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Village of Tinley Park v. Connolly

United States District Court, N.D. Illinois, Eastern Division

February 15, 2018

AMY CONNOLLY, Defendant.



         Following a series of events that resulted in the Village of Tinley Park (the “Village”) facing Fair Housing Lawsuits from housing developer Buckeye Community Hope Foundation and Buckeye Community Sixty Nine LP (jointly, “Buckeye”) as well as the United States, the Village brought this lawsuit against its former employee Amy Connolly alleging Connolly breached her fiduciary duties to the Village when she pushed a change to the Village's zoning plan through the Village Board. Connolly is represented by John Murphey, whom the Village now moves to disqualify [27] from the case because he previously engaged in privileged and confidential conversations with the now-former Mayor and City Manager of the Village regarding the substance of the lawsuits against Buckeye (the “Buckeye Case”) and the United States (the “DOJ Case”). The Court grants the Village's motion to disqualify Murphey because the Village reasonably believed Murphey was acting as its attorney when he provided advice to the now-former Mayor and City Manager regarding the Buckeye and DOJ Cases, and during that conversation he likely received confidential information relevant to the present case.


         Murphey has a long career representing various municipalities in the Chicago suburbs. In 2015, the Village retained Murphey to represent it in a group of lawsuits, unrelated to the present case in any way. All of these cases were dismissed on May 17, 2017, and Murphey is no longer representing the Village in any capacity. However, in 2016, while he was serving as the Village's attorney on these matters, both Buckeye and the Department of Justice (“DOJ”) sued the Village for alleged violations of federal fair housing laws. After DOJ filed its lawsuit against the Village, the Village Manager, David Neimeyer, contacted Murphey and set up a phone call for the purpose of discussing the DOJ Case. The call took place on December 9, 2016. In addition to Murphey and Neimeyer, the now-former Mayor of Tinley Park, David Seaman, was also on the call.

         The call lasted approximately twenty minutes, during which time the participants discussed the DOJ case and Neimeyer and Seaman provided Murphey with details regarding the Reserve development, which is the subject of both the DOJ and Buckeye Cases. They also provided him with details regarding the DOJ Case. During the conversation, Murphey advised the Village regarding how the DOJ typically handles such cases and at the end of the conversation, recommended the parties settle the matter quickly. Immediately following the call, Murphey sent an email to Neimeyer and Seaman, attaching a sample consent decree with the DOJ, to give them an idea of what a settlement would look like.

         In the weeks following the phone call, Murphey reached out to Neimeyer via email regarding the Buckeye Case and the DOJ Case. These emails were non-substantive in nature, simply inquiring whether the Village had engaged in settlement discussions with the DOJ and commenting on newspaper articles regarding the cases.

         The Village filed the present suit on May 1, 2017. Because the allegations in this suit relate to Connolly's employment with Tinley Park, the Intergovernmental Risk Management Agency (“IRMA”), of which Tinley Park is a member, provides her defense. IRMA retained Murphey to represent Connolly on June 8, 2017 and he filed his appearance on June 13, 2017. Shortly after being retained, Murphey filed a motion to dismiss and a motion to reassign the case to this Court because it is substantially related to the DOJ case currently proceeding before this Court. The parties completed briefing on the motion to dismiss on August 23, 2017, and the Village did not raise any motion to disqualify until now.

         The Village asserts that its attorneys did not become aware of Murphey's prior role in the DOJ Case until mid-September 2017, and two weeks after becoming aware, they contacted Murphey and asked him to withdraw from the case. Murphey refused this request, and on October 20, 2017, the Village filed the present motion seeking Murphey's disqualification.


         A motion to disqualify counsel requires a two-step analysis where the Court (1) considers whether there is an ethical violation and then, if so, (2) determines whether disqualification is appropriate to remedy the violation. alfaCTP Sys., Inc. v. Nierman, No. 15-cv-9338, 2016 WL 687281, at *4 (N.D.Ill. Feb. 19, 2016). Disqualification of counsel is a “drastic measure” imposed only “when absolutely necessary.” Black Rush Mining, LLC v. Black Panther Mining, 840 F.Supp.2d 1085, 1089 (N.D.Ill. 2012) (quoting Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)). Because disqualification deprives a party of the representation of their choosing, disqualification motions-although sometimes legitimate and necessary-are “viewed with extreme caution for they can be misused as techniques of harassment.” Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982). “There must be solid evidence to support an allegation of conflict.” Fematt v. Finnigan, No. 11-cv-1530, 2012 WL 3308759, at *2 (N.D.Ill. Aug. 13, 2012). The moving party therefore bears a heavy burden of proving the facts required for disqualification. alfaCTP Sys., Inc., 2016 WL 687281, at *4; Guillen v. City of Chicago, 956 F.Supp. 1416, 1421 (N.D.Ill. 1997).


         I. Disqualification

         The Village argues that the Court should disqualify Murphey from representing Connolly because the Village previously shared privileged and confidential information about the DOJ case with Murphey while believing that Murphey was acting as its attorney, and that the DOJ case is substantially related to this case, such that it presents an unresolvable conflict for Murphey. Connolly argues that Murphey never established an attorney-client relationship with the Village with respect to the DOJ case, and that the Village did not disclose any confidential information to him during his discussions with them regarding that case.

         ABA Model Rule of Professional Conduct 1.9 provides that a lawyer who “formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirm[ed] in writing.” Model Rules of Prof'l Conduct r. 1.9(a). The Court first must determine whether there was an attorney-client relationship between the Village and Murphey. See Fematt, 2012 WL 3308759, at *3 & n.1 (finding no error in magistrate judge's decision to address attorney-client relationship issue before substantially related test); Black Rush Mining, LLC, 840 F.Supp.2d at 1090 (analyzing attorney-client relationship first when determining whether client conflict existed). If ...

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