The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
This case arises from the Plaintiff's termination from Suburban
Bank and Trust (hereinafter, "Suburban"), where she served as
President. During her time at Suburban, Plaintiff engaged in a
long-term sexual relationship (approximately 16 years) with Mr.
Hill, Jr., the husband of Blanche Hill and father of David Hill,
III. Plaintiff brought a nine-count complaint against Suburban,
and individually against Blanche Hill and David Hill, III, for
sex discrimination, age discrimination, retaliation, as well as
several state claims. Defendants contend that Plaintiff was
terminated for poor work performance. Before the Court is
Plaintiff's Motion to Disqualify Defendants' counsel Steven
Hartmann for a conflict of interest (the "Motion").
Plaintiff bases her Motion upon Local Rule 83.51.9, which
A lawyer who has formerly represented a client in a
matter shall not thereafter represent another person
in the same or a substantially related matter in which the person's interests are
materially adverse to the interests of the former
client unless the former client consents after
Plaintiff contends that Hartmann has a conflict of interest and
raises one primary ground for disqualifying him his
representation of Plaintiff in connection with an EEOC charge of
sexual harassment filed by former employee Ms. Triplett against
Plaintiff, Mr. Hill, Jr., and Suburban (the "Triplett
proceeding"). Hartmann represented Plaintiff in defending
Triplett's EEOC charge and in documenting the settlement reached
between Triplett and Plaintiff. Plaintiff contends that the
Triplett proceeding is substantially related to the present
matter and thus Hartmann should be barred from representing
Defendants in the present adverse action. Specifically, Plaintiff
asserts that Blanche Hill and David Hill, III discovered her
sexual relationship with their husband and father, respectively,
as a result of the Triplett proceeding. Further, Plaintiff
alleges that there is a presumption that she shared confidences
with Hartmann in the previous representation that could be used
against Plaintiff in connection with Defendants' poor performance
defense. In her reply memorandum, Plaintiff asserts that she
shared other information with Hartmann beyond her relationship
with Mr. Hill, Jr. and Ms. Triplett.
Defendants respond that the Motion is a late-stage litigation
tactic that would cause prejudice and undue hardship to
Defendants. Plaintiff knew of the alleged conflict for twenty
months before filing suit and thus waived any conflict by failing
to act in a prompt manner. Defendants further contend that the substantial
relationship test for disqualification is inapplicable here
because Hartmann jointly represented Plaintiff, Suburban, and Mr.
Hill, Jr. in connection with the Triplett proceeding.
Defendants alternatively argue that even if the substantial
relationship test applies, the Triplett proceeding is not
substantially related to the present action for three main
reasons. First, the Triplett proceeding was limited in scope
Hartmann filed a joint position statement with the Department of
Human Rights, responded to the department's questionnaire, and
documented a settlement reached between Triplett in Plaintiff.
Second, any alleged confidences shared by Plaintiff to Hartmann
during the Triplett proceeding are now generally known she
disclosed the information in her First Amended Complaint and in
the position paper submitted in response to the EEOC complaint.
Further, the Triplett proceeding is unrelated to Plaintiff's
present claims. Finally, Hartmann did not share any of
Plaintiff's confidences from the Triplett proceeding with the
Board in connection with her termination.
Motions to disqualify are a "drastic measure which courts
should hesitate to impose except when absolutely necessary."
Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)
(citations omitted). The Seventh Circuit instructs courts to
consider the following in determining whether to disqualify
counsel: First, we must determine whether a substantial
relationship exists between the subject matter of the
prior and present representations. If we conclude a
substantial relationship does exist, we must
ascertain whether the presumption of shared
confidences with respect to the prior representation
has been rebutted. If we conclude this has not been
rebutted, we must then determine whether the
presumption of shared consequences has been rebutted
with respect to the present representation.
A court can deny a motion to disqualify based on waiver. "A
former client who is entitled to object to an attorney's
representation of an adverse party on the ground of conflict of
interest `but who knowingly refrains from asserting it promptly
is deemed to have waived that right.'" Continental Holdings Inc.
v. United States Can Co., 1996 WL 385346, *1 (N.D. Ill. 1996),
quoting Chemical Waste Management, Inc., v. Sims,
875 F.Supp. 501, 504-05 (N.D. Ill. 1995). In determining whether
a party has waived a conflict based on delay, the Court considers the
length of the delay, when the movant learned of the delay, the reason
for the delay, whether the movant was pro se during the delay,
and whether the disqualification would result in prejudice to the
nonmoving party. See Continental Holdings, Inc., 1996 WL 385346
at *1 (citations omitted).
Here, Plaintiff contacted Hartmann on March 25, 2003 following
her termination from Suburban. Hartmann informed Plaintiff at
that time that he represented Suburban, and accordingly that she
should hire her own attorney. (Hartmann Affidavit, ¶ 9). Over the
next month, Hartmann negotiated with Plaintiff, and with Plaintiff's
counsel when obtained by Plaintiff, regarding Plaintiff's
severance package. The parties did not reach agreement on the
On April 28, 2003, Plaintiff's counsel, Lori Deem, sent
Hartmann a letter alleging that he had a conflict of interest due
to Hartmann's representation of Plaintiff in the Triplett
proceeding. The letter further stated that if Plaintiff filed an
EEOC charge, she expected the bank to engage new counsel. Id. ¶
10; Defendants Ex. J (1). Hartmann responded to Plaintiff's
counsel in a phone conference and confirmed in a May 9, 2003
letter that he did not have a conflict of interest because the
present dispute was not same or substantially related to his
prior joint representation of Plaintiff and Suburban on the
Triplett proceeding. Id.; Def. Ex. J(2). Plaintiff did not
respond to the letter and appeared to drop the subject
altogether. Plaintiff filed suit on December 30, 2003, and
Hartmann filed his first appearance on March 1, 2004. Plaintiff
did not raise any other objection to Hartmann serving as Defense
counsel until she filed the instant motion to disqualify on
December 3, 2004. See id. ¶ 11.
Thus, based on the evidence in the record, Plaintiff knew of a
potential conflict for approximately twenty months prior to
filing the motion to disqualify. Plaintiff was represented by
counsel for approximately nineteen of the twenty months.
Plaintiff has not provided any reasons for the delay in filing
the instant motion. Plaintiff responds in her reply memorandum that the Complaint was
filed only twelve months ago, and discovery did not start until
seven months ago. However, Plaintiff does not dispute that she
knew of the potential conflict for twenty months. Instead,
Plaintiff asserts that there would be minimal disruption and
prejudice because little discovery has been conducted due to the
joint motion for discovery extension and the protective order.
Hartmann conversely contends that there would be substantial
prejudice and hardship to his clients if he is disqualified.
Defendant has answered the complaint and the amended complaint,
and filed a motion to dismiss. The parties also negotiated a
protective order and plaintiff took one deposition. Further,
Hartmann attested that he has spent 190 hours on his activities
in connection with the case thus far, including conducting
numerous interviews, reviewing bank documents, preparing and
responding to interrogatories and document requests, addressing
the protective order, producing documents, meeting with the
witnesses identified by Plaintiff, and representing the one
witness deposed by Plaintiff. See Hartmann Aff., ¶ 12.
The Court agrees with Defendant that the disqualification of
Hartmann at this late date almost two years after Plaintiff's
termination would cause the Defendants substantial prejudice.
Plaintiff knew of the potential conflict and was represented by
counsel. Rather than object in a timely manner, Plaintiff allowed
the case to proceed with Hartmann investing time and energy representing Defendants in developing the case. The Court
concludes that Plaintiff has waived her right to object ...