Cisco and Stevens asked numerous question, all
of which were answered to the best of Mr. Goggin’s ability, and
immediately after both clients executed waivers.
Since that
time, Mr. Goggin has had over ten separate discussions with
Cisco and Stevens respecting unfolding factual and medical
information, with Cisco and Stevens reaffirming their waivers on
each occasion.
Both Cisco and Stevens executed new waivers as
recently as June 4, 2013, with Mr. Stevens being counseled
additionally by Mr. Humphreys at that time.
II.
A.
Governing Standard
The Supreme Court of Appeals of West Virginia recently
observed as follows:
“A circuit court, upon motion of a party, by its
inherent power to do what is reasonably necessary for
the administration of justice, may disqualify a lawyer
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from a case because the lawyer's representation in the
case presents a conflict of interest where the
conflict is such as clearly to call in question the
fair or efficient administration of justice. Such
motion should be viewed with extreme caution because
of the interference with the lawyer-client
relationship.”
Syl. Pt. 2, State ex rel. Verizon West Virginia, Inc. v. Matish,
--- W. Va. ---, ---, 740 S.E.2d 84, 87 (2013) (quoting Syl. Pt.
1, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991)); Id.
at ---, 740 S.E.2d at 99 ("[D]isqualification, as a prophylactic
device for protecting the attorney-client relationship, is a
drastic measure which courts should hesitate to impose except
when absolutely necessary. A disqualification of counsel, while
protecting the attorney-client relationship, also serves to
destroy a relationship of their own choosing.... [S]uch motions
should be viewed with extreme caution for they can be misused as
techniques of harassment.") (citations and internal quotation
marks omitted).
West Virginia Rule of Professional Conduct 1.7
provides pertinently as follows:
(a) A lawyer shall not represent a client if the
representation of that client will be directly adverse
to another client, unless:
(1) the lawyer reasonably believes the
representation will not adversely affect the
relationship with the other client; and
(2) each client consents after consultation.
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(b) A lawyer shall not represent a client if the
representation of that client may be materially
limited by the lawyer's responsibilities to another
client or to a third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes the
representation will not be adversely
affected; and
(2) the client consents after consultation.
When representation of multiple clients in a
single matter is undertaken, the
consultation shall include explanation of
the implications of the common
representation and the advantages and risks
involved.
(W. Va. R. Prof. Cond. 1.7(a) (emphasis added)).
The supreme
court of appeals has held that the primary concern under Rule
1.7(b) is that “[a]n attorney should ‘not be permitted to put
himself in a position where, even unconsciously, he will be
tempted to “soft pedal” his zeal in furthering the interests of
one client in order to avoid an obvious clash with those of
another.’”
Barefield v. DPIC Cos., Inc., 215 W. Va. 544, 557,
600 S.E.2d 256, 269 (2004) (quoting Committee on Legal Ethics v.
Frame, 189 W. Va. 641, 645, 433 S.E.2d 579, 583 (1993) (citation
omitted)); State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W.
Va. 148, 158-59, 697 S.E.2d 740, 750-51 (2010)("In certain cases
the rule may serve to foster vigorous advocacy on behalf of the
lawyer's current client by removing from the case a lawyer who
would otherwise have to be conscious of preserving her former
8
client's confidences.")(citation and internal quotation marks
omitted).
The comment to Rule 1.7 provides materially as
follows: "Where more than one client is involved and the lawyer
withdraws because a conflict arises after representation,
whether the lawyer may continue to represent any of the clients
is determined by Rule 1.9. See also Rule 2.2(c)." (W. Va. R.
Prof. Cond. 1.7(a) comment; see id. (stating "Simultaneous
representation of parties whose interest in litigation may
conflict, such as coplaintiffs . . . is governed by paragraph
(b). An impermissible conflict may exist by reason of . . .
incompatibility in positions in relation to an opposing party .
. . .")).
Rule 1.9, which is referenced by Rule 1.7 for the
circumstances here appearing, provides as follows:
A lawyer who has formerly represented a client in a
matter shall not thereafter:
(a) 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 consents after
consultation; or
(b) use information relating to the
representation to the disadvantage of the
former client except as Rule 1.6 or Rule 3.3
would permit or require with respect to a
9
client or when the information has become
generally known.
(W. Va. R. Prof. Cond. 1.9 (emphasis added)).
In the Matish
decision, the supreme court of appeals additionally noted as
follows:
Rule 1.9(b) of the West Virginia Rules of
Professional Conduct has three primary objectives: (1)
to safeguard the sanctity of the attorney-client
relationship and the confidential information that is
shared by a client during the course of an attorneyclient relationship; (2) to protect from disclosure
the confidential information revealed by a client to
his/her attorney during the course of an attorneyclient relationship; and (3) to prohibit an attorney
from using such confidential information adversely to
his/her former client.
Matish, --- W. Va. at ---, 740 S.E.2d at 87.
As noted in
Matish, the commentary to Rule 1.9(b) provides that "the fact
that a lawyer has once served a client does not preclude the
lawyer from using generally known information about the client
when later representing another client."
Id. at 95 (quoting
comment)).
B.
Analysis
As the supreme court of appeals noted in In re James,
"This case illustrates the difficulties that may arise when two
. . . clients seek to engage the same attorney."
870, 875-76, 679 S.E.2d 702, 707-08 (2009).
10
223 W. Va.
There is
undoubtedly a conflict of interest situation presented.
Stevens
and Cisco differ markedly concerning the cause of the collision,
with Stevens attributing fault to Cisco and the latter
inculpating Dotson.
Both Cisco and Stevens, however, have
executed the written waivers contemplated by Rules 1.7 and
1.9(a). Additionally, Stevens has now retained experienced
substitute counsel.
The matter of Rule 1.9(b) remains.
The conflict
between Cisco and Stevens respecting fault that in turn results
in a conflict for Mr. Goggin and Mr. Farrell interestingly does
not appear to redound to the legal detriment of either
plaintiff.
For example, in the event the cases proceed past the
summary judgment stage, if the jury believes Cisco, with Stevens
implicitly deemed to have caused the accident, Stevens shoulders
no liability for damages.
Likewise, if the jury believes
Stevens that Cisco failed to exercise due care, the latter will
not be accountable for a monetary award.
Rather, in both
instances, damages liability would attach to Norfolk, the entity
attempting to have plaintiffs' counsel disqualified.
In assessing the proper outcome, the court is mindful
of the well-settled proposition in West Virginia law that
disqualification is a drastic step reserved for those instances
where it is absolutely necessary.
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That principle, along with
several other considerations, guides the Rule 1.9(b) analysis.
First, it is unclear what, if any, confidential information, not
generally known, Mr. Goggin and Mr. Farrell could use to the
disadvantage of Mr. Stevens during the Cisco trial.
are straightforward personal injury matters.
The cases
Also, the court
would contemplate the Stevens matter being tried first.
It is
thus uncertain what yet-secret information Mr. Goggin and Mr.
Farrell could question Mr. Stevens about on cross examination
during the Cisco trial after he would have previously undergone
a searching inquiry during both his deposition and his own
trial.
Second, Mr. Stevens is not left to his own devices in
protecting the confidences, if any, that he shared with Mr.
Goggin and Mr. Farrell.
He is represented by a competent
advocate who will be expected to attend the Cisco trial, listen
attentively during Mr. Stevens' cross examination, and ask to be
heard in the event some prohibited area of inquiry arises.
Third, the court discerns no basis for concluding that
Mr. Goggin and Mr. Farrell will represent Mr. Cisco in anything
other than the vigorous manner demanded by the Rules of
Professional Conduct, all the while remaining faithful to the
strictures imposed upon them by those same Rules respecting
Stevens.
In the event any doubt arises on their, or any other
12
interested individual's, part, the court will revisit the matter
of disqualification.
III.
Based upon the foregoing discussion, it is ORDERED as
follows:
1.
That Norfolk's motions to disqualify plaintiffs'
counsel due to an impermissible conflict of interest
be, and hereby are, denied; and
2.
That the motion to withdraw as counsel in the Stevens
matter be, and hereby is, granted.
The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
ENTER:
July 2, 2013
John T. Copenhaver, Jr.
United States District Judge
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