Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO a municipal corporation, Defendant. ______________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO DISQUALIFY AND DEFENDANT'S MOTION TO QUASH SUBPEONAS FOR JOHN REDMOND AND JACK WESOKY ______________________________________________________________________ Defendant, City and County of Denver (hereafter "City"), by its attorneys, submits this Response to Plaintiff's Motion to Disqualify Office of Denver City Attorney and Motion to Quash Subpoenas for Assistant City Attorneys John Redmond and Jack Wesoky.1 In compliance with D.C. Colo.LCivR. 7.1 (A), the undersigned certifies that he attempted to consult with opposing counsel concerning the subject of this motion via telephone and was unsuccessful in doing so. In support of its Response and its Motion, the City states the following: INTRODUCTION

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Denver recognizes that D.C.COLO.L.CivR 7.2 C provides that a motion shall not be included in a response to an original motion. However, because serving subpoenas on opposing counsel is equivalent to a motion to disqualify, Denver addresses both the motion to disqualify and it motion to quash in this singular pleading.

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Plaintiff's last minute effort to disqualify the Denver City Attorney's Office (hereafter "CAO") from further activity in this case is yet another desperate attempt to continue the trial scheduled to begin in just three business days. Despite his representations that he wants to avoid "further delay of this trial," Plaintiff is seeking the remedy of disqualification because the effect such relief would have is continuing the trial with the possibility of reopening discovery ­ the ultimate outcome Plaintiff seeks. Plaintiff's Motion to Disqualify should be denied with prejudice because he cannot meet his evidentiary burden in proving that Assistant City Attorneys John Redmond and Jack Wesoky are "necessary witnesses" as required by C.R.P.C. 3.7. Further, this belated motion should be denied because a disqualification would "work a substantial hardship on the client" in forcing Denver to incur exorbitant legal fees in obtaining outside counsel to represent it at this late stage of the litigation. Indeed, Magistrate Judge Shaffer told Plaintiff to file his motion back in April and yet he waits until Saturday 10 June to do so. See Exhibit No. 1, Courtroom Minutes, 17 April 2006. Yesterday 13 June 2006, Plaintiff's counsel served trial subpoenas on Assistant City Attorneys Redmond and Wesoky. Because service of a subpoena on a party's counsel is tantamount to a Motion to Disqualify, Denver incorporates its arguments for quashing these subpoenas into this pleading. ARGUMENT I. Legal Standard and Plaintiff's Burden of Proof

Under Rule 3.7, a lawyer may be disqualified from representation if he is a necessary witness and if such disqualification is a substantial hardship on the client.

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The issue of attorney-witnesses is controlled by C.R.P.C. Rule 3.7 and case law. A motion to disqualify "rests within the sound discretion of the trial court," Quark Inc. v. Power Up Software Corp., 812 F.Supp. 178, 179 (D. Colo. 1992), with movant, Plaintiff here, bearing the burden to establish the grounds for disqualification. World Youth Day, Inc. v. Famous Artists Merchandising Exchange, 866 F. Supp. 1297, 1299 (D. Colo. 1994). "A disqualification should be ordered only where the claimed violation in some

way `taints' the trial or the legal system." Merrill Lynch Bus. Financial Services, Inc. v. Nudell, 239 F.Supp. 2d 1170, 1174 (D. Colo. 2003); see also Taylor v. Grogan, 900 P.2d 60, 63 (Colo. 1995). The Court must balance the interest of the respondent's client with that of the movant. See Religious Technology Center v. F.A.C.T.Net, Inc., 945 F.Supp. 1470,1474 (D. Colo, 1996) citing Quark at 179, and evaluate if the movant "is likely to suffer prejudice, the importance and probable tenor of the lawyer's testimony and the probability that the lawyer's testimony will conflict with that of other witnesses." Id. This balancing test further requires the Court to evaluate that "even if there is a risk of such prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer's client." Id. (Emphasis added). The court "must make specific findings and conclusions" to support its ruling. Id. at 1473. II. Assistant City Attorneys as "Necessary Witnesses" A. Assistant City Attorney John Redmond

Plaintiff's request for disqualification relies in part on his mischaracterization of Mr. Redmond as a "necessary witness." The allegations for this mischaracterization

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include: 1) Denver's handling of the criminal prosecution of Plaintiff, 2) the allegation that Denver sought a successful criminal prosecution of the Plaintiff to "extort" an advantage of him in civil proceedings, 3) the communications between Mr. Redmond and officials from the Denver Fire Department during the criminal prosecution of the Plaintiff, and 4) the admission of a witness to Mr. Redmond that evidence was destroyed by a supermarket manager where this incident occurred. See Plaintiff's Motion to Disqualify (hereafter "Motion"), pp. 3-4, ¶7. A "necessary witness" is one whose "proposed testimony is relevant, material, not merely cumulative, and unattainable elsewhere." See Merrill Lynch Bus. Financial Services, Inc. v. Nudell, 239 F.Supp. 2d 1170 at 1173; See Religious Technology Center v. F.A.C.T.Net, Inc., 945 F.Supp. 1470 at 1474. Plaintiff points to no evidence to prove that Mr. Redmond's actions are relevant or material to proving his remaining legal claims: age discrimination and substantive due process. He makes only unsubstantiated allegations. Assuming arguendo that Mr. Redmond was solely responsible for prosecuting Plaintiff, there is no evidence to show how any of Mr. Redmond's decisions are relevant to prove that these decisions were the "determinative factor" in Plaintiff proving his age claim against Denver. The irrelevancy of Mr. Redmond's role is underscored by the fact that the decision to terminate Plaintiff was made on 03 January 2003 ­ a full four months before Mr. Redmond presented the criminal case before a jury on 07 May 2003. (Emphasis added). Mr. Redmond's testimony is neither relevant nor material to Plaintiff's age claim and therefore he is not a necessary witness under 3.7.

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Mr. Redmond's testimony is also irrelevant and immaterial to prove Plaintiff's substantive due process claim as well. As the parties have stipulated in the Final Pretrial Order ("PTO"), the Civil Service Commission (hereafter "Commission") is the final policy-maker for the Plaintiff's substantive due process claim. See PTO, p.16, ¶4. See also Second Amended Complaint, Third Claim for Relief, pp. 30-34. And, as the Court recognized in its' Order Re: Cross Motions for Summary Judgment, Plaintiff's substantive due process claim was based on his substantive rights, if any, in public employment. See Order p. 6, n.3 Aside from Mr. Redmond's testimony during the administrative hearing before the Civil Service Commission Hearing Officer, Plaintiff offers nothing to show that Mr. Redmond had any communications with the Hearing Officer or the Commission urging either not to reinstate Plaintiff. Moreover, a review of both the Hearing Officer's and Commission's decisions show that they were based on the state's old firefighter's pension statute which is a question of law that Mr. Redmond, as a prosecutor, is not qualified to opine.2 Because Mr. Redmond's testimony is not relevant or material to the Plaintiff's remaining legal claims, he is not a necessary witness under Rule 3.7. B. Assistant City Attorney Jack Wesoky

Plaintiff attempts to ensnare Mr. Wesoky as a "necessary witness" by alleging that he: 1) is knowledgeable about recent allegations concerning Civil Service Commission Chairman Chris Olson, 2) is knowledgeable about the City Attorney's

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Although the CAO originally endorsed Mr. Redmond as a witness, it quickly remedied its error by notifying counsel by telephone and later by Magistrate Judge Shaffer in April that we would not be calling him as a witness.

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Office's treatment of recently convicted firefighter Stan Ford, 3) communicated with the Denver Fire Department as its "in-house" counsel about Plaintiff's retirement paperwork, 4) is responsible for attempting to extort Plaintiff into withdrawing his appeal, and 5) participated in a conspiracy with the Commission to fabricate a legal pretext for firing Plaintiff. See Motion, pp. 4-5, ¶8.3 The only "evidence" Plaintiff proffers regarding the above allegations are two benign e-mail communications between Mr. Wesoky and Denver Fire Department administrative staff See Plaintiff Ex. E. One deals with a telephone scheduling conference for the Commission hearing in which he advises Karen McNeil of the Fire Department administrative staff that she need not be present on the teleconference. The second e-mail which is not from Mr. Wesoky simply advises Ms. McNeil to keep Mr. Wesoky apprised of the status of Plaintiff's "retirement." These are both administrative communications not going to the substance of any legal issue and accordingly are not relevant or material for the issues in this case: age discrimination in Plaintiff's termination and a substantive due process claim based on the Commission's decision that Plaintiff could not be reinstated. These e-mails do not make Mr. Wesoky a "necessary witness" under Rule 3.7. Moreover, Plaintiff's allegation of Mr. Wesoky's "conspiracy" with the Commission to seize upon a pretext to defeat Plaintiff's appeal "and deprive him of a remedy" is an indirect reference to Mr. Wesoky's successful legal arguments to persuade the Hearing
In addition, Plaintiff's claim that Mr. Wesoky and the CAO may have information (and therefore are necessary witnesses) regarding Chris Olson and the Englewood matter, and Stan Ford, is meritless and has been addressed in the Denver's response to Plaintiff's motion to continue the trial.
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Officer and the Commission that it lacked jurisdiction under the state law to reinstate Plaintiff due to his voluntary retirement. Plaintiff offers no legal authority to support his position that an attorney's argument in one legal venue automatically transforms the attorney into a "necessary witness" in subsequent proceedings. Despite Plaintiff's knowledge of these e-mails some six months ago and the fact that Mr. Wesoky represented Denver before the Commission, Plaintiff did not list Mr. Wesoky as a witness in the Pretrial Order. See PTO, pp. 23-45. The Court Order made clear to the parties that "it will control the subsequent course of this action and the trial." Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (issues and defenses not included in the final pretrial order are waived.) Plaintiff's charge that Mr. Wesoky attempted to extort Plaintiff into withdrawing his appeal is a replay of an old card. Plaintiff tried the same maneuver in the Civil Service Commission Hearing but failed when the truth came out. Plaintiff, through his counsel, was made the offer that in exchange for withdrawing his appeal he could submit a letter of resignation and the disciplinary termination would be removed from his file. See Exhibit No. 2, excerpt from Civil Service Commission Hearing. Plaintiff's mere assertions are not enough to meet his burden to show that Messrs. Redmond and Wesoky are "necessary witnesses" as defined under Rule 3.7 and the relevant case law. III. Disqualification of CAO on the Eve of Trial Would "Work a Substantial Hardship on the Client"

The CAO is prepared to represent the City at trial scheduled to start five days from today. The CAO has handled the administrative appeals in front of the

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Commission as well as all pretrial matters in this litigation ­ discovery, motion practice, settlement discussions and conferences. Disqualification of the CAO from further representation in this case would pose a "substantial hardship" to Denver because it would be forced to spend thousands of dollars for outside counsel fees and costs so close to trial. C.R.P.C. Rule 3.7 (a) (3) provides that where "disqualification of the lawyer would work substantial hardship on the client," disqualification is not appropriate. Contrary to Plaintiff's allegation that Denver's "massive bureaucracy" and penchant for "wasteful expenditures" forecloses it from claiming "substantial hardship," Denver maintains a budget for outside counsel. Exhibit No. 3, Affidavit of Deputy City Attorney Michelle Lucero. To retain outside counsel at this point on the eve of trial after all trial preparation has been completed would cost at least $100,000 in public funds and unnecessarily deplete Denver's and the CAO's budget. Id. The impact of a disqualification and the concomitant expenditure on outside counsel clearly places disqualification of the City Attorney's Office within Rule 3.7. (a) (3)'s category of "substantial hardship." Moreover, the risk of prejudice to Plaintiff of the CAO's continued representation on the basis of unsubstantiated claims when compared to the onerous expenditure the City would occur if the CAO is removed clearly tips the balancing test, in which the Court must engage, in favor of denying disqualification.4

Compare Religious Technology Center v. F.A.C.T.Net, Inc., 945 F.Supp. 1470, 1473 (D. Colo, 1996) (Court denied disqualification under 3.7 (a)(3) in part because the defendant had already spent $1.4 million in defending itself in litigation) with Merrill Lynch Bus. Financial Services, Inc. v. Nudell, 239

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IV.

C.R.P.C. Rules 1.7 and 1.10 Do Not Support Disqualification

Plaintiff cites to C.R.C.P. Rules 1.7 and 1.10 as additional authority to seek disqualification of the CAO in this lawsuit. C.R.P.C Rule 1.7 forbids attorney representation of a client when such representation will be directly adverse to another client or where such representation of the client is "materially limited" by responsibilities to another client or third person. C.P.R.C. Rule 1.10 refers to imputed disqualification of a law firm where the conditions forbidding representation under Rule 1.7 are met. Aside from allegations of conspiracies between or among the CAO, Denver Fire Department, and Civil Service Commission, Plaintiff proffers no evidence to show how the CAO's continued representation of Denver is "directly adverse" to other clients represented by this office. Furthermore, there is no evidence to show how Denver's representation in this case is "materially limited" by CAO responsibilities to another client. Because the Plaintiff cannot meet his burden in proving that either Rules 1.7 or 1.10 prohibits CAO representation in this matter, his motion should be denied. V. Disqualification is a "Drastic Measure"

Disqualification of the City Attorney's Office is a "drastic measure" ­ especially at this late stage in the litigation. See Owen v. Wagerin, 985 F.2d 312, 317 (7th Cir. 1993) quoting from inter alia Schlessie v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983) ("It is well settled that attorney disqualification is a drastic measure which courts should hesitate to impose except when absolutely necessary.") And, "disqualification should be ordered only where the claimed violation in some way `taints' the trial or the legal
F.Supp. 2d 1170, 1174 (D. Colo. 2003) (Court denied plaintiff's "substantial hardship" claim because they proffered no evidence to prove this claim).

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system." See Merrill Lynch Bus. Financial Services, Inc. v. Nudell, 239 F.Supp. 2d 1170 at 1174. Plaintiff has made no credible showing that a legitimate violation of the Code of Professional Responsibility has occurred or will in the future. This is especially true in light of the fact that none of the alleged testimony from Assistant City Attorneys Redmond and Wesoky is relevant and material to prove any of Plaintiff's claims. Because there is no showing from Plaintiff as to how the CAO's actions will taint him at trial, this Court should deny his request for this drastic remedy. CONCLUSION Plaintiff's disqualification motion serves as the final piece in his triad of Motions (Motion to Continue, Motion to Re-Open Discovery, and the present motion) designed to continue the Monday trial date. This motion, like the proceeding motions, has no merit. WHEREFORE, Plaintiff's Motion should be denied and the City awarded its attorney's fees in responding to the Motion. Respectfully submitted this _____ of June, 2006. CHRISTOPHER M.A. LUJAN Assistant City Attorney By: s/ Christopher M.A. Lujan Christopher M.A. Lujan Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720-913-3100 Facsimile: 720-913-3190 E-Mail: [email protected] ATTORNEY FOR DEFENDANT

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CERTIFICATE OF MAILING I certify that on June ___, 2006, I electronically filed the foregoing DENVER'S RESPONSE TO PLAINTIFF'S MOTION TO DISQUALIFY AND DENVER'S MOTION TO QUASH SUBPEONAS FOR JOHN REDMOND AND JACK WESOKY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee ST. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204 s/ Cristina Helm_________________ Cristina Helm, Legal Secretary OFFICE OF THE CITY ATTORNEY

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