The opinion of the court was delivered by: GRADY
Before the court is the plaintiffs' motion to (1) prevent the defendants' attorneys from representing two nonparty witnesses during the witnesses' depositions, and (2) interview those witnesses without the defendants' attorneys being present. For the reasons stated in this opinion, the plaintiffs' motion is denied.
Ilsa Guillen ("the plaintiff"), the widow of Jorge Guillen ("Mr. Guillen"), has filed a variety of civil rights claims against several Chicago police officers and against the City of Chicago itself. The plaintiff's complaint is based upon the officers' alleged role in the death of her husband on October 3, 1995. The plaintiff is suing as the personal representative of Mr. Guillen's estate. She is also suing on behalf of (1) herself, and (2) Lizbeth and Christopher Guillen, the daughter and son of the deceased. An abbreviated version of the circumstances surrounding Mr. Guillen's death follows.
On the night of October 3, 1995, Lizbeth Guillen called a "911" operator and requested the assistance of the Chicago Police Department because her father was acting irrationally. Within approximately thirty minutes, three officers arrived at the Guillen residence and attempted to subdue Mr. Guillen. At some point during the encounter, the officers called for backup and four additional officers arrived at the scene. According to the complaint, several officers bludgeoned Mr. Guillen with their nightsticks and then suffocated him by applying pressure to his neck and back. Some time after Mr. Guillen had lost consciousness, two paramedics, Vacountess Marlow and Timothy O'Leary, arrived at the Guillens' apartment. The complaint alleges that the officers made no attempt either to revive Mr. Guillen once he stopped breathing or to provide Mr. Guillen with any other form of medical assistance before the paramedics reached the apartment. The paramedics transported Mr. Guillen to a hospital but he was pronounced dead shortly after arrival.
The plaintiff has now moved to disqualify the City's corporation counsel ("City counsel") from representing Marlow and O'Leary at their depositions. The plaintiff has also requested that her attorneys be able to interview the paramedics without City counsel being present. The plaintiff contends that in their official report and in contemporaneous interviews with investigators, the paramedics made a number of statements which demonstrate that the officers failed to provide Mr. Guillen with emergency medical care. The plaintiff also maintains that a subsequent police report erroneously claims that the paramedics changed their accounts of the incident in a later interview. Relying on Disciplinary Rule 5-105(B) of the American Bar Association's Model Code of Professional Responsibility, the plaintiff argues that City counsel's common representation of both the defendants and the paramedics creates a conflict of interest that warrants disqualification:
The paramedics' interest is, and should be, in telling the truth, which, according to their initial reports, demonstrates that Chicago Police Officers failed to provide Jorge Guillen with medical care even after they knew he had stopped breathing.
The City's interest is in showing that the defendant officers did not violate Mr. Guillen's rights, harm him through their actions, or deny him medical care, and further that they were properly trained to handle the situation when they used deadly force.
Plaintiffs' Motion to Disallow Corporation Counsel's Common Representation of City of Chicago and Neutral City Employee Paramedics ("Plaintiffs' Motion") at 4, PP 16-17.
A. Attorney Disqualification
At the outset, it should be noted that both parties have neglected to address the question of whether DR 5-105(B) is even applicable to the case at hand. An examination of the Local Rules for the Northern District reveals that it is not. In July 1982, through a series of amendments to the General Rules, the Northern District adopted the provisions of the American Bar Association's Model Code of Professional Responsibility. United States District Court, Northern District of Illinois, General Order (July 12, 1982) (on file with the Office of the Clerk); see also Lawline v. American Bar Ass'n, 738 F. Supp. 288, 291 (N.D. Ill. 1990), aff'd, 956 F.2d 1378 (7th Cir. 1992) (observing that in 1982 the court "embraced the ABA Model Code"). Under the 1982 version of General Rule 3.54(B), attorneys who failed to abide by the provisions of the Model Code were subject to disbarment or to other disciplinary measures.
See Stamp v. Brown, 1990 U.S. Dist. LEXIS 2086, No. 81 C 1475, 1990 WL 19981, at *2 (N.D. Ill. Feb. 27, 1990) (commenting that Rule 3.54(B) incorporated the provisions of the Model Code). However, in March 1991, the Northern District vacated and set aside Rules 3.50 through 3.59. The court simultaneously promulgated a new set of General Rules numbered 3.50 through 3.60. United States District Court, Northern District of Illinois, General Order Adopting Disciplinary Rules (Mar. 28, 1991) (on file with the Office of the Clerk). Rule 3.54(B) was superseded by Rule 3.52(B), which provides that the standards for determining attorney misconduct are to be based on the "Rules of Professional Conduct for the Northern District of Illinois."
See Scholes v. Tomlinson, 1991 U.S. Dist. LEXIS 10486, Nos. 90 C 1350 et al., 1991 WL 152062, at *2 n.2 (N.D. Ill. July 29, 1991) (noting that "Local Rule 3.54(B) has very recently been supplanted by new Local Rule 3.52(B)"). These "Rules of Professional Conduct" are comprised of selected portions of the American Bar Association's Model Rules of Professional Conduct and the Illinois Rules of Professional Conduct. Rules of Professional Conduct for the Northern District of Illinois, Rules 1.1-8.5 (1995); see also Reuben H. Donnelly Corp. v. Sprint Publ'g & Adver., Inc., 1996 U.S. Dist. LEXIS 2363, No. 95 C 5825, 1996 WL 99902, at *2 n.1 (N.D. Ill. Feb. 29, 1996) (noting that the Northern District has adopted certain segments of the Illinois Rules).
Thus, as a technical matter, the ethical canon on which the parties have focused their attention no longer governs the conduct of attorneys before the Northern District. See Lawline v. American Bar Ass'n, 956 F.2d 1378, 1381 n.1 (7th Cir. 1992) (noting that the ABA Model Rules superseded the Model Code in 1983 and that provisions of the Code "are now extinct in Illinois state courts as well as the Northern District"). As a result, the court would have no qualms evaluating the current motion exclusively under the rubric of the Northern District's Local Rules. However, because the result is the same under DR-105(B) and the applicable Local Rules, and because much of the relevant case law was decided under DR ...