Debiasi v. Charter County of Wayne

• Decision Date: 23 September 2003
• Docket Number: No. 02-CV-71956-DT.,02-CV-71956-DT.
• Citation: 284 F.Supp.2d 760
• Parties: David DeBIASI, Plaintiff, v. CHARTER COUNTY OF WAYNE, a municipal corporation, Robert Ficano, individually and in his capacity as "Sheriff" of Wayne County, and Mark Ulicny, individually and in his capacity as "Personnel Director" for Wayne County, jointly and severally, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 760

284 F.Supp.2d 760

David DeBIASI, Plaintiff, v. CHARTER COUNTY OF WAYNE, a municipal corporation, Robert Ficano, individually and in his capacity as "Sheriff" of Wayne County, and Mark Ulicny, individually and in his capacity as "Personnel Director" for Wayne County, jointly and severally, Defendants.

No. 02-CV-71956-DT.

United States District Court, E.D. Michigan, Southern Division.

September 23, 2003.

Jamil Akhtar, Esq., Troy, MI, for plaintiff.

Cheryl A. Yapo. Esq., Detroit, MI, for defendants.

OPINION AND ORDER AFFIRMING MAGISTRATE JUDGE'S MAY 21, 2003 ORDER GRANTING DEFENDANTS' MOTION TO DISQUALIFY JAMIL AKHTAR AS PLAINTIFF'S COUNSEL

ROSEN, District Judge.

I. BACKGROUND

Plaintiff David DeBiasi is a white male lieutenant in the Wayne County Sheriff's Department who is suing Wayne County, the Wayne County Sheriff and the County's Personnel Director for reverse discrimination because he believes that Sheriff Robert Ficano promoted a fellow lieutenant, Lieutenant Pamela McClain, to the position of Commander in March 2002 because she is a black female and he needed to get the black vote in the City of Detroit in the August 2002 primary election for County Executive. As lieutenants in the Wayne County Sheriff's Department, Plaintiff is, and Ms. McClain was at all times relevant to this lawsuit, members of Wayne County Law Enforcement Supervisory Local 3317 — AFSCME (the "Union"). Jamil Akhtar is Plaintiff's attorney in this lawsuit. Mr. Akhtar is also the Union's general counsel. He has represented Local 3317 for the past 14 years, has been a member of the Union's bargaining team and the panel member appointed by the Union to arbitrate its collective bargaining agreement. [See Plaintiff's Response Brief, p. 2.]¹ Prior to her promotion to Commander, Ms. McClain was also a member of the Union's bargaining team. Id.²

As discovery in the instant lawsuit progressed, the Defendants perceived an apparent conflict of interest with Mr. Akhtar continuing to represent Plaintiff in this lawsuit because of his representation of the Union and confidential/privileged information that he apparently obtained in that capacity (and not through discovery in this action) which unfairly prejudices Defendants. Further, Mr. Akhtar has filed a "fact" affidavit in support of Plaintiff DeBiasi's position concerning the County's promotion practices which would render him a witness in this lawsuit and the Defendants maintain that Akhtar's testimony concerning the matters he raised in his affidavit is necessary in order for them to present a complete defense to Plaintiff's allegations of discrimination. Although Defendants sought discovery several times in this lawsuit on these issues, at every instance, Mr. Akhtar asserted, and/or directed the Union president to assert, the attorney/client privilege to block Defendants' discovery requests.

Because of the perceived conflict of interest (and the attendant discovery problems), Defendants filed a motion to disqualify Mr. Akhtar as Plaintiff's counsel in this action. Plaintiff filed a written response to Defendants' motion arguing that there was no conflict of interest because Ms. McClain, Plaintiff's "comparable" in this discrimination matter, was not his client; his only client (other than Plaintiff) was the Union. The matter was subsequently referred to Magistrate Judge Virginia Morgan for hearing and determination. Magistrate Judge Morgan held a hearing on this matter on February 5, 2003 and, at the conclusion of the hearing, indicated her inclination to grant Defendants' motion for Mr. Akhtar's disqualification. Mr. Akhtar, however, asked that the decision be delayed until an ethics opinion could be obtained from the State Bar Professional Standards Division. Magistrate Morgan agreed to withhold her decision until such an opinion could be obtained. The State Bar ultimately did issue an advisory letter. The State Bar's response to Mr. Akhtar's request for ethics guidance on the conflict of interest issue, in summary, was as follows:

Even though the labor union [and not individual union member Pamela McClain] is and was your client, it is possible that you could have received some confidential communications from an agent of your client... during your representation as general counsel during labor negotiations.

* * * * * *

Therefore, the test is whether or not you obtained any privileged and confidential information from the agent of your client during a former representation that could be used against her in this matter. If the answer is "yes", the conflict of interest rules could prevent your current representation. If the answer is "no", the ethics rules would permit your current representation.

The ethics letter did not change Magistrate Judge Morgan's decision and on May 21, 2003, she issued her written opinion granting Defendants' Motion to Disqualify. On May 29, 2003, Plaintiff appealed the Magistrate Judge's ruling and now asks this Court to reverse that decision. Defendants filed a written response to Plaintiff's appeal. The Court held a hearing on Plaintiff's appeal on August 27, 2003. Having reviewed and considered the Magistrate Judge's opinion, the parties' briefs, and the oral arguments of counsel, the Court now issues the following Opinion and Order and, for the reasons stated below, AFFIRMS the Magistrate Judge's ruling.

II. PERTINENT FACTS

A. PLAINTIFF'S COUNSEL'S USE OF CONFIDENTIAL COMMUNICATION WITH ANOTHER CLIENT TO MAKE OUT PLAINTIFF'S CLAIM OF DISCRIMINATION IN THIS LAWSUIT

The heart of this lawsuit is Plaintiff's contention that Pamela McClain, the lieutenant who received the promotion to Commander which Plaintiff wanted, should not have received the promotion. During the course of discovery, Plaintiff requested that Defendants produce "any internal affairs files, relating to any investigation by the Wayne County Sheriff's Department of allegations brought against Pamela McClain." Defendants responded to this request by producing a copy of one internal affairs file wherein Pamela McClain was accused of racial harassment and discrimination. Plaintiff's counsel, however, relying upon "independent knowledge that Pamela McClain was called into a meeting with then Undersheriff Donald Watts and was represented by Lt. Gerard Grysko, then Vice-President [and now President] of Local 3317, and was given an oral reprimand and a transfer" as the result of $30,000 missing bond money for which Ms. McClain was allegedly responsible, claimed that Defendants were hiding evidence and not producing everything he requested.

In an attempt to support his claim of dilatory discovery tactics and to make out his claim of discrimination against Defendants, Plaintiff then deposed Ms. McClain and asked her at her deposition whether she "ha[d] ever been disciplined in any manner, that would include oral reprimands, while lieutenant or sergeant, that would include oral reprimands, written reprimands, time off?" Ms. McClain, however, denied ever being reprimanded. [See McClain 10/3/02 Dep., Plaintiff's Response, Ex 1, p. 49] Plaintiff then demanded Defendants to produce the internal affairs file concerning the missing $30,000 bond money. Defendants responded with a motion for protective order. Magistrate Judge Morgan conducted an in camera review of the file and based upon that review, determined that the internal affairs file concerning this incident need not be produced. Specifically, she held as follows:

I have reviewed all of the documents contained in Defendants' Exhibit A. Plaintiff has indicated that he believes that there is discipline reflected in those which make Lieutenant McClain less worthy of promotion than the Plaintiff. I have reviewed those. I have found no evidence and no documents that reflect any form of discipline, any form of negative comments with respect to McClain's supervision, and no adverse action contemplated with respect to her running of the department. Therefore, I find that the documents are not relevant to the claim of the Plaintiff, and that Defendants' motion for protective order to prevent their production should be granted.

[Defendants' Appeal Response, Ex. B.]

Apparently determined to establish some record evidence to support his claim that Pamela McClain was not qualified for the promotion to commander based upon her alleged reprimand for the disappearance of $30,000 bond money, Plaintiff produced Union president, Lt. Gerard Grysko, pursuant to notice (and not by way of subpoena) for his own direct examination. Lt. Grysko represented Ms. McClain at her meeting with the Undersheriff. Apparently anticipating that Lt. Grysko would testify that Ms. McClain was disciplined for the missing bond money, Plaintiff sought to obtain Grysko's testimony for the record in this case. Although Plaintiff asserts in this case that Lt. Grysko did testify in his deposition that Ms. McClain was reprimanded for the missing bond money in the meeting with Undersheriff Watts, an examination of Grysko's deposition testimony does not bear out Plaintiff's representation that McClain was reprimanded. All that Lt. Grysko stated on the record was that Undersheriff Watts believed that some unidentified employee had stolen the money but that he did not think the Department could prove it, and that Watts was upset about that "and something about [a] procedure that wasn't implemented."³ [Grysko Dep., p. 8.]

Notwithstanding Plaintiff's mischaracterization of Grysko's testimony, with regard to the matters presented in this appeal, the more important issue is Mr. Akhtar's blocking of Defendants' discovery, including their cross-examination of Lt. Grysko, by himself asserting, and by instructing Lt. Grysko to assert, the attorney-client privilege and not answer Defendants' questions.

Apparently aware that by using, in the pursuit of the instant action, confidential information provided to him by another client presented some ethical problems, Mr. Akhtar has...