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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

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C.A.No.04-1394-GMS

PLAINTIFF'S MOTION TO DISQUALIFY COUNSEL FOR DEFENDANT CHAFFINCH FOR VIOLATION OF MODEL RULE OF PROFESSIONAL CONDUCT 1.9 Pursuant to Model Rule of Professional Conduct 1.9, plaintiff Moves this Court to disqualify counsel for defendant Chaffinch for violating his duties of confidentiality and loyalty to a former client by his representation of his current client, a current client whose interests are materially adverse to those of his former client in a substantially related matter. Brief Relevant Facts A. Mr. Liguori's Current Client - Defendant Chaffinch. Defendant Chaffinch is

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individually represented in this action by Mr. James Liguori. (D.I. 51-52). Chaffinch is the sole individual defendant to the charges of illicit gender discrimination set forth in Count I of plaintiff's complaint. (See D.I. 7). During a teleconference with the Court on December 8, 2005 related to Mr. Liguori's nonattendance of numerous depositions of key witnesses, Mr. Liguori admitted that he is working closely together and even jointly with counsel for the non-Chaffinch defendants in defending the charges in this case - including Count I.1 B. Chaffinch's Defense in This Action. As part of their defense in this case, defendants assert that two male officers promoted over Capt. Conley allegedly were more qualified for the positions at issue. One of the ways defendants have sought to do this is by dredging up each and every portion of plaintiff's summary discipline history with the DSP, including summary discipline that is over 20 years old. For example, attached at Tab A is Conley deposition exhibit # 3 - a 20 year survey and chart created by defendants outlining plaintiff's summary discipline history with the DSP. At her deposition on December 7, 2005, Capt. Conley was questioned extensively by defendants about each and every item of her disciplinary history listed on this exhibit. (Conley Aff. ¶¶ 13-16) (attached at Tab F). As became abundantly clear at her December 7th deposition, defendants have made plaintiff's past summary discipline history a primary issue in this litigation. They questioned Capt. Conley extensively about this stale disciplinary history. (Conley Aff. ¶¶ 14-19). C. Mr. Liguori's Prior Representation of Capt. Conley in Several of the Prior Disciplinary Matters at Issue. The conflict of interest at issue in this motion arises from the fact that Mr. Liguori represented Capt. Conley and defended her in several of the prior
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disciplinary matters that defendants have already questioned her about and made issues of in this case. (Conley Aff. ¶¶ 4-19). For example, Mr. Liguori represented Capt. Conley in the 6th, 7th, and 8th disciplinary charges listed in Conley deposition exhibit 3 (Tab A) - specifically, the charges dated "12/26/87 01/13/88", "unknown" and "12-26-87". (Conley Aff. ¶ 18). He advocated for her and learned confidential information about her and her disciplinary history as a result of these representations. (Conley Aff. ¶¶ 5, 8-12). Continuing, Conley deposition exhibit numbers 6, 7, and 11 (Tabs B-D) also are in the record and Capt. Conley was questioned about these documents and the incidents underlying them at her deposition as well. (Conley Aff. ¶ 16). These exhibits are the official DSP paperwork relating to the three aforementioned charges. (Conley Aff. ¶¶ 6-7). Indeed, as these exhibits demonstrate, two of the three charges against Capt. Conley were dismissed as a result of Mr. Liguori's representation of her. (Tabs A-D). Moreover, other record documents speak to Mr. Liguori's earlier representation and defense of Capt. Conley on various disciplinary matters as well. For example, an official April 11, 1988 Division memo also references numerous times that Capt. Conley was "represented by James Liguori, Esq." in the defense of several disciplinary charges that had been brought against her. (Tab E at 2; accord id. at 3-4). D. Mr. Liguori Learned Confidential Information About Capt. Conley During the Course of His Representation of Her. During the course of his representation of Capt. Conley in these several disciplinary proceedings, Mr. Liguori learned confidential information about Capt. Conley of the type typically disclosed to a lawyer by his client when the client faces disciplinary charges. (Conley Aff. ¶¶ 8-10, 19). This confidential information related to her 3

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disciplinary history with the DSP as well as the specific charges she faced at the time. (Conley Aff. ¶ 8). Capt. Conley was truthful and forthright with Mr. Liguori and conveyed as much information to him as she could to enable him to take informed steps and make informed tactical decisions relating to her defense of these charges. (Conley Aff. ¶¶ 9-10). E. Plaintiff Was A Trooper First Class at the Time of the Charges. At the time plaintiff was represented by Mr. Liguori, she was a Trooper First Class, working patrol in 1987. (See Tab E). Notably, despite the stale nature of the 15-20 year old discipline defendants have dredged up, plaintiff was still promoted to Corporal, then to Sergeant, then to Lieutenant, and then to Captain. Nonetheless, and much to counsel's surprise at this late date, defendants nonetheless have chosen to make this stale discipline a central issue in their case by their extensive deposition questioning of plaintiff on these issues. Discussion A. Standard of Review. "The party seeking disqualification must clearly show that continued representation would be impermissible." Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc., 142 F.Supp.2d 579, 581 (D.Del. 2001). "[V]ague and unsupported allegations are not sufficient to meet this standard." Integrated Health Services of Cliff Manor, Inc. v. THCI, Co. LLC, 327 B.R. 200, 204 (D.Del. 2005). "The district court's power to disqualify an attorney derives from its inherent authority to supervise the professional conduct of attorneys appearing before it." U.S. v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980). Whenever an allegation is made that an attorney has violated his moral and ethical responsibility, an important question of professional ethics is raised. It is the duty of the district court to examine the charge, since it is that court which is authorized to supervise the conduct of the members of the bar.

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Kabi Pharmacia AB v. Alcon Surgical, Inc., 803 F.Supp. 957, 960 (D.Del. 1992) (quoting Richardson v. Hamilton Int'l Corp., 469 F.2d 1382, 1385 (3d Cir. 1972)). Although disqualification is not automatic, it "ordinarily is the result of a finding that a disciplinary rule prohibits an attorney's appearance in a case." Miller, 624 F.2d at 1201. "If the facts found by the district court establish that practitioners before it have acted in a way which disqualifies them under the rules and established standards of professional conduct, it would ordinarily be error for the court to fail to declare the disqualification." IBM Corp. v. Levin, 579 F.2d 271, 279 (3d Cir. 1978). B. The Law. "Pursuant to Local Rule 83.6(d)(2), the District of Delaware has adopted the Model Rules of Professional Conduct." Elonex, 145 F.Supp.2d at 581; cf. In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 160-61 (3d Cir. 1984)(looking to the Model Rules because they are "the current standards of ethical norms"). Model Rule 1.9(a) states that 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 that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (emphasis added). "Matters are `substantially related' for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter." Rule 1.9, cmt. 3 (emphasis added). As this Court has explained, in order to determine whether Rule 1.9 has been violated, it

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must "undertake a painstaking analysis of the facts" and answer three questions. Integrated, 327 B.R. at 206. 1) What is the nature and scope of the prior representation at issue, 2) What is the nature of the present lawsuit against the former client, and 3) In the course of the prior representation, might the client have disclosed to his attorney confidences which could be relevant to the present action and, in particular, could any such confidences be detrimental to the former client in the current litigation. Id. at 206-207. C. Rule 1.9 Has Been Violated. 1. The Nature and Scope of the Prior Representation. As discussed above, Mr. Liguori previously represented and defended Capt. Conley against numerous disciplinary charges that were leveled against her in and around 1987 when she was a Trooper First Class. 2. The Nature of the Present Lawsuit. Also as discussed above, even though this is a promotions case arising out of the year 2003, defendants have made plaintiff's disciplinary history from the 1980's a central issue in this case - including the specific disciplinary charges in which Mr. Liguori previously represented plaintiff. Mr. Liguori represented and defended Capt. Conley in several of the very disciplinary proceedings defendants questioned plaintiff about at her deposition and which defendants have made into issues in our present case. Thus, it is clear that this is "the same or a substantially related matter," Rule 1.9, and factually even is "the same transaction or legal dispute." Rule 1.9, cmt. 3. Thus, plaintiff has clearly met her burden. See Integrated, 327 B.R. at 207 (the moving party has "the burden of proving that there is a substantial relationship" under Rule 1.9). 3. Whether Confidential Information was Disclosed That Could Be 6

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Detrimental To Plaintiff in the Present Suit. As part of this inquiry, "the court should not look to what information the attorney or law firm actually acquired from the former client but whether the attorney `might have acquired information related to the subject matter of his subsequent representation.'" Integrated, 327 B.R. at 208-209 (quoting Richardson, 469 F.2d at 1385) (emphasis in original). Thus, the Court should consider whether the attorney and former client would "have discussed the relevant facts ... or whether it would not have been unusual for the lawyer and client to have discussed the relevant facts." Id. In our present case, Mr. Liguori was privy to innumerable confidential communications with Capt. Conley relating to the specific disciplinary charges at issue as well her prior disciplinary history with the Division. (Conley Aff. ¶ 8). But Mr. Liguori currently represents defendant Chaffinch in the present matter where defendants have made plaintiff's prior disciplinary history a direct issue in this case. As a result, there is a clear and "substantial risk" that Mr. Liguori will use his confidential factual knowledge about Capt. Conley to "materially advance" and aid in his defense of defendant Chaffinch. Rule 1.9, cmt. 3. Mr. Liguori is playing both sides of the fence - an action which is clearly prohibited by Rule 1.9. (See Conley Aff. ¶ 19). Moreover, it is undisputed that defendant Chaffinch's interests are materially adverse to those of Capt. Conley. Mr. Liguori earlier advocated on Capt. Conley's behalf in order to dismiss the various disciplinary charges against her. But in the present case, now on behalf of defendant Chaffinch, Mr. Liguori seeks to tar Capt. Conley with those same charges as to which he once represented her. As revealed at Capt. Conley's deposition, one of the ways defendants intend to do this is by dredging up every little aspect of her disciplinary history with the Division 7

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- including the matters in which she was previously represented by Mr. Liguori - matters defendants have already questioned her about. Mr. Liguori is duty bound to use his confidential knowledge about his former client Capt. Conley from the prior representation to benefit his current client defendant Chaffinch in the current litigation. But contradictorily however, Mr. Liguori also is duty bound not to use his confidential knowledge about his former client Capt. Conley to help his present client defendant Chaffinch in the lawsuit between his former and current clients. Indeed, this is one of the very concerns that Rule 1.9 was designed to address - to prevent such an untenable situation from occurring. Unfortunately since the defendants have already extensively questioned Capt. Conley about her prior disciplinary history at her deposition, a great deal of damage has already been done. D. Capt. Conley Has Made the Required Showing. "A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services." Rule 1.9, cmt. 3. As this Court has explained, In determining whether a `substantial relationship' exists, the court need not, nor should it, inquire into whether an attorney actually acquired confidential information during the prior representation related to the current representation. Rather, the court's primary concern is whether confidential information that might have been gained in the first representation may be used to the detriment of the former client in the subsequent action. Integrated, 327 B.R. at 206. 8

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Given that Mr. Liguori represented Capt. Conley in several of the very matters that defendants questioned her about at her deposition and have made a direct issue in this case, it is clear that Liguori possesses protected confidential information about Capt. Conley. In light of the very nature of the charges she faced, such confidential information would have been conveyed to Liguori as a matter of course during his numerous representations of Capt. Conley. (See Conley Aff. ¶ 8). But now Mr. Liguori seeks to use this confidential information to attack and injure Capt. Conley. This is exactly why "[w]hen a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited." Rule 1.9, cmt. 2. Conclusion Because of Mr. Liguori's violation of Rule 1.9, Plaintiff respectfully submits that he should be disqualified from representing defendant Chaffinch in this matter and ordered to immediately terminate his representation of Chaffinch. Additionally, in light of Mr. Liguori's representations to the Court during the teleconference on December 8th that he is working closely with counsel for the non-Chaffinch defendants and that they have pooled their defense resources, Plaintiff respectfully requests that the Court also order counsel for the non-Chaffinch defendants to disclose to the Court and to plaintiff's counsel any and all information revealed to them by Mr. Liguori related to his prior representation of Capt. Conley. Depending upon whether any such information is found to exist, further Court action may become necessary and disqualification of counsel for the non-Chaffinch defendants may subsequently be warranted. Plaintiff waives an opening brief in support of this Motion. 9

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Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: December 15, 2005 Attorneys for Plaintiff

LOCAL RULE 7.1.1 STATEMENT Counsel certifies that he contacted defense counsel to determine his position on this motion. Defense counsel indicated that he believes that no conflict of interest exists and was unwilling to withdraw from his representation of defendant Chaffinch.

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

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C.A.No.04-1394-GMS

ORDER This day of , 2005, it is hereby ORDERED

that James E. Liguori Esq. is hereby disqualified from representing defendant L. Aaron Chaffinch in this matter and Mr. Liguori is ORDERED to immediately terminate his representation of defendant Chaffinch. Furthermore, it is hereby ORDERED that within seven days of the date of this Order, counsel for the non-Chaffinch defendants in this case are to disclose and submit to the Court and plaintiff's counsel any and all information revealed to them by Mr. Liguori related to his prior

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representation of plaintiff. If as a result of the disclosure of this information plaintiff believes that further Court action is warranted, the Court will entertain such Motions if the need arises.

THE HONORABLE GREGORY M. SLEET, U.S.D.J.

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Tab A

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Tab B

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Tab C

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Tab D

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Tab E

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Tab F

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

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C.A.No.04-1394-GMS

UNSWORN DECLARATION OF BARBARA L. CONLEY, UNDER 28 U.S.C. § 1746 I, Barbara L. Conley, hereby depose and state as follows: 1. I make this declaration on my own personal knowledge and I will testify hereto if

called as a witness. 2. I am a Captain in the Delaware State Police and am the plaintiff in the above titled

action. I have personal knowledge of the facts contained in this declaration and, if called as a witness, I am competent to testify as to those facts. 3. I am represented in this case by The Neuberger Firm.

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Mr. Liguori's Earlier Representation of Me in Several Confidential Disciplinary Matters 4. In approximately early 1988, I retained Mr. James Liguori, Esquire to represent

me in the defense of several departmental charges that were lodged against me at that time. Mr. Liguori represented me and became my attorney. 5. Mr. Liguori defended and represented me in what I believe to have been at least

three separate charges that were leveled against me. 6. Mr. Liguori also contemporaneously represented my husband Larry, who was a

Delaware State Trooper at the time. 6. There is a confidential April 11, 1988 official DSP document in the record that is

bates-stamped at the bottom as P102-P105. This document comes from my troop level personnel file. This exhibit is attached to the disqualification motion that my attorneys are filing on my behalf. 7. This official DSP document states and reaffirms several times that Mr. Liguori

represented me in the defense of several departmental charges that had been filed against me at that time. 8. As part of those representations, I consulted and met with Mr. Liguori. During

these consultations, Mr. Liguori was made privy to numerous facts, feelings, beliefs and other information relating to the disciplinary charges that I faced at the time as well as my history with the Division. 9. I conveyed this information to Mr. Liguori to enable him to take informed steps

and make informed tactical decisions relating to his defending me against the charges that I

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faced. 10. I conveyed this information to Mr. Liguori during the course of and for the

purpose of procuring legal advice and obtaining legal representation. 11. It was my understanding at the time that Mr. Liguori was required to keep all of

the information I conveyed to him confidential and not use it to hurt me. 12. I have never waived my right to confidentiality or my right to keep all of this

information secret. Defendants Questioned Me About My Disciplinary History at My Deposition 13. 14. I was deposed by defendants on December 7, 2005. At my deposition, I was asked extensive questions about my disciplinary history

with the Delaware State Police. 15. Defendants specifically questioned me about all of the matters that Mr. Liguori

had previously represented me in. 16. Additionally, numerous exhibits relating to my disciplinary history were marked

at my deposition. These include Conley deposition exhibits # 3, 6, 7 and 11. I was questioned extensively about all of these exhibits. Those four exhibits are attached to the disqualification motion that my attorneys are filing on my behalf. 17. All four of these exhibits relate to the previous matters that Mr. Liguori

represented me in. 18. Looking at Conley deposition exhibit #3, Mr. Liguori represented me in the 6th,

7th, and 8th disciplinary charges listed - specifically, the charges dated "12/26/87 - 01/13/88", "unknown" and "12-26-87". 3

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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on December 15, 2005, I electronically filed this Motion with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

Conley/ Pleadings / Motion to Disqualify Defense Counsel

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