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Jose Fematt v. Jerome Finnigan

August 13, 2012

JOSE FEMATT, PLAINTIFF,
v.
JEROME FINNIGAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' motion [106] to set aside Magistrate Keys' order [104], entered on May 9, 2012. For the reasons set forth below, the Court denies Defendants' motion [106] and upholds Judge Keys' order [104].

I. Background

Plaintiff's counsel, Torreya Hamilton, worked for the City of Chicago for three of her seventeen years practicing law. See Transcript of Evidentiary Hearing ("Trans.") at 54-55. From 2003 to 2006, Hamilton worked for the Corporation Counsel's office representing individual police officers in civil rights cases. Trans. at 54-55. Since 2007, Hamilton has maintained her own law practice as a plaintiffs' civil rights attorney. Id. at 56. On March 4, 2011, Hamilton filed a lawsuit on behalf of Plaintiff Jose Fematt and against the City of Chicago and Defendant Officers Margaret Hopkins, Donovan Markiewicz, Jerome Finnigan, Keith Herrera, Timothy Parker, William Morales, and Paul Zogg. On November 2, 2011, Defendants Parker, Morales, and Zogg filed a motion to disqualify Plaintiff's counsel, which Defendant Herrera later joined. The City of Chicago and Defendants Hopkins, Finnigan, and Markiewicz did not join in the motion.

Corporation counsel attorneys maintained that Plaintiff's counsel should be disqualified because she previously represented Defendant Officers Finnigan and Herrera while she was employed at the Corporation Counsel's office in a case entitled Glover v. City of Chicago, 04 CV 7655. Hamilton has maintained that she never represented any of the Defendant Officers in the Glover case. On April 16, 2012, Judge Keys held an evidentiary hearing on the Corporation Counsel's motion to disqualify Hamilton. Based on the evidence adduced at the hearing, it is undisputed that Hamilton did not file an appearance, author any documents, appear in court, or outwardly participate in the Glover litigation in any manner. Trans. at 39-40. It also is undisputed that Hamilton did not have contact with any of the Defendants in Glover. Id. at 40,

44. The only evidence that Defendants presented in support of disqualification is a conversation that allegedly occurred in 2005 as Hamilton was standing in the doorway of a co-worker's office. Id. at pp. 17-20. The co-worker does not recall the specifics of the conversation or if he ever spoke to Defendants Finnigan or Herrera prior to his conversation with Hamilton. Id. at 17-19,

32. After hearing evidence and judging the credibility of the witnesses, Judge Keys denied the Corporation Counsel's motion on May 9, 2012. Dkt. 104. Defendants Zogg, Parker and Morales now ask the Court to set aside Judge Keys' ruling.

II. Standard of Review

Because Judge Keys ruling that Plaintiff's counsel should not be disqualified is not case dispositive, Fed. R. Civ. P. 72(a) provides the appropriate standard of review. See, e.g., Royal Maccabees Life Ins. Co. v. Malachinski, 2001 WL 290308, at *10 (N.D. Ill. Mar. 20, 2001). Under this standard, a magistrate judge's ruling will be set aside only if it is "clearly erroneous or contrary to law." Hall v. Norfolk Southern Ry. Co.,469 F.3d 590, 595 (7th Cir. 2006); see also Weeks v. Samsung Heavy Industries Co., Ltd.,126 F.3d 926, 943 (7th Cir. 1997) (holding that under the clear error standard of review, "the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made").

III. Analysis

In considering motions to disqualify, courts must balance two important considerations: "the sacrosanct privacy of the attorney-client relationship (and the professional integrity implicated by that relationship) and the prerogative of a party to proceed with counsel of its choice." Schiessle v. Stephens, 717 F.2d 417, 419-20 (7th Cir. 1983). The Seventh Circuit has "continuously maintained" that, in achieving that balance, it is important to bear in mind that "disqualification is a 'drastic measure which courts should hesitate to impose except when absolutely necessary.'" Id. (citation omitted); see also Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982) (emphasizing that motions for disqualification "should be viewed with extreme caution for they can be misused as techniques of harassment"). "Accordingly, the burden is on the moving party to show the facts warranting disqualification." Van Jackson v. Check 'N Go of Illinois, Inc., 114 F. Supp. 2d 731, 732 (N.D. Ill. 2000). There must be solid evidence to support an allegation of conflict. "The possible appearance of impropriety * * * is simply too weak and too slender a reed on which to rest a disqualification order * * * particularly where the mere appearance of impropriety is far from clear." Freeman, 689 F.2d at 723.

The question before Judge Keys was whether Hamilton ever formed an attorney-client relationship with Defendant Officers Finnigan and Herrera. Defendants say that a relationship with formed, and therefore argue that Judge Keys should have conducted an analysis pursuant to ABA Model Rule of Professional Conduct 1.9, entitled "Duties to Former Clients"; Plaintiff maintains that there was no prior relationship, and therefore a conflict does not exist under Rule 1.9. Rule 1.9 applies to a lawyer's duty to her former clients and is not triggered unless an attorney-client relationship was previously been established. See Hughes v. Paine, Webber, Jackson & Curtis Inc., 565 F. Supp. 663, 667 (N.D. Ill. 1983) ("Before an attorney becomes subject to the obligations of the Code [of Professional Responsibility], an attorney-client relationship must be found to exist."). Magistrate Keys' analysis primarily focused on the initial inquiry-whether a relationship existed-because if no attorney-client relationship existed, then the analysis ends there. Defendants urge this Court to set Judge Keys' ruling aside because according to them, he did not engage in the proper analysis. Plaintiff argues that the analysis urged by Defendants presupposes a prior attorney-client relationship, which Judge Keys found did not exist on these facts.

"An attorney-client relationship exists when the lay party submits confidential information to the law party with reasonable belief that the latter is acting as the former's attorney." International Paper Co. v. Lloyd Mfg. Co., 555 F. Supp. 125, 132 (N.D. Ill. 1982) (citing Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1321 (7th Cir. 1978)). An express contractual attorney-client relationship need not have formed, but the individual must have consulted the lawyer with the intention of seeking legal advice. Id. at 667-68. Defendants argue that an e-mail assigning the Glover case to Hamilton created the attorney-client relationship in this case and that it was further developed during a two-minute conversation between Hamilton and assistant corporation counsel Engquist, in which Engquist notified Hamilton that the case was settling.

After presiding over an evidentiary hearing, Magistrate Keys concluded that no attorney-client relationship ever existed between Hamilton and Defendant Officers Finnigan and Herrera: "[A]fter reading the parties' briefs, as well as holding an evidentiary hearing on the matter, the Court is unpersuaded that Ms. Hamilton ever 'represented' officers Keith Herrera and Jerome Finnigan." [104 at 5]. Because Magistrate Keys found that Hamilton never represented Defendant Officers, he did not proceed with the ...


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