Sykes v. Matter (316 F. Supp. 2d 630, 2004)

MEMORANDUM AND ORDER

BROWN, United States Magistrate Judge.

Currently pending in this civil action are plaintiffs motion to disqualify defendants’ expert witness, Mr. John Kopra (Docket Entry No. 33), and defendants’ motion to disqualify plaintiffs counsel (Docket Entry No. 49). These disqualification motions have been fully briefed, see Docket Entry Nos. 39, 49, 50, 52, 53, and 56, and for the reasons that follow, plaintiffs motion is DENIED and defendants’ motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Counsel of record for plaintiff in this case are members of the law firm Boult, Cummings, Conners & Berry, PLC (hereinafter, “Boult Cummings”), who initiated this lawsuit on plaintiffs behalf on October 15, 2002 (Docket Entry No. 1). On February 20, 2004, plaintiffs counsel received an expert disclosure statement from the defense, identifying Mr. John Kopra of the LBMC Retirement Plan Company, LLC (hereinafter, “LBMC”) as an expert witness in this action on issues related to damages. Plaintiffs counsel recently learned that other lawyers at Boult Cummings have previously represented LBMC and certain of its affiliates, including the affiliate where Mr. Kopra is employed. This representation spanned a period of fifteen years, though LBMC has not engaged Boult Cummings in any such representation for roughly the past three years. During the course of the firm’s representation of LBMC, certain firm members (not including counsel of record here) have received or learned confidential information pertaining to both the company and the individual, Mr. Kopra.

By letter dated March 1, 2004 (Docket Entry No. 49, Exh. 1), plaintiffs counsel informed LBMC of what it perceived to be a potential ethical issue in its cross-examination of Mr. Kopra during deposition and at trial, given the knowledge of certain firm members of confidential matters pertaining to Mr. Kopra’s “professional competence.” Counsel advised in the letter that they had unilaterally concluded that Mr. Kopra’s agreement to serve as an expert witness in this matter constituted his consent, on behalf of LBMC, to Boult Cummings’ use of any confidential information its members may possess in connection with any cross-examination of him at deposition or trial. Counsel further advised that a consent form enclosed with the letter should be signed in order to avoid any misunderstanding about the matter, and that if such express consent were not given by the close of business on March 3rd, “we will initiate the necessary action to have this matter resolved by the appropriate tribunal in order to carry out our obligations to our clients in the Sykes lawsuit.” By return letter dated March 3, 2004 (Docket Entry No. 38, Exh. A), LBMC declined to consent to the disclosure or use of confidential or privileged information.

After full disclosure of the potential conflict, plaintiff Sykes has consented to the continued representation of his interests by Boult Cummings. Plaintiff filed the instant motion for disqualification of Mr. Kopra on March 9, 2004. Included in the opposition to that motion by defendants Mateo Business Forms, Inc., Frank A. Matter, and George D. Coon, Jr., is the instant motion for disqualification of plaintiffs counsel.

II. DISCUSSION

Plaintiffs Motion to Disqualify Mr. Kopra

This motion to disqualify must be denied. Boult Cummings is the conflicted party here, and the one to which the ethical rules cited in the motion apply. If anyone is to be disqualified because of an ethical dilemma, it would seem only logical that it should be those members of the profession whose rules present the dilemma. Moreover, the alternative argument that Mr. Kopra’s voluntary appearance in this action impliedly waives any privilege held by LBMC is without merit, inasmuch as the rule relating to such use of information obtained during representation of a former client, Rule 1.9 of the Tennessee Rules of Professional Conduct, clearly requires that such consent be given after consultation. In other words, such consent must be informed, and therefore cannot be implied. Selby v. Revlon Consumer Products Corp., 6 F.Supp.2d 577, 581-82 (N.D.Tex.1997).

Lacking consent to reveal client confidences, counsel states that the continued participation of Mr. Kopra in this lawsuit leaves them with a Hobson’s choice, between utilizing confidential information during cross-examination in violation of ethical duties on the one hand, and failing to zealously represent Mr. Sykes on the other hand, in violation of ethical duties, if potentially damaging confidential information is not so utilized. However, this argument ignores the third alternative that is always available to counsel laboring under, as the motion papers put it, “an irreconcilable difficulty under the Rules of Professional Conduct”: withdrawal from representation. While counsel argues that “[i]t is basically unfair to require Mr. Sykes or his counsel” to make this choice, inasmuch as this conflict was not of their making, such is the sometimes unfortunate reality of proper practice within the legal profession. However, giving due consideration to Mr. Sykes’ substantial interest in retaining and proceeding with counsel of his choice, the undersigned concludes that withdrawal is not required here, inasmuch as the potential for conflict can be removed by allowing plaintiff to retain other counsel for purposes of cross-examining Mr. Kopra at his deposition and at trial.

Defendants’ Motion to Disqualify Plaintiffs Counsel

Defendants Mateo Business Forms, Inc., Frank A. Matter, and George D. Coon, Jr., argue that the ethical issues brought to the fore by plaintiffs counsel, instead of requiring the disqualification of Mr. Kopra, in fact require counsel’s disqualification, and they have so moved. Defendants first cite Rule 1.7 of the Tennessee Rules of Professional Conduct, which provides as follows:

Rule 1.7. Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) Each client consents in writing after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected; and

(2) The client consents in writing after consultation.

Despite defendants’ citation of subsection (a) of this rule, they do not argue that Boult Cummings’ representation of plaintiff is directly adverse to LBMC, nor can the undersigned so conclude. Rather, pursuant to subsection (b) of Rule 1.7, defendants cite counsel’s virtual admission in their letter to LBMC that the current representation would be materially limited by their responsibility of keeping client confidences. There is no question that Mr. Sykes has consented, in writing and after consultation, to his continued representation by Boult Cummings (Docket Entry No. 37, Exh. A). While plaintiffs memorandum states that, “[i]n light of the fact that trial counsel have never represented LBMC or Mr. Kopra and the screening that has been employed, they do not believe their continued representation of Mr. Sykes will be adversely affected”, this argument ignores the effect of Rule 1.10, which imputes the disqualification under Rule 1.7 of any attorney in a firm to other members of the firm. However, while counsel might well be subject to disqualification had they undertaken representation of Mr. Sykes with knowledge of a former client’s employment by their adversary, the situation as it has arisen here and the ready solution of utilizing unconflicted counsel for the examination of Mr. Kopra mitigate against the mechanical application of Rule 1.7(b). Accordingly, the drastic remedy of disqualification will not be ordered on the basis of Rule 1.7.

Defendants next cite Rule 1.8 of the Rules of Professional Conduct in support of their disqualification motion. However, that rule is clearly addressed to the prohibition on use of client confidences or other information related to the representation of a client in transactions for the benefit of the lawyer. Accordingly, Rule 1.8 does not provide any basis for disqualification of counsel here.

Finally, defendants cite Rule 1.9 of the Rules of Professional Conduct in support of their disqualification motion. That rule provides, in pertinent part, as follows:

Rule 1.9. Conflict of Interest: Former Client

(a) 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 in writing after consultation.

% * * # * :