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MILLER v. CHICAGO & NORTH WESTERN TRANSP. CO.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


September 13, 1996

VARDEN C. MILLER, Plaintiff,
v.
CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, 1 Defendant.

The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 As stated in this Court's September 9, 1996 memorandum opinion and order (the "Opinion," a copy of which is attached to this opinion), C&NW has very recently filed a motion seeking to disqualify the lawyer and law firm who have represented Varden Miller ("Miller") from the beginning of this Federal Employers Liability Act ("FELA") action against C&NW. Because C&NW's original memorandum in support of its motion had not focused sufficiently on the key issue involved (even though this Court had earlier identified that issue orally when the motion was originally tendered), the Opinion directed both sides to provide memoranda (or at least relevant citations) in advance of this morning's status hearing.

 Both counsel have been good enough to do so. For its part C&NW has provided no case law references beyond those adduced in its original memorandum--and with that memorandum having already been found insufficient to the task, C&NW certainly has offered no satisfactory grist for the decisional mill. Miller's lawyer has done somewhat better on the legal front by pointing not only to LaSalle Nat'l Bank (cited by this Court in Opinion at 3, without its then having undertaken any research beyond its own recollection) but also to two later Seventh Circuit cases that support Miller's position, Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983) and United States v. Goot, 894 F.2d 231, 234-35 (7th Cir. 1990). Quite surprisingly, neither side has cited an even more recent case from our Court of Appeals that has not only reconfirmed both (1) the rebuttability of the presumption of shared confidences and secrets and (2) the effectiveness of appropriate screening procedures (the proverbial "Chinese Wall") to accomplish such rebuttal but--perhaps even more importantly for present purposes--that has done so in a situation startlingly parallel to the current one: Cromley v. Board of Educ., 17 F.3d 1059, 1064-65 (7th Cir. 1994) *fn2"

 What controls in this instance is not only those two legal propositions but also the exemplary manner in which Miller's law firm has conformed to the dictates set out by our Court of Appeals' decisions. Because the firm's screening procedures represent a model of the conduct to be followed by any law firm that takes in a new lawyer who could otherwise create problems of potential disqualification, this opinion has also attached the two affidavits (including the intrafirm memorandum) with which Miller's firm has supplemented its legal memorandum.

 In summary, Miller's counsel has demonstrated beyond question that no disqualification is called for here. C&NW's motion is denied.

 Milton I. Shadur

 Senior United States District Judge

 Date: September 13, 1996

 APPENDIX

 VARDEN C. MILLER, Plaintiff, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, *fn1" Defendant.

 94 C 5176

 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

 September 9, 1996, Decided

 [EDITOR'S NOTE: THIS DOCUMENT IS REPORTED AT: 1996 U.S. Dist. LEXIS 13557.]

 PLAINTIFF'S EXHIBIT A

 IN THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

 VARDEN C. MILLER, Plaintiff, v. CHICAGO AND NORTH WESTERN TRANSPORTATION CO., Defendant.

 No. 94 C 5176

 Judge Shadur

 Magistrate Pallmeyer

 AFFIDAVIT OF JAMES L. FARINA

 I, James L. Farina, being duly sworn and on oath, do hereby depose and state as follows:

 1. I am a partner in the law firm of HOEY & FARINA and am primarily responsible for the litigation of the case of Miller v. Chicago & NorthWestern Transp. Co. ("CNW").

 2. I am personally familiar with the safeguards that our law firm has established for the purpose of erecting a "Chinese Wall" in the employment of attorney George T. Brugess.

 3. On July 31, 1996, five days before Mr. Brugess reported for work with our firm, a memorandum (attached hereto as Exhibit B) was distributed to all employees instructing them to not discuss any aspect of any pending CNW or Union Pacific ("UP") cases in Mr. Brugess's presence. The memorandum also denied Mr. Brugess access to those files. (The word "files" is understood to mean all documents relating to a case.)

 4. In addition to the directions contained in the above-stated memorandum, all six cases our office has pending against the former CNW and/or UP were removed from our common file cabinets and placed in my personal office cabinets, to which only I have the key, prior to distribution of the July 31 memorandum.

  5. Finally, Mr. Brugess is an employee-associate of this law firm, not a partner. Accordingly, he will not share in any fee generated in the Miller case.

 James L. Farina

 Signed and sworn to before me this 10th day of September, 1996.

 Michele Rosario

 Notary Public

 "OFFICIAL SEAL"

 Michele Rosario

 Notary Public, State of Illinois

 My Commission Expires 6/25/97

 PLAINTIFF'S EXHIBIT B

 MEMORANDUM

 TO: All Attorneys and Staff

 FROM: J. Dillon Hoey and James L. Farina

 RE: George Brugess, New Attorney

 DATE: July 31, 1996

 We are pleased to announce that as of August 5, 1996, attorney George Brugess will become an employee of our firm.

 As most of you should know, George was formerly in-house counsel at the Chicago & North Western Transportation Co. and was rather reluctantly swept into the Union Pacific when it purchased that railroad.

 The purpose of this memo is to stress how important it is that we avoid even the slightest appearance of impropriety. No one is to discuss any aspect of any pending claim against the former CNW or the UP files in George's presence. Furthermore, George is not to have access to any of our files that relate to any such pending claim. Finally, in the future, George will only be assigned those cases against the UP where the injury occurred after September 1, 1996.

 We understand that some of the above restrictions will inhibit the free flow of information that normally occurs in our office. Nonetheless, the benefits of having George Brugess working here outweigh the temporary inconvenience it will cause.

 JLF:mar

 PLAINTIFF'S EXHIBIT C

 IN THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

 VARDEN C. MILLER, Plaintiff, CHICAGO AND NORTH WESTERN TRANSPORTATION CO., Defendant.

 No. 94 C 5176

 Judge Shadur

 Magistrate Pallmeyer

 AFFIDAVIT OF GEORGE T. BRUGESS

 I, George T. Brugess, being duly sworn and on oath, do hereby depose and state as follows:

 1. I am an associate in the law firm of HOEY & FARINA.

 2. I previously was employed by Chicago & NorthWestern Transportation Co./Union Pacific Railroad Co. ("CNW/UP").

 3. I have been effectively screened from any participation in the instant case.

 4. The very first order of business on my first day at the law firm was that I was firmly instructed not to access any pending CNW/UP files and that such files would be isolated in a separate cabinet and kept under lock and key to prevent even inadvertent contact.

 5. I was firmly instructed not to have any contact with Mr. Miller, the Plaintiff, or any agent, officer, or employee of Mr. Miller and not to have any contact with any witness for or against Mr. Miller regarding this case.

 6. I was firmly instructed not to discuss this matter with any member, associate, employee, or agent of the law firm.

 7. I have obeyed the instructions given to me; I have not seen any part of any CNW/UP file; I have not had any contact with anyone including the Plaintiff, his agents, officers, employees, family, medical providers, or other person; I have not had contact with any witness regarding the case; and I have not discussed this matter with anyone associated with the law firm.

 8. I will not have any participation in this case or any other pending CNW/UP case in the future.

 9. I am familiar with the Illinois Rules of Professional Conduct and specifically Rules 1.6 through 1.10.

 10. Under no circumstances would I breach my professional obligation to maintain the confidences of my former railroad clients as required by the Illinois Rules of professional Conduct.

  11. As an associate and employee of the law firm, I will not share in any fee generated by this case.

 George T. Brugess

 Signed and sworn to before me this 10th day of September, 1996.

 Michele Rosario

 Notary Public

 "OFFICIAL SEAL"

 Michele Rosario

 Notary Public, State of Illinois

 My Commission Expires 6/25/97


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