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Fant v. The City of Ferguson

United States District Court, E.D. Missouri, Eastern Division

August 7, 2017

KEILEE FANT, ET AL., Plaintiffs,
v.
THE CITY OF FERGUSON, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs' motion (ECF No. 111) to disqualify defense counsel, Peter J. Dunne, Robert T. Plunkert, Jessica L. Diamond, [1] and their law firm of Pitzer Snodgrass, P.C. (collectively, “the Pitzer firm”), based on a conflict of interest. The motion to disqualify arises from the Pitzer firm's hiring of attorney Ryan McGinty, who previously represented Plaintiffs in municipal matters giving rise to the current litigation.

         For the reasons set forth below, the Court agrees that the Pitzer firm has a conflict of interest under the applicable rules of professional conduct, and is accordingly prohibited from representing Defendant, the City of Ferguson (the “City”), in this matter. Therefore, the Court will grant Plaintiffs' motion. Although the City is also represented by other attorneys, from the law firm of Lewis Rice LLC, the Court will stay these proceedings for another 21 days to allow the City time to obtain new counsel if it so desires.

         BACKGROUND

         The 11 named Plaintiffs in this putative class action assert claims under 42 U.S.C. § 1983, arising out of the City's policies and practices of jailing individuals for failure to pay money owed from traffic and other municipal offenses. Plaintiffs filed suit on February 8, 2015, represented by attorneys from, among other organizations, ArchCity Defenders.

         McGinty was employed as an attorney with ArchCity Defenders from approximately March 5, 2012, through January 5, 2017, first as a contract attorney and, beginning in January or February 2015, as a full-time staff attorney. Plaintiffs have presented evidence that McGinty represented at least four of the 11 named Plaintiffs during this time in matters in the City's municipal court, including the particular municipal matters giving rise to Plaintiffs' claims in the instant case.

         McGinty has submitted an affidavit attesting that he did “provide some services to individuals who were clients of ArchCity Defenders, Inc. in connection with citations they received from the City of Ferguson, ” but that “those services did not involve, directly working on the filing or pursuit of [this] class action or any other class actions against the City of Ferguson.” ECF No. 128-3. McGinty's affidavit does not name the individuals he represented while employed at ArchCity Defenders or further describe the services he provided.

         On March 2, 2015, the Pitzer firm entered its appearance on behalf of the City, and it has represented the City since that time. In November and December of 2016, additional attorneys from Lewis Rice LLC, also entered appearances on behalf of the City.

         McGinty was hired by the Pitzer firm on April 6, 2017, and his first day of employment was April 17, 2017. The Pitzer firm has presented evidence that, to date, McGinty has been employed exclusively in the firm's asbestos litigation group, a practice group “totally separate” from the municipal practice group in which Dunne and Plunkert are employed and which has been handling this putative class action.

         On April 18, 2017, Plaintiffs learned that the Pitzer firm hired McGinty.[2] The next day, during a deposition of two of the named Plaintiffs, Plaintiffs' counsel asked Plunkert whether McGinty had been hired by the Pitzer firm, and Plunkert confirmed McGinty's hiring. On April 25, 2017, Plaintiffs' counsel emailed Dunne about the potential conflict of interest resulting from McGinty's hiring. According to Plaintiffs' counsel, Dunne did not respond. But Plaintiffs' counsel conferred with Plunkert by telephone on April 25, 2017, and with another representative of the Pitzer firm by email in early May 2017. Plunkert and the other representative informed Plaintiffs' counsel that they did not believe a conflict existed with respect to the hiring of McGinty.

         The Pitzer firm has presented evidence that, on April 25, 2017, when Plaintiffs' counsel emailed Dunne about the potential conflict regarding McGinty, the Pitzer firm implemented an “ethical wall” (sometimes called a “Chinese wall”) by which McGinty was “totally excluded” from accessing the files related to this case and any other suit filed by ArchCity Defenders against the City. ECF No. 128-2. The ethical wall was not implemented until eight days after McGinty's first day of employment at the Pitzer firm.

         The Pitzer firm has also presented evidence that its computer records show that McGinty had “not accessed nor attempted to access any of the [City's] files” before or after the ethical wall was implemented. Id. And McGinty and Dunne have both attested by affidavit that McGinty has never discussed the instant case with any member of the Pitzer firm and that McGinty has fully maintained the confidentiality of any information learned or obtained by him while working for ArchCity Defenders.

         No written consent or waiver has been sought from or provided by Plaintiffs with respect to the Pitzer firm's representation of the City. Plaintiffs filed this motion to disqualify on June 7, 2017. Plaintiffs argue that the Pitzer firm's representation of the City violates the Missouri Supreme Court's Rules of Professional Conduct, adopted by this Court, because McGinty would be prohibited from representing the City, and McGinty's conflict must be imputed to the entire Pitzer firm.

         The City responds[3] that the ethical wall the Pitzer firm created eliminates any possibility of a conflict of interest and that Plaintiffs have not met their burden of proof of showing that disqualification is warranted. In reply, Plaintiffs argue that Missouri does not recognize ethical walls as a method of avoiding this type of conflict of interest, and that in any event, the ethical wall here was insufficient to protect Plaintiffs' confidentiality because it was not erected until eight days after McGinty began work at the Pitzer firm.

         On June 23, 2017, the Court granted Plaintiffs' motion to stay all proceedings until the Court ruled on this ...


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