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ROJICEK v. RIVER TRAILS SCHOOL DIST. 26

April 16, 2003

MARLENE ROJICEK, PLAINTIFF,
v.
RIVER TRAILS SCHOOL DIST. 26, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James B. Zagel, United States District Judge

MEMORANDUM OPINION AND ORDER

Dr. Shirley Smalley served as Superintendent at River Trails School District No. 26 from 1994 to 2002. As Superintendent, Smalley was occasionally advised by District counsel, Scariano, Himes and Petrarca, Chtd. ("Scariano"). Plaintiff Marlene Rojicek has now sued Smalley, the District, and several other individuals for alleged retaliation for the former's exercise of her First Amendment rights to speech and association arising from a unionization drive of support staff in the District. Scariano represents all defendants in this lawsuit except Smalley, who has moved to disqualify it from representing the other defendants on the basis of its rendering advice to her concerning Rojicek. Smalley also moves for a ruling on privileged communications which she seeks to reveal in her defense.

Disqualification

"Disqualification of an attorney is a drastic measure that should only be imposed when absolutely necessary." Stopka v. Alliance of American Insurers, No. 95 C 7487, 1996 WL 204324, at *2 (N.D.Ill. April 25, 1996). The threshold requirements for disqualification under Local Rule 83.51.7, which governs conflicts of interest, include the presence of direct adversity between clients or a material limitation in an attorney's ability to represent a client. When neither threshold requirement is present, disqualification should be denied. Stopka, 1996 WL 204323, at *4-5. Here, the non-Smalley defendants have never been directly adverse to Smalley, and Scariano's representation of them has not materially limited Scariano's responsibilities to Smalley in any way. The non-Smalley defendants maintain that Rojicek's position was eliminated by way of reduction in force ("RIF") after payroll operations at River Trails were outsourced. They further maintain that prior to the RIF, Smalley presented the Board with two options to solve a payroll accuracy problem — hire a second person to provide an internal check, or outsource. Smalley allegedly recommended outsourcing after consulting with School District counsel. The non-Smalley defendants have consistently maintained that all of their actions, including Smalley's, resulted from a good-faith decision-making process, thus supporting a reliance on the business judgment rule. The Board is not blaming any alleged wrongdoing on Smalley to exculpate itself from liability. Additionally, the Board is statutorily bound to indemnify and hold harmless all its officers and employees for liability for acts committed within their official capacity within the scope of their employment, see 105 ILCS 5/10-20.20, and the Board has always maintained that Smalley was operating within the scope of her authority and will thus argue that punitive damages are not applicable as a matter of law, see 745 ILCS 10/2-102; Reese v. May, 955 F. Supp. 869, 875 (N.D.Ill. 1996). As such, there is no direct adversity among any of the defendants — at least, as of yet — nor are any defendants prejudiced by such a defense strategy.

The alleged conflict expressed by Smalley involves her interest in getting a blanket waiver of the attorney-client privilege between her and Scariano in order to advance an advice of counsel defense.*fn1 As will be shown below, however, Smalley is not authorized to waive the privilege. Accordingly, no conflict exists between her and the non-Smalley defendants on this basis. But even if Smalley was able to obtain a general waiver of privilege, disqualification is nonetheless unnecessary. Smalley claims that the testimony of Scariano lawyers as to the content of her conversations with them — ...


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