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.
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
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
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
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 ...