Green v. Montgomery County, Ala.

• Decision Date: 27 January 1992
• Docket Number: Civ. A. No. 91-T-315-N.
• Citation: 784 F. Supp. 841
• Parties: Thomas G. GREEN, IV, Plaintiff, v. MONTGOMERY COUNTY, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

784 F. Supp. 841

Thomas G. GREEN, IV, Plaintiff, v. MONTGOMERY COUNTY, ALABAMA, et al., Defendants.

Civ. A. No. 91-T-315-N.

United States District Court, M.D. Alabama, N.D.

January 27, 1992.

Thomas G. Green, pro se.

Boyett Bros. Inc., pro se.

ORDER

MYRON H. THOMPSON, Chief Judge.

In this lawsuit brought pursuant to 42 U.S.C.A. § 1983, plaintiff Thomas G. Green, IV, charges that the defendants "redeemed" his property in violation of the fourth, fifth, and fourteenth amendments to the United States Constitution. One of the defendants, Boyett Brothers, Inc., is represented in this lawsuit by the law firm of Beasley, Wilson, Allen, Mendelsohn & James and, more specifically, by one of its members, Blaine C. Stevens. This cause is before the court on the motion by Green for disqualification of the law firm. Green contends that the law firm should be disqualified for two reasons. First, Green claims that, more than seven years ago, in 1983 and 1984, one of the law firm's other members, Kenneth J. Mendelsohn, represented him in two cases. Mendelsohn was then an associate and is now a partner in the law firm. Second, Green claims that, a few months before filing this lawsuit, he discussed its facts with Mendelsohn. Green contends, based on these contacts with Mendelsohn, that the new Alabama Rules of Professional Conduct for attorneys require the court to disqualify Mendelsohn's law firm from representing Boyett Brothers in this case.¹ For the reasons that follow, the court will grant the motion and disqualify the law firm.²

I.

It "is beyond dispute that lawyers are officers of the court and that the courts have the inherent authority to regulate their professional conduct." In re Gopman, 531 F.2d 262, 266 (5th Cir.1976). The minimum ethical obligations for lawyers practicing in this court are contained in Rule 1(a)(4) of the Local Rules of the United States District Court for the Middle District of Alabama.³ This local rule provides that:

"Any attorney who is admitted to the bar of this court or who appears in this court ... shall be deemed to be familiar with and governed by ... the ethical limitations and requirements governing the behavior of members of the Alabama State Bar, and, to the extent not inconsistent with the preceding, the American Bar Association Model Rules of Professional Conduct."

These local rules represent controlling obligations on attorneys appearing in this court. Cox v. American Cast Iron Pipe Co., 847 F.2d 725, 728 n. 4 (11th Cir.1988); Waters v. Kemp, 845 F.2d 260, 263 (11th Cir.1988).

The court turns first to Green's contention that Mendelsohn's prior representation of him in 1983 and 1984 should disqualify Mendelsohn's law firm from representing Boyett Brothers in this lawsuit.⁴ Rule 1.9 of the new Alabama Rules of Professional Conduct governs the relations between an attorney and a former client. It places two separate restrictions on attorneys. Part (a) provides 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 consents after consultation." Part (b) provides that, with certain exceptions not relevant here, such a lawyer "shall not thereafter ... use information relating to the representation to the disadvantage of the former client." See also Church of Scientology of California v. McLean, 615 F.2d 691, 692 (5th Cir.1980) ("A lawyer need not disqualify himself in a matter concerning a former client unless the terminated employment had some substantial relationship to the pending suit or unless he has received some privileged information").

Rule 1.10(a) governs the "vicarious disqualification" of a law firm when one of its lawyers is disqualified. It provides that, "While lawyers are associated in a firm, none of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by Rule ... 1.9." Rule 1.10(a) is based on the idea that "a firm of lawyers is essentially one lawyer for the purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom he is associated." Comment to Rule 1.10. The rule is "entirely prophylactic: It is designed to prevent behavior not because the behavior is intrinsically improper but because it involves a risk of impropriety." Developments in the Law — Conflicts of Interest in the Legal Profession, 94 Harv. L.Rev. 1244, 1369 (1981) (emphasis in original).

Part (a) of Rule 1.9 is generally a codification of the standard articulated in the landmark case of T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F.Supp. 265 (S.D.N.Y.1953). T.C. Theatre holds that a client may disqualify his former attorney from representing his present adversary if the client can show "that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him." Id. at 269.⁵ Under Rule 1.9(a) and T.C. Theatre, therefore, a party may obtain disqualification of the opposing counsel if he can show that (1) he had an attorney-client relationship with the attorney sought to be disqualified (2) in a substantially related matter.

If the former client succeeds in making this dual showing, he will be entitled to an irrebuttable presumption that "during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation." T.C. Theatre, 113 F.Supp. at 269. The court will not inquire into whether the former client in fact made confidential disclosures to the attorney or whether the attorney is "in fact likely to use the damaging disclosures to the detriment of his former client." Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir.1977); see also In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir.1976). The rationale for this irrebuttable presumption is that, "If the court were to probe further into the question of whether the attorney actually gained access to confidential information, the inquiry itself might destroy the values sought to be protected" by the attorney's duty of confidentiality. Developments in the Law — Conflicts of Interest in the Legal Profession, 94 Harv.L.Rev. 1244, 1329 (1981). See also In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1347 (5th Cir. Unit A 1981); T.C. Theatre, 113 F.Supp. at 269; Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723, 729 (Ct.App.1989). The proof of a prior attorney-client relationship in a substantially related matter also entitles the former client to a "presumption that any confidences given to the attorney were shared among the attorney's partners and employees associated with the attorney at the time." In re Yarn Processing Patent Validity Litigation, 530 F.2d at 89.⁶

Green contends that he has met the requirements of Rule 1.9(a) and T.C. Theatre. The court cannot agree. Although Green and Mendelsohn had an attorney-client relationship with respect to certain matters in 1983 and 1984, Green concedes that these earlier matters are unrelated to his present lawsuit.

This conclusion does not end the court's inquiry, however. The court must still determine whether Rule 1.9(b) of the Alabama Rules of Professional Conduct applies. As stated, Rule 1.9(b) provides, with certain exceptions not relevant here, that "A lawyer who has formerly represented a client in a matter shall not thereafter ... use information relating to the representation to the disadvantage of the former client." Therefore, if, in the course of the prior relationship, Green divulged to Mendelsohn confidential information which could be used to Green's disadvantage in this lawsuit, Mendelsohn could still be disqualified. Green has not convinced the court of such. Green contends that, during the course of the prior relationship, he provided Mendelsohn with information about his "financial and business affairs." Admittedly, any knowledge a party may have about an adversary, particularly about the adversary's financial resources, confers some marginal tactical advantage. However, given the vagueness with which Green has described the information conveyed to Mendelsohn and given the amount of time that has passed since it was conveyed, the court is convinced such information could not be used to Green's disadvantage in his present lawsuit. The court therefore concludes that Mendelsohn's representation of Green in 1983 and 1984 disqualifies neither Mendelsohn under Rule 1.9 nor Mendelsohn's law firm under Rule 1.10(a).

II.

The court turns next to Green's charge that Mendelsohn and his law firm should be disqualified because, several months before filing this lawsuit, Green discussed the underlying facts with Mendelsohn in a telephone conversation. This time, the court agrees with Green that, under Rules 1.9 and 1.10 of the Alabama Rules of Professional Conduct, both Mendelsohn and his law firm must be disqualified from participating in this litigation.

Based on the evidence presented by the parties, the court finds the facts surrounding the telephone conversation to be as follows. Several months before filing this lawsuit, Green called Mendelsohn about the possibility of representing him. Although he did not discuss Boyett Brothers' involvement by name, he conveyed certain details and outlined the facts of his situation in general terms. Mendelsohn told Green that, based on the value of the property involved, the case did not appear to be worth filing. Green contacted Mendelsohn and believed he could be open and honest because Mendelsohn had represented him in earlier cases. Green had no idea that Mendelsohn's...