United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
has filed a motion to disqualify Plaintiff's counsel.
(Filing No. 57). For the reasons discussed below,
the motion will be denied.
Tara Delgado and Lacie McGee both worked for Defendant at its
Lakeview facility. Both filed federal complaints against
Defendant,  alleging a former employee of Defendant,
Roy Miller, subjected them to a hostile work environment and
sexual harassment, and that Defendant retaliated against them
for reporting Miller's offensive conduct. Both were
initially represented by Kathleen Neary.
20, 2016, Neary moved to withdraw as counsel for McGee,
Ms. McGee was a supervisor for the Defendant during the
relevant time period in which Ms. Delgado alleges that she
was discriminated and retaliated against. Due to Ms.
McGee's status as a supervisor and the obligations she
had under Defendant's policies as well as prevailing case
law, there is a great likelihood that the movants would be
required to elicit testimony from Ms. McGee in Delgado v.
GGNSC that would be adverse to her.
See 8:16-cv-00107, filing 16. The motion to
withdraw was granted, and McGee obtained new counsel. Neary
continued to represent Delgado.
argues that Neary must withdraw from both cases. Defendant
argues that if McGee was a supervisor whose statements,
actions and inactions can bind the company in Delgado's
lawsuit, Neary was, in essence, representing both Plaintiff
and Defendant in this case and through that representation,
gained access to Defendant's confidential information.
(Filing No. 58, at CM/ECF p. 7-8). Neary argues that
her language in the motion to withdraw was included out of an
abundance of caution; that upon reflection, it is clear that
McGee was not a supervisor or manager who could bind the
company but rather a mere co-employee of Delgado. As such,
Neary claims she is not disqualified from continuing to
represent Delgado. (Filing No. 64).
party's right to select its own counsel is an important
public right and a vital freedom that should be preserved;
the extreme measure of disqualifying a party's counsel of
choice should be imposed only when absolutely
necessary.” Macheca Transport Co. v. Philadelphia
Indemnity Insurance, Co., 463 F.3d 827, 833 (8th Cir.
2006). “Because of the potential for abuse by opposing
counsel, disqualification motions should be subjected to
particularly strict judicial scrutiny.” Harker v.
Comm'r, 82 F.3d 806, 808 (8th Cir. 1996)(internal
decision to grant or deny a motion to disqualify an attorney
rests in the discretion of the [district] court.”
Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1154 (8th
Cir. 1999)(internal quotations omitted). When considering
whether an attorney should be disqualified from representing
a party, the court may consider the ABA Code or Rules of
professional conduct, any rules of professional conduct
adopted by the district court,  the court's duty to maintain
public confidence, and the court's duty to insure the
integrity of judicial proceedings. See United States v.
Agosto, 675 F.2d 965, 969 (8th Cir. 1982). “In
cases where counsel is in violation of professional ethics,
the court may act on motion of an aggrieved party . . . to
disqualify.” O'Conner v. Jones, 946 F.2d
1395, 1399 (8th Cir. 1991). But the Eighth Circuit has not
adopted a bright line rule which requires disqualification in
all cases where an ethics violation has occurred or will
occur unless the attorney in question is disqualified. See
Ark. v. Dean Foods Prods. Co., 605 F.2d 380, 383
(8th Cir. 1979)(overruled on other grounds, In re
Multi-Piece Rim Prod. Liab. Litig., 612 F.2d 377 (8th
Cir. 1980)). The moving party bears the burden on a motion to
disqualify an attorney. Turner v. AIG Domestic Claims,
Inc., 823 F.Supp.2d 899, 905 (D. Neb. 2011).
motion to withdraw-specifically her explicit statement that
“Ms. McGee was a supervisor” whose obligations
under company policies could subject her to adversarial
examination by her own counsel-was not artfully written. But
Plaintiff's counsel does not have the authority to decide
whether McGee's knowledge, actions or inactions are
binding on Defendant such that representing McGee equates
with representing the Defendant itself. That is a decision
for the court, and as to that decision and whether it creates
a conflict of interest, counsel's erroneous determination
thorough review of not only the evidence submitted on this
motion to disqualify, but also Plaintiff's briefing on
the motion for summary judgment, it is clear that McGee was
never Delgado's supervisor. Plaintiff's summary
judgment briefing did not argue that McGee's knowledge of
Miller's conduct must be imputed to the company. The
court is further convinced that if McGee was a supervisor at
all-a fact Defendant specifically denies-she was not at a
supervisory level such that her knowledge of any alleged
harassment by Miller is deemed knowledge by the company as a
whole. McGee ...