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MILLER v. CHICAGO & NORTH WESTERN TRANSP. CO.

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

 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 ...


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