Free Motion to Disqualify Counsel - District Court of Colorado - Colorado

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

Document 124

Filed 06/10/2006

Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, JAMES A. SESTRICH, KELLEY S. CALDWELL, JOSEPH R. HART and FRANK J. HOFFMAN, Defendants.

PLAINTIFF' MOTION TO DISQUALIFY OFFICE OF DENVER CITY ATTORNEY S

Plaintiff William R. Cadorna ("lni o " Cadorna"hereby moves in Pa t " rMr. if f ) accordance with Colo.R.P.C. 1.7, 1.10 and 3.7 for disqualification of the Office of the City Attorney, City and County o D n e ( i"a atre fr ee d n Ct a d f e v r" t ) s t n y o D fn a t i n Cy o y County of Denver, or for any individual Defendants in this action. Because of the obvious urgency of this matter, Plaintiff requests that Defendant(s) be required to file an immediate response, in lieu of adherence to the usual deadlines for responses to motions. As grounds for this motion, Plaintiff states: 1. 2. Trial of this matter is scheduled to begin June 19, 2006. On Thursday, June 8th, this Court issued its Order re: Cross-Motions for

Summary Judgme td mi i Pa t 'A Aa dpo e ua d epo e s 1 8 n, i s n lnis D n rc d rl u rc s § 9 3 s sg if f c i , u d n i D fn a t i'Moi fr u lms b t e y g ee d n Cts t n o S mmay u g n o Pa t 'A E a n y o r J d me t n lnis D A if f

1

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

Document 124

Filed 06/10/2006

Page 2 of 16

and §1983 substantive due process claims. Though Plaintiff respectfully differs with teC ut c n t h o rs o s uction and application of the ADA and Constitutional procedural due ' r po e s e u e ns Pa t fl rs e t teC ut d c i , n d e l rc s rq i me t lni uy e p c h o rs e io a d e p r , if l f s ' sn y appreciates the impressive thoughtfulness, intelligence, and care with which the Court approached the difficu i u s rs ne b tep re 'rs-motions. ls e pe e td y h at sco s ts i 3. On June 7, 2006, Plaintiff filed his Motion for Continuance of Trial, Re-

Opening of Discovery. Because of the relevance of statements or evidence submitted in support of that Motion, Plaintiff hereby incorporates that Motion, and attached exhibits, into this Motion as if fully set forth herein. 4. In the April Final Pre-Trial Conference, the Magistrate Judge alerted the

parties to his concern that, because both parties had listed Asst. City Attorney John Redmond (who prosecuted Plaintiff for shoplifting) a awte s teCt Atre ' s i s,h i t n y n y o s Office may be subject to a Motion for Disqualification. The Magistrate Judge instructed Pa t 'c u s l a a y u hmoi w u h v t c mef m Pa t , lnis o n e t t n s c if f h tn o l ae o o o d r o lni if f notwithstanding the independent obligation of the City Attorney to comply with the Colorado Rules of Professional Conduct. 5. Because he did not wish to further delay the trial of this action on that

basis alone, Plaintiff did not a toi Pa t 'c u s l file a Motion to Disqualify the uh r e lnis o n e to z if f City Attorney'O feon the basis that John Redmond is a necessary witness. Though s f i c R d n me t ted f i no "e e s r wte s u d r o .... ., n e mo d es h eit fn c say i s" n e C l RPC 37 a d ni o n o R d n 'tsmo y n e co s e mo d e t n u d r rs-examination would be very helpful to his case, s i Plaintiff preferred avoidance of further delay in trial.

2

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

Document 124

Filed 06/10/2006

Page 3 of 16

6.

In view of the recent disclosures concerning the Stan Ford case and

investigation by the Denver City Attorney of misconduct by Civil Service Commission Chairman Christopher Olson, which necessitate continuance of trial (for the reasons s tdi Pa t 'J n 7 2 0 Moi fr o t u n ea dt R -Open Discovery), t e n lnis u e , 0 6 t n o C ni a c n o e a if f o n Plaintiff is no longer constrained by the same concern for avoiding delay of trial. Delay of trial is now absolutely essential to permit Plaintiff to obtain crucial evidence s p ot gPa t 'substantive due process and age discrimination claims. u p rn lnis i if f 7. John Redmond is a necessary witness with respect to at least the

following crucial matters related to Plaintiff's b tni d epo e s n A E c i : s u s te u rc s a d D A lms a v a (a) the decision of the Office of the City Attorney to prosecute Plaintiff for shoplifting notwithstanding its awareness before and after the first criminal trial on May 7, 2003 that Safeway clerk Kevin McKee had expressly or impliedly permitted Plaintiff to take the cookbook on December 7, 2002 without paying for it, and how this prosecution decision compares with many other theft prosecutions in which the City Attorney has declined to prosecute; (b) the decision o teCt Atre 'O fet prosecute Plaintiff fh i t n y fc o y o s i d s i R d n 'rs rai s b u teq at o tee i n e ()h d c i o e p e e mo d e ev t n a o th u l fh v e c ;c te e io f t s o i y d sn teCt Atre 'O fet pe s ow r wt Pa t 'po e ui h i t n y f o rs fr ad i lnis rs c t neven after the first y o s i c h if f o trial, on May 7, 2003, ended in hung jury and mistrial; (d) the decision of the City to abuse its prosecutorial power to extort an advantage from Plaintiff in civil proceedings, b pe s gfr adwt Pa t 'po e ui e e while his Civil Service appeal was y rsi ow r i lnis rs c t n v n n h if f o pending, even while Asst. City Attorney Jack Wesoky was attempting to persuade Plaintiff (who was unrepresented) to withdraw his Civil Service Commission appeal in

3

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

Document 124

Filed 06/10/2006

Page 4 of 16

exchange for exactly nothing, and even while the Fire Department Human Resources Bureau, in consultation with Asst. City Attorney Jack Wesoky, was encouraging Plaintiff to take a disability retirement wto t i l i teCt Atre 'i e t nt u eh i u d c s g h i t n y n ni o s i h son y o s t o s d i s a go n s o frc s gPa t 'ri ttme t(e) e mo d n n o g o s ru d froe l i lnis e s e n; R d n ' o n on if f na s privileged communications with key witnesses, Fire Department Officials (who were not R d n 'ce t i h rl a Po e uo)me es fh Ct Atre 'O fe e mo d lnsn i o s rs c tr s i s e , mb r o te i t n y fc y o s i Employment Law Division (who were neither co-counsel with a common, lawful interest n r e mo d ce in his role as Prosecutor), or others concerning the evidence o R d n ' lnts s i against Plaintiff or the requirement that he continue with prosecution of Plaintiff despite the quality of the evidence; (f) Mi Bo n a mi i t R d n and Hart that a k rw ' d s o o e mo d e s sn copy of the cook o k e r gPa t 'i ni ai h db e fu di tes r b o b ai lnisd tc t n a e n o n n h t ein n if e f o f i o December, 2002, a dta Bo nd s o e tep g b ai Pa t 'i ni ai n h t rw e t y d h a e e r g lnisd tc t n r n if e f o f i (see Hart CSC Hearing Testimony, pp. 392-407, attached). 8. In addition to Redmond, other members of th D n e Ct Atre ' e e vr i t n y y o s
1

Office, including but not limited to Jack Wesoky, are necessary witnesses with respect t a l s teflwn cu i matr rl e t Pa t 's b tni d epo e s n o t a th oo i rc l t s e td o lnis u s te u rc s a d e l g a e a if f a v ADEA claims: (1) the recently reported investigation by the City Attorney of Civil Service Commission decisions, presumably including Pa t ' ta ma h v b e ti e b lnis h t y a e e n a td y if, f n Cv S ri C mmi i C a ma C r tp e Os n p rc ai ;2 p rc ai il ev e o s o h i n hio h r l ' ati t n () ati t n i c sn r s os ip o ip o o teCt Atre 'ofei teSa Ford case and the discriminatory decision to fh i t n y f n h tn y o s i c

1

As distinguished from the unlawful, indeed, unconstitutional interest they shared in laying the groundwork through malicious prosecution and abuse of process for depi t n f ln fsi tudr n -discrimination statutes and r ao o Pa tf r h ne at vi i i' g s i the Fourteenth Amendment guarantee of substantive due process.

4

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

Document 124

Filed 06/10/2006

Page 5 of 16

merely suspend Ford rather than immediately terminate him; (3) the participation of the Ct Atre 'ofei a a p rn c n p a y o i u ePa t t rtewt te i t n y f n n p ae t o s i c t: d c lni o ei i h y o s i c r n if f r h threat of termination; terminate Plaintiff on the basis of false evidence in order to compel his age and service retirement; induce Plaintiff after his age and service termination to apply for disability retirement, then use it to dispute his right to full relief for his unlawful termination [see copies of e-mails among DFD Human Resources p ro n l n J c We o y o c ri teh n lgo Pa t 'rte n es n e a d a k s k c n en g h a dn f lnis ei me t n i if f r applications and his pending Civil Service Commission appeal, Exh. Et Pa t ' o lnis if f Motion to Continue and Re-Open Discovery]; (4) participation of the Denver City Atre 'O fei ac n p a y ou eunfounded criminal proceedings against Plaintiff t n y f n o si c t s o s i c r to extort him into withdrawing his Civil Service Commission appeal; (5) participation of teCt Atre 'O fea dCv S rice Commission personnel or officials, all of h i t ny f y o s i n il ev c i which are City employees, in a conspiracy to seize upon a known falsehood (pretext), ta Pa t a pe frei me tpi t d mi a t d fa Pa t 'a p a a d h t lni p ld o rte n "r ro i s l o ee t lnis p e l n if f i r o s s" if f deprive him of a remedy for his unlawful discharge in violation of his substantive due process rights. Archuleta v. Colorado Dept. of Corrections, 936 F.2d 483 (10th Cir. 1991). 9. Redmond and Wesoky are necessary witnesses within the meaning of

Colo.R.P.C. 3.7(a) because none of the three exceptions enumerated in that rule applies. 10. First, their testimony will not relate to an uncontested issue, as it would

extend well beyond the simple question of whether the City did or did not prosecute

5

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

Document 124

Filed 06/10/2006

Page 6 of 16

Mike Brown for perjury or obstruction of justice, which the City admits (See Answer to Second Amended Complaint, paragraph 58), or whether Plaintiff did or did not apply for rte n "r rod mi a , h hteCt a oa mi ( Answer to Second ei me tpi t i s l w i h i l d t See r o s s" c y s s Amended Complaint, admitting in whole or in part paragraphs 37, 44, 64, 65, 67, 68-71, 73-77, 95-98, 103-107), and is not cumulative of other testimony. 11. services. 12. Third, disqualification would not work a substantial hardship on th Cts e i' y Second, their testimony does not relate to the nature or value of legal

massive bureaucracy, as it has the benefit of numerous competent employment attorneys2 to step in for Mr. Wesoky, as evidenced by the very recent appearance of Mr. Lujan as additional counsel in this case3. 13. Of course, Plaintiff understands that the role of Messrs. Redmond and/or

Wesoky as necessary witnesses within the meaning of Colo.R.P.C. 3.7(a) does not by imputation automatically disqualify the entire Ct Atre 'O fefrom representing i t ny f y o s i c the City. 14. Automatic disqualification of the enti "r o a" w e-wte s i s c r fm" f l y r i s"n u h e i a n

circumstances was once mandatory, but is no longer. Fognani v. Young, 115 P.3d 1268, 1277 (Colo. 2005); Taylor v. Grogan, 900 P.2d 60 (Colo. 1995); People ex rel. Woodard v. District Court, 704 P.2d 851 (Colo. 1985); Williams v. District Court, 700

2

T e not a r io t Ct s o p tl k f en guacut itfr at uepni r t cvr p h ufr nt ec fh i 'cm lea o m ai flcon b i o w s flxed ue o oe u u e l e y e c n a ly e t s the incompetence, cravenness, or corruption of its elected or appointed officials. 3 Presumably because Mr. Wesoky might soon metamorphosize into a most exotic creature: the lawyer-witness.

6

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

Document 124

Filed 06/10/2006

Page 7 of 16

P.2d 549 (Colo. 1985); See, also CBA Ethics Opinion No. 78, " i u lc t no te Ds afai fh q i o i A v c t/ te s. d o aeWi s" n 15. Instead, Colo.R.P.C. 3.7(b) applies a presumption of disqualification of the

e te"r :" l y r h l o act as advocate in a trial in which another lawyer in the ni fm" A a e s a n t r i w l l y r fm ile t b c lda awte s n s terq i me t o Rule 1.7 or a e' i si l o e ae s i s u l s h e u e ns f w sr ky l n e r 19h v b e me. . ae e n t " 16. Conditioning continued representation by a lawyer-wite sfm o " r" n s'r n mee i

compliance with Colo.R.P.C. 1.7 (or 1.9, which appears less applicable in this instance) seems to render the C l a oS pe C ut s e n ls i e t o rd u rme o rs e mi y tn n presumption of o ' g rg disqualification meaningless, as it appears upon first glance to require little more than the cli t c n e toc ni e rpe e tt nb tefm. e ' o s n t o t u d e rs nai y h i ns n o r 17. Whoever in the City has the Authority to grant such consent4 would

undoubtedly ga t wto t e i t n i fr ea c o teCts o l f b s g rn i i u h sai , ut rn e fh i'g a o a u i t h to n h y n Pa t 'r hs e p s tep i a w i a private, profit-minded employer would find lnis i t w l a th o t t h if g f l n ch the i rme tlo t atre 'fe , and potential cost in damages, to be untenable. n e na c s i t n y e s c n o s 18. This is where Colo.R.P.C. 1.10 comes in. (See Ethics Opinion 78, Section

5, "i r u Ds u lc t n). Like Colo.R.P.C. 3.7, Rule 1.10 appears to give the Vc i s i afai " ao q i o i lawyer-wte sfm a " i s'r n easy out"R l 17 ce t o s n e c pi . n i : u .' ln c n e t xe t n e s i o 19. However, Eh s p i 7 c ui s " oetoo that, while a ti O io 8 a t n :N t c nn o

disqualification prescribed by Rule 1.10 may be waived by the affected client under Colo.R.P.C. 1.10(c), this requires compliance with Colo.R.P.C. 1.7, and its express

4

The Mayor? The City Council?

7

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

Document 124

Filed 06/10/2006

Page 8 of 16

limitation that a ` disinterested lawyer' would not find the waiver improper (designed by the Colorado Rules Committee to emphasize that the standard is an objective test). C l RPC 17c. other words, a court must not allow the client consent exception o . ... .() o "In to swallow Rule 3.7 whole, and render it meaningless. 20. In its recent decision, In re Estate of Myers, 2006 P.3d ___ (05-SA-

231)(Colo. 2006), the Colorado Supe C ut ttdta "i u lc t no a rme o rs e h td q afai f n a s i o i attorney may not be based on mere speculation or conjecture, but only upon the showing of a clear danger that prejudice to a client or adversary would result from c ni e rpe e tt n, n " s b s p o o t u d e rs nai "a d mu t e u p rted by a showing not only that the n o proceedings appear to be seriously threatened, but also by a showing that a remedy s ot f i u lc t nw u b i f cv . h ro d q afai o l e n f te" s i o i d ee i 21. Myers involved the question of whether a law firm guilty of illegally

obtaining an ad es r'ce i e ot v ray rd rp rshould be disqualified as a sanction for its s t misconduct. It is therefore quite distinguishable factually. Still, it undeniably establishes a high standard for imputed disqualification of a firm. The circumstances of this case meet or exceed that standard. 22. The necessity that Messrs. Wesoky and Redmond be subjected to cross-

e a n t nc n en gte rl i teCts es c t no Pa t e tbs e " x mi i o c ri h i o n h i'p re ui f lni s lh s a ao n r e y o if ai f clear danger that prejudice to a client or adversary would result from continued rpe e tt n.Iid fu t i g earme y h ro d q afai o tee te e rs nai " t ic l o ma i o s f t i n e d s ot f i u lc t n fh ni s i o i r Ct Atre 'ofeta c u efcv lo ec metema y a g r o ap r ' i t n y f h t o l f te v ro y o s i c d ei y h n d n es f ats y

8

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

Document 124

Filed 06/10/2006

Page 9 of 16

lawyer serving as both advocate and witness that originally motivated, and still animates, the proscription on lawyer-witnesses. 23. The danger of confusion of the jury is great. For example, a critical

allegation that this Court has concluded must be decided by the jury is whether Mr. Cadorna retired voluntarily. A " -ho s c u s lfrh Ct MrWe o y n oh r s i u e o n e o te i, . s k a d te n " y me es fh Ct Atre 'E l me t a Dv i p y da i e rlo i mb r o te i t n y mp y n L w is n l e n n ga rl n y o s o io a t e discussions and communications among Fire Dept. personnel and others concerning MrC d ra tr n t n h p n i C Ca peal, his prosecution for theft, and his . a on ' emi i , i e d g S p s ao s n c ne l e rte n.T e w r n t rla v os te w r "i p s i te o tmp td ei me t h y ee o mee d i r;h y ee k g i "n h a r y s n n c n p a y a dh v , y ep tai tec n e u n e o Pa t 'u j t i h re o s i c, n a e b p reu t g h o s q e c s f lnis n s d c ag r n if f u s beyond the point of reason (indeed, outrage) or legality, expanded the enormity of the Ctslg lo d c fr e o dtep i a w i po e rg r frh id t s s i'i a c n u ta b y n h o t t h h rp re ad o te ui a y l e n c r e ofes fh C ut h u h v tl te "h fra dn moe" f r o te o rs o l a e o h m,T i a, n o r. i c d d s 24. Given their integral role in management of City personnel matters, it was

foreseeable me es fh Ct Atre 'ofewould become witnesses from the mb r o te i t n y f y o s i c outset, so the City cannot claim unfair surprise. 25. Neither can the City claim undue hardship, because it is a massively

wealthy5 bureaucracy with a much larger litigation budget than that of most private enterprises. 26. Perhaps the time has finally come that the City suffer a vague intimation

of the financial hardship its imperiously unconstitutional abuse of power has imposed

5

Not to mention massively wasteful, inefficient, and poorly managed.

9

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

Document 124

Filed 06/10/2006

Page 10 of 16

on Plaintiff. But for its evasion of accountability through the employment of a huge cadre of loyal apparatchiks to cloak its misdeeds with the vague appearance of rctd ,h Cts e t e te i'Sovietic disregard for the law, the truth, or the rights of the i u y individual could not be sustained, and would not be countenanced by its citizens. 27. In compliance with D.C. COLO.LCivR. 7.1(A), the undersigned certifies

that he consulted with opposing counsel concerning the subject of this motion, and opposing counsel stated his opposition to it. 28. Time is of the essence, so that Defendant(s) should be required to submit

an immediate response. WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this Court disqualify the entire Office of the City Attorney of the City and County of Denver from representing any Defendants in this action. DATED this 10th day of June, 2006. Respectfully submitted,

/S/

Mark E. Brennan

Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) [email protected] Attorney for Plaintiff

10

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

Document 124

Filed 06/10/2006

Page 11 of 16

CERTIFICATE OF SERVICE In compliance with D.C.COLO.LCivR. 6.1(D), the undersigned hereby certifies that, on this 10th day of June, 2006, he served, o tiC ut e c o ifn ss m rh o rs l t n i g yt s ' er cl i e served, a copy of the foregoing Motion to Disqualify on the following person(s) via electronic mail: William Cadorna 5503 S. Moore St. Littleton, CO. 80127 Jack Wesoky, Esq. Christopher Lujan, Esq. Office of the City Atty. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 /S/

Mark E. Brennan

11

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

Document 124

Filed 06/10/2006

Page 12 of 16

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

Document 124

Filed 06/10/2006

Page 13 of 16

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

Document 124

Filed 06/10/2006

Page 14 of 16

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

Document 124

Filed 06/10/2006

Page 15 of 16

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

Document 124

Filed 06/10/2006

Page 16 of 16