Hamrick v. Union Tp., Ohio, No. C-1-98-161.

• Decision Date: 12 January 2000
• Docket Number: No. C-1-98-161.
• Citation: 81 F.Supp.2d 876
• Parties: Andrew HAMRICK, et al., Plaintiffs, v. UNION TOWNSHIP, OHIO, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

81 F.Supp.2d 876

Andrew HAMRICK, et al., Plaintiffs, v. UNION TOWNSHIP, OHIO, et al., Defendants.

No. C-1-98-161.

United States District Court, S.D. Ohio, Western Division.

January 12, 2000.

Jeffery Stephen Schwartz, Rosenhoffer, Nichols & Schwartz, Batavia, OH, for Andrew Hamrick, plaintiffs.

Michael Edward Maundrell, Schroeder Maundrell Barbiere & Powers, Cincinnati, OH, for Union Township Ohio, defendants.

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Defendants' Motion to Disqualify Counsel for Plaintiffs (doc. 31); Plaintiffs' Response (doc. 35); and Defendants' Reply (doc. 38).

BACKGROUND

On February 27, 1998, Plaintiffs Andrew Hamrick, Bruce Keaton, Deborah Lovins-Vance, and Melissa Ross (hereinafter, collectively referred to as "Plaintiffs") filed suit against Defendants Union Township (Ohio), Michael Burns, Michael McMillan, Kenneth Geis, and Charles Knox (hereinafter, collectively referred to as "Defendants") (doc. 1). The Parties do not dispute the fact that at all relevant times herein, all of the Parties to this action were employed in some capacity by the police department of Defendant Union Township.

The Complaint sets forth ten causes of action, most of which are asserted against all Defendants and includes allegations of civil rights violations, sexual harassment, sexual discrimination, and retaliatory discharge (Id.). The allegations contained in the Complaint relating to Plaintiffs' participation in the investigation, as well as Plaintiffs' subsequent discharge for such participation, forms the basis for several of the stated causes of action (Id.).¹

Plaintiffs allege in their Complaint that, at various times from 1986 through 1991, Defendant McMillan engaged in conduct amounting to sexual harassment and sexual discrimination (Id.). In addition, Plaintiffs allege that in an effort to shield Defendant McMillan from future scrutiny and salvage his career, the other Defendants engaged in the wrongful destruction of Defendant McMillan's personnel files and disciplinary records (Id.). Moreover, Plaintiffs assert that Defendants retaliated against Plaintiffs for their involvement in the investigation of Defendant McMillan (Id.). Plaintiffs contend that this retaliation resulted in their subsequent discharge for having sworn to statements critical of Defendant McMillan and/or the police department during the investigation in question (Id.).

In their Motion to Disqualify filed on July 15, 1999, Defendants assert that Plaintiffs' present counsel, Jeffrey S. Schwartz, a partner and/or shareholder of the firm Rosenhoffer, Nichols, and Schwartz L.L.P., conducted the investigation of McMillan and the other Defendants that was referred to in the Complaint (doc. 31). Moreover, Defendants attached to their Motion to Disqualify a letter dated August 4, 1995, from Mr. Schwartz to Judge William Walker of the Clermont County Court of Common Pleas, explaining his involvement in the investigation as follows:

In closing, our office is presenting allegations brought to our attention by citizens who feel that crimes have been committed. Our office has no financial interest in the matters under consideration by the Court, and we are not part of any civil litigation presently pending on behalf of any party or contemplated by any allegedly aggrieved party. Our office will not represent any present or potential party in civil litigation which may result from the investigation of allegations presented to the Court. We are simply acting on behalf of citizens who have brought this matter to our attention, requesting us to petition the Court to exercise its power of appointment to ensure that all persons feel that the allegations have been fully investigated, regardless of the outcome of that investigation.

(doc. 31, Ex. B) (emphasis added).

Defendants further assert in their Motion that, during the course of his investigation, Mr. Schwartz met with: (1) Dennis Stemen of the Clermont County Sheriff's Department; (2) Assistant Prosecutor Daniel Breyer; (3) Assistant Prosecutor Donald White; and (4) Judge Walker in relation to the allegations against Defendants (doc. 31). In addition, as part of his investigation, Defendants assert that Mr. Schwartz obtained sworn statements from all Plaintiffs in this action (Id.). Furthermore, Defendants allege that Mr. Schwartz was allegedly a critical and sole witness to at least one of the claims of retaliation contained in the Complaint (Id.). Defendants submit that it is possible that Mr. Schwartz will be called as a witness to testify on behalf of his own clients, in order to corroborate the testimony of Plaintiffs' likely witnesses. Nonetheless, Defendants assert that it is also very likely that Mr. Schwartz will be called by Defendants as a fact and/or rebuttal witness in relation to his investigation of Plaintiffs' claims (Id.). Defendants argue that since Mr. Schwartz's testimony will be necessary to their defense, Mr. Schwartz and his firm must be disqualified from representing Plaintiffs in this action (Id.).

On August 24, 1999, Plaintiffs filed their Response and countered that, Mr. Schwartz's alleged testimony as a potential witness would be both cumulative, irrelevant and/or non-prejudicial to Plaintiffs' case. Moreover, the disqualification of Plaintiffs' counsel would be a "drastic step" that would infringe upon Plaintiffs' right to retain the counsel of their choice (doc. 35). Shortly thereafter, Defendants submitted their Reply emphasizing the fact that Mr. Schwartz's testimony is critical, especially since he and Plaintiff Vance were the only persons present when an alleged incident of retaliation occurred in his office during the investigation in question (doc. 38).

The Parties now move the Court for a ruling in this matter, and the Court finds that this matter is now ripe for our review.

DISCUSSION

A motion to disqualify is the proper method for a party-litigant to bring an issue of conflict of interest or the breach of an ethical duty to the court's attention. Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir.1980). Confronted with such a motion, courts must be sensitive to the competing public interests of requiring professional conduct by an attorney and of permitting a party to retain the counsel of his choice. Kitchen v. Aristech Chem., 769 F.Supp. 254, 257 (S.D.Ohio 1991). In order to resolve these competing interests, the courts must balance the interests of the public in the proper safeguarding of the judicial process together with the interests of each party to the litigation. General Mill Supply Co. v. SCA Servs., Inc., 697 F.2d 704, 711 (6th Cir.1982).

The power to disqualify an attorney from a case is "incidental to all courts, and is necessary for the preservation of decorum, and for the respectability of the profession." Kitchen, 769 F.Supp. at 256 (quoting Ex Parte Burr, 9 Wheat. 529, 22 U.S. 529, 531, 6 L.Ed. 152 (1824)). However, "the ability to deny one's opponent the services of his chosen counsel is a potent weapon." Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir.1988). Motions for attorney disqualification should be viewed with extreme caution for they can be misused as techniques of harassment. Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 722 (7th Cir.1982).

The applicable ethical standards in relation to this matter are the Canons, Ethical Considerations, and Disciplinary Rules embodied in the Code of Professional Responsibility, as adopted by the Supreme Court of Ohio. Specifically, this Motion concerns the Code of Professional Responsibility's Disciplinary Rule 5-101 and 5-102, which provides, in pertinent part:

DR 5-101, "Refusing Employment When The Interests Of The Lawyer May Impair The Lawyer's Independent Professional Judgment."

(B) A lawyer shall not accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or a lawyer in the firm ought to be called as a witness, except that the lawyer may undertake the employment and the lawyer or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or the firm as counsel in the particular case.

DR 5-101(B) (1999).

DR 5-102, "Withdrawal As Counsel When The Lawyer Becomes A Witness."

(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

DR 5-102(B) (1999).

Under Ohio's Code of Professional Responsibility, Ethical Consideration 5-9, "Incompatible Roles of Advocate and Witness," the Code further elaborates on the potential problems of an attorney appearing as both witness and advocate:

Occasionally, a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue...