United States District Court, M.D. Tennessee, Nashville Division
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE.
has filed a motion (Docket Entry No. 137) to specifically
disqualify Tennessee Assistant Attorney General Matt D.
Cloutier, and generally disqualify the Tennessee Attorney
General's Office (“TAG”), from representing
several Defendants in this case - “Children's
Services as a privately held corporation, ” Jane
Bradley, William Edward Haslam, Robbie Beal, Heather
Jeffries, Tonya Lyles Reed, and Claudia Bonnyman. A response
in opposition to the motion has been filed by the Tennessee
Attorney General and Reporter, see Docket Entry No.
142, to which Plaintiff has filed a reply. See
Docket Entry No. 145.
to disqualify are viewed with disfavor and disqualification
is considered a drastic measure which courts should hesitate
to impose except when absolutely necessary.” In re
Valley-Vulcan Mold Co., 237 B.R. 322, 337
(6th Cir. 1999) (internal citations omitted). As
the party moving for disqualification of an opposing
party's counsel, Plaintiff bears the burden of proving
that counsel should be disqualified. McKinney v.
McMeans, 147 F.Supp.2d 898, 900 (W.D. Tenn. 2001);
Bartech Indus. v. Int'l Baking Co., 910 F.Supp.
388, 392 (E.D. Tenn. 1996). Because Plaintiff has not met
this burden, the motion is DENIED.
asserts that the representation of Defendants by the TAG
“is a conflict of interest, is not authorized by
statues, and is strictly prohibited by ethical rules and
regulations.” See Motion to Disqualify at 2.
The Court is unpersuaded by any of these arguments. Plaintiff
fails to point to any actual conflict of interest that
requires the disqualification of Mr. Cloutier due to a prior
attorney/client relationship between himself and Plaintiff.
Plaintiff further argues that Defendants Haslam, Bonnyman,
and Children's Services, and the TAG have a conflict of
interest because Bonnyman presided over a case Plaintiff
filed against Defendants Haslam and Children's Services
in the Davidson County Chancery Court and in which Haslam and
Children's Services were represented by the TAG. Again,
Plaintiff fails to point out anything about this fact
scenario that requires the disqualification of the TAG.
Id. at 3. Merely representing a party in a prior
case does not disqualify the TAG from future representation
of that party.
conflict of interest argument actually appears to be
primarily based upon her objection to the TAG via Mr.
Cloutier representing multiple defendants in her case and her
belief that each of the Defendants should have to obtain
separate counsel. Id. at 3; Reply at 1-2. Plaintiff
points to Rule 1.7 of the ABA's Model Rules of
Professional Conduct and Rules 1.4 and 1.7 of the Tennessee
Rules of Professional Conduct as support for her argument.
The Court finds no merit in Plaintiff's position. First,
the representation of multiple clients in a case by a single
attorney is not prohibited and does not per se
create a conflict of interest that requires the written
consent of the clients to their simultaneous representation
by a single attorney. Second, Plaintiff has not shown that a
concurrent conflict of interest exists under these
rules. Her argument that Defendants Jeffries and
Bradley have a claim against each other is weak and
unpersuasive, and her contention that Mr. Cloutier is not
representing the best interests of the State of Tennessee and
Children's Services when he also defends the individual
Defendants, whom Plaintiff believes have acted criminally, is
essentially an opinion on her part.
the Court finds no merit in Plaintiff's contention that
the TAG is not statutorily authorized to represent the
individual Defendants in this case. Tenn. Code Ann. §
8-2-103(a) provides that the TAG has the discretion to
represent state employees in a civil action for damages for
acts within the scope of their employment, “except for
willful, malicious, or criminal acts or omissions or for acts
or omissions done for personal gain.” A plaintiff has
no role in determining this decision. It is within the sole
discretion of the TAG to determine whether a defendant's
conduct was willful, malicious, or criminal for the purposes
of the statute, and the TAG representation of any individual
Defendants in this lawsuit is within the sole discretion of
the TAG. See Tenn. Code Ann. § 8-42-108;
Davis v. Hadden, 2012 WL 996612 at *2 (E.D. Tenn.
Mar. 22, 2012); Herron v. Morgan, 2000 WL 1121537 at
*4 (Tenn. Ct. App. Aug. 9, 2000).
also argues that disqualification should occur because she
has filed or will be filing criminal complaints and
affidavits against Defendants Bradley, Beal, Jeffries and
Reed and that the TAG should be disqualified because it has
investigative and prosecutorial duties in certain types of
matters. See Motion at 2; Reply at 4-5. However,
Plaintiff has not shown that the aforementioned investigative
and prosecutorial duties of the TAG extend to the subject
matter of any of the criminal complaints and affidavits that
she has filed.
Plaintiff accuses Mr. Cloutier, solely by virtue of his
representation of Defendants in this case, of being complicit
in criminal activity, of failing to promote justice and
public good, and of being dishonest, untrustworthy, and
unfit. See Reply at 2-3. The Court finds absolutely
no evidentiary basis to support such serious allegations
against Mr. Cloutier. No matter how strongly Plaintiff
believes that she has been wronged, such unfounded personal
attacks have no place in this litigation.
party desiring to object to this Order may do so by filing a
motion for review no later than fourteen (14) days form the
date this Order is served upon the party. The motion for
review must be accompanied by a brief or other pertinent
documents to apprise the District Judge of the basis for the
objection. See Rule 72.01(a) of the Local Rules of
Court. Responses to the motion for review must be filed
within fourteen (14) days of service of the motion for
review. See Rule 72.01(b) of the Local Rules of