United States District Court, W.D. Tennessee, Western Division
JANE DOE, Individually and as Class Representative of All Others Similarly Situated, Plaintiffs,
CITY OF MEMPHIS, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
CHARMIANE G. CLAXTON, Magistrate Judge.
Before the Court is Defendant City of Memphis's ("City") Motion to Disqualify Plaintiff's Counsel, Robert L. J. Spence, and his law firm, The Spence Law Firm, PLLC. (Docket Entry "D.E." #39). The instant motion was filed on October 1, 2014 pursuant to Rules 1.7, 1.9, and 1.11 of the Tennessee Rules of Professional Conduct. The instant motion was referred to the Magistrate Judge for determination. (D.E. #45). For the reasons set forth herein, Defendant's Motion to Disqualify Plaintiff's Counsel is hereby GRANTED IN PART as to Mr. Spence and DENIED IN PART as to The Spence Law Firm.
On December 20, 2013, Plaintiffs filed a Class Action Complaint ("Complaint"), which was subsequently amended three times, against Defendant City of Memphis containing claims under federal and state law regarding its alleged failure to submit sexual assault kits of female victims for appropriate testing, thereby causing spoliation of the evidence. (D.E. #1, #11, #31, #37). On December 10, 2014, the District Court entered an Order Granting in Part and Denying in Part Defendant's Motion to Dismiss ("Order of Partial Dismissal"). (D.E. #44). The District Court's Order of Partial Dismissal dismissed all claims with the exception of Plaintiffs' Equal Protection claim for sex discrimination pursuant to 42 U.S.C. § 1983. ("Section 1983").
The instant motion argues that one of Plaintiff's attorneys, Robert L. J. Spence ("Mr. Spence"), and his law firm, The Spence Law Firm, PLLC, should be disqualified from representing Plaintiffs due to Mr. Spence's service as City Attorney for the City of Memphis from 1997 until 2004. The City argues that Mr. Spence acquired confidential information about it that would be highly relevant to the claims of systematic wrongs alleged by Plaintiffs. The City further argues that Plaintiffs' allegations call Mr. Spence's own conduct directly into question, as he was one of the "persons with final policymaking authority with the City of Memphis." (Third Am. Compl. ¶ 137). Plaintiffs respond that Mr. Spence's former representation of the City of Memphis does not violate the Tennessee Rules of Professional Conduct. Plaintiffs further rely upon Mr. Spence's Affidavit filed in support of their Response for their position that he should not be disqualified as counsel.
The question of whether Mr. Spence's representation complies with the Tennessee Rules of Professional Conduct begins with a consideration of the nature of the cause of action alleged by Plaintiffs. The sole remaining claim against the City is for sex discrimination pursuant to Section 1983. Section 1983 provides, in relevant part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Plaintiffs who seek to impose liability on local governments under Section 1983 must prove that "action pursuant to official municipal policy" caused their injury. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978). "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Id .
With respect to the disqualification of counsel, "[a]lthough a district court possesses inherent authority to disqualify an attorney to aid in the fair administration of justice, " it is a "very sensitive inquiry" and a remedy that should not be used "lightly." Crystal D. Barker v. Professional Educators of Tennessee, No. 3:12-cv-0044, 2012 WL 1900920, at *3 (M.D. Tenn. May 23, 2012) (citing Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir. 1988); Cavender v. U.S. Express Enters., Inc., 191 F.Supp.2d 962, 965 (E.D. Tenn. 2002)). "[C]ourts must remain sensitive to the parties' choice of counsel and weigh that interest against the public's interest in a fair judicial process." Id . To accomplish this goal, courts must "exercise judgment with an eye toward upholding the highest ethical standards of the profession, protecting the interests of the litigants in being represented by the attorney of their choosing, protecting the loyalty and confidences a prior client may have placed in a law firm or attorney, and the overriding societal interests in the integrity of the judicial process." Cavender, 191 F.Supp.2d at 965.
The Sixth Circuit has articulated a three-part test for determining whether disqualification based on a conflict of interest is warranted: (1) a past attorney-client relationship existed between the party seeking disqualification and the attorney it seeks to disqualify; (2) the subject matter of those relationships was/is substantially related; and, (3) the attorney acquired confidential information from the party seeking disqualification. In re Valley-Vulcan Mold Co., 5 Fed.Appx. 396, 401 (6th Cir. 2001) (citing Dana Corp. v. Blue Cross & Blue Shield Mut., 900 F.2d 882, 889 (6th Cir. 1990)). Further, in analyzing motions to disqualify counsel for conflicts of interest with former clients, the court looks to the Tennessee Rules of Professional Conduct for guidance. Nat'l Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456, 457-58 (6th Cir. 2006), vacated in part on other grounds, 472 F.3d 436 (6th Cir. 2007).
Rule 1.11(a) of the Tennessee Rules of Professional Conduct addresses the special conflicts of interest for former government officers and employees and provides, in pertinent part, as follows:
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to RPC 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, in writing, to the representation.
Tenn. Sup.Ct. R. 8, RPC 1.11(a).
Rule 1.9(c) of the Tennessee Rules of Professional Conduct addresses an attorney's general duties to a former client and provides as follows:
(c) A lawyer who has formerly represented a client in a matter... shall not thereafter reveal information relating to the representation or use such information to the disadvantage of the former client unless (1) the former client gives informed consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect to a client, or (3) the information has become generally known.
Tenn. Sup.Ct. R. 8, RPC 1.9(c).
Comment 4 to Rule 1.11 provides its rationale as follows:
This Rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and a private client, the risk exists that power or discretion vested in that agency might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of the government. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. On the other hand, the rules governing lawyers should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus, a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially.
Tenn. Sup.Ct. R. 8, RPC 1.11, cmt. 4.
Comment 2 to Rule 1.9 circumscribes the scope of a ...