United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' motion (ECF No.
111) to disqualify defense counsel, Peter J. Dunne, Robert T.
Plunkert, Jessica L. Diamond,  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.
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
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
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.
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.
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.
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
April 18, 2017, Plaintiffs learned that the Pitzer firm hired
McGinty. 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.
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.
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.
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.
City responds 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.
23, 2017, the Court granted Plaintiffs' motion to stay
all proceedings until the Court ruled on this ...