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Crowe v. Kearin

March 4, 2008


The opinion of the court was delivered by: John F. Grady, United States District Judge


Before the court is the motion of defendants John J. Kearin, Vincent Donofrio, and the City of Highwood to disqualify plaintiff's counsel. For the following reasons, the motion is granted.


This is an action that arises out of the August 2006 immobilization, or "booting," of plaintiff's vehicle by City of Highwood police officers. The vehicle was booted pursuant to the City's "Ordinance Amending the Traffic and Motor Vehicle Code of 1975 Regarding the Immobilization of Motor Vehicles for Unpaid Parking Tickets" (the "Booting Ordinance" or "Ordinance"). The First Amended Complaint names as defendants the City; John J. Kearin, the City's police chief; Vincent Donofrio, the City's mayor; Michael Zimmermann, a lawyer whose firm drafted the Booting Ordinance; and "unknown/unidentified" City police officers.

According to plaintiff, the Booting Ordinance cannot be applied retroactively to parking tickets incurred prior to its enactment. Plaintiff also complains that the Ordinance is unconstitutional for failure to provide due process; that he was deprived of a "pre-immobilization hearing" as provided for in the Ordinance; that defendants failed to comply with the ordinance in several other ways; and that defendants singled him out by demanding full payment of his parking tickets pursuant to the Ordinance while routinely settling other persons' tickets for lesser sums. Plaintiff claims that he has made numerous demands on the City, Kearin, Donofrio, and Zimmermann for the return of his vehicle and offered to settle the matter for $1,200.00, but the City "insist[s] on payment of thousands of dollars of fees" under the Ordinance "in order to release" the vehicle. (First Am. Compl. ¶¶ 28-31.) Plaintiff alleges various constitutional violations under § 1983 as well as several violations of state law.

Defendants now move to disqualify plaintiff's counsel, Paul P. Diambri, who formerly represented the City in a broad range of legal matters.


Defendants contend that Mr. Diambri is disqualified pursuant to Rule 83.51.9 of the Local Rules of Professional Conduct, which is titled "Conflict of Interest: Former Client." The relevant portion of the Rule states:

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 disclosure.

N.D. Ill. Local R. 83.51.9(a).

The burden is on the moving party to show facts necessitating disqualification. Amurol Confections Co. v. Morris Nat'l, Inc., No. 03 C 1264, 2003 WL 21321344, at *2 (N.D. Ill. June 5, 2003) (Grady, J.). When appropriate, disqualification protects the attorney-client relationship by ensuring that clients receive the undivided loyalty of their counsel. Id. At the same time, it is well settled that disqualification is a "drastic measure which courts should hesitate to impose except when absolutely necessary." Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993). Unwarranted disqualifications can create unnecessary delays and deprive parties of their chosen legal advisor. Amurol, 2003 WL 21321344, at *2. The Seventh Circuit has instructed that, although there obviously are situations where disqualification motions are both legitimate and necessary, such motions should be viewed with "extreme caution" because they can be misused in order to harass. See Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982).

The Seventh Circuit uses a three-part analysis to determine whether disqualification is warranted:

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 next ascertain whether the presumption of shared confidences with respect to the prior representation has been rebutted. If we conclude this presumption has not been rebutted, we must then determine whether the presumption of shared confidences has been rebutted with respect to the present representation. Failure to rebut this presumption would also make the disqualification proper. Cromley v. Board of Educ., 17 F.3d 1059, 1064 (7th Cir. 1994) (quoting Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)). This analysis embodies two principles of professional responsibility: protecting a client's confidences from disclosure and possible use against him as well as avoiding the appearance of impropriety. LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252, 255 (7th Cir. 1983).

Our first step, therefore, is to determine whether a "substantial relationship" exists between the subject matter of Mr. Diambri's prior and present representations. This inquiry involves factually reconstructing the scope of the prior legal representation as well as determining whether it is reasonable to infer that confidential information would have been given to a lawyer representing a client in those ...

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