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CLAY v. DOHERTY

April 16, 1985

IVIE CLAY, PLAINTIFF,
v.
JAMES DOHERTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

    1. Defendants urge this Court to recuse itself
  under 28 U.S.C. § 455(a) ("Section 455(a)") on
  account of its acquaintance with Saul Friedman
  ("Friedman"), a key non-party witness.
    2. Clay seeks disqualification of defendants'
  counsel, Foran, Wiss & Schultz ("Foran," treated
  in this opinion — to avoid awkwardness in language
  — as a singular masculine noun rather than a
  collective firm name) on the ground Foran's joint
  representation of all the defendants entails clear
  conflicts of interest, inconsistent with an
  attorney's responsibilities under American Bar
  Association ("ABA") Code of Professional
  Responsibility ("Code") Canons 4 and 5 and the
  Disciplinary Rules ("DRs") under those Canons.

For the reasons stated in this memorandum opinion and order, both motions are denied.

Background

It is hardly surprising that four-year-old litigation stemming from eight-year-old events should have a complicated factual and procedural background. For present purposes, however, a relatively brief summary will suffice.

In 1977 Friedman, an Assistant Public Defender in the juvenile division, was appointed to represent Clay after her arrest for aggravated assault on Jose Garcia, whom she had caught climbing through the window of the vacant apartment below hers. On Friedman's advice Clay pleaded guilty to the charges, believing (on Friedman's representation) she would be sentenced to nothing more than probation or supervision. Instead she was committed for custody to the Illinois Department of Corrections. Friedman then filed a form motion to vacate, outlining no specific basis for relief. At the hearing on the motion, Clay was represented by Roger Harris ("Harris"), another Assistant Public Defender, who was unfamiliar with Clay's case and made no argument. Clay's motion to vacate was denied in February 1978.

In early March 1978 Northwestern University Legal Clinic's Assistant Director John Elson ("Elson") took over Clay's representation. Elson filed an amended motion to vacate, in part urging ineffective assistance of counsel in connection with the Friedman motion. Elson's motion was denied because it was untimely and because the issues it raised could have been raised in the first motion to vacate. Elson did not appeal that ruling but rather sought collateral review by means of a federal habeas petition filed in April 1979. That action is still pending, with new counsel acting in place of Elson. See Clay v. Director, Juvenile Division, Department of Corrections, 749 F.2d 427, 433 (7th Cir. 1984).

Two years later Clay (through Elson as her counsel) filed this Section 1983 action, including Friedman and Harris as defendants. This Court dismissed the Section 1983 claims against Friedman and Harris (as well as various pendent state claims) on the authority of Polk County v. Dodson, 454 U.S. 312, 319-25, 102 S.Ct. 445, 450-53, 70 L.Ed.2d 509 (1981) (see Clay v. Friedman, 537 F. Supp. 409 (N.D.Ill. 1982)), and Clay then filed a common law malpractice action against both public defenders in state court. As against the remaining defendants here:

    1. Clay has alleged Doherty, Katz and Goodman
  caused violations of her constitutional rights by
  their inadequate training and supervision of
  Friedman and Harris.
    2. Clay seeks to hold County liable under
  Monell v. Department of Social Services of the City
  of New York, 436 U.S. 658, 690-95, 98 S.Ct. 2018,
  2035-38, 56 L.Ed.2d 611 (1978).
    3. Clay has also asserted state law tort claims
  against all four defendants.
  [A]s the agency which prosecuted Ms. Clay, and
  would have urged the Appellate Court to affirm
  her conviction, [the State's Attorney] cannot now
  ask that her appeal would have been successful
  and her conviction reversed.

This Court granted the State's Attorney's motion to withdraw in this action. Foran, designated as a special State's Attorney for the purpose, assumed the representation of defendants both here and in the state court lawsuit. Elson has since withdrawn as counsel for Clay, who is now represented by court-appointed counsel.

Section 455(a) Motion

Though Friedman is no longer a defendant in Clay's Section 1983 suit, he clearly remains a key witness: His representation of Clay in the juvenile criminal proceeding forms the basis of her claims against Doherty, Katz and County. Because lawyer substitutions have entirely changed the original cast of characters, this Court therefore thought it appropriate to repeat, at a December 28, 1984 status conference, a disclosure made when the case first arose — this Court's social acquaintance with Friedman and his wife (Tr. 2-3):

  As I understand it, Mr. Friedman's wife has been
  a friend since high school days of two women who
  have been friends with my wife since college
  days, and as a result we have, although we have
  never been the Friedman's guests, nor have they
  been ours, we have seen them sporadically over
  the last maybe 20 years or so.
  For example, I remember when the daughter of one
  of these ladies, close friend of my wife's, was
  married we ended up seated at the same table for
  dinner, and there have been other comparable
  social occasions on which we have seen them.
  I must tell you, just to show the level of my
  ignorance, I knew of him, Mr. Friedman, not as a
  lawyer but as a business partner of his wife's
  brother, which I guess he was for a long time
  before he must have gone back into the practice.
  In any event, I wanted to let everybody know up
  front. I have not found that as inhibiting my
  actions here because I don't have any kind of
  stake in him or ...

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