Reese v. Virginia International Terminals, Inc., No. 2:2011cv00216 - Document 44 (E.D. Va. 2012)
Court Description: OPINION AND ORDER:The plaintiff's motion to disqualify is DENIED re: 29 Motion to Disqualify Counsel by Terry D. Reese, Sr.. Signed by Magistrate Judge F. Bradford Stillman and filed on 8/2/12. Copies distributed per order 8/3/12.(ldab, )
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FILED UNITED FOR THE STATES EASTERN Norfolk TERRY D. REESE, DISTRICT DISTRICT COURT OF AUG VIRGINIA Division 2 2012 CLERK, US DISTRICT COURT SR. , NORFOLK, VA Plaintiff, Case v. VIRGINIA INTERNATIONAL INC., No.: 2:Ilcv216 al., et TERMINALS, Defendants. OPINION Before A. the Jackson, Esq., ("Montagna a supporting ECF 30. supporting The supporting motion referred 28 was U.S.C. § to disqualify Klein 1248 filed affidavit, and exhibits, a See F. filed affidavits the 636(b)(l)(A) Estate Supp. 2d disqualification of Jones 1304, is a 1248") memorandum 1248 a reply and exhibit undersigned the for v. Beverly 1306 n.l non-dispositive this with February in on March & 8, memorandum Order on IB, pretrial 2012. and 2012. an The pursuant to Assignment of (Apr. Rehab. Fla. 25, opposition, disposition Health (N.D. in on on March Standing L.L.P. together motion, and exhibits, filed and his Lance International ("ILA Local Certain Matters to United States Magistrate Judges 68 Camden, defendant plaintiff affidavit to for Local plaintiff additional motion firm of Montagna counsel The Local ORDER plaintiff's law as 29. ILA with No. the memorandum, Id. together and the Association, ECF No. 2012. is Klein"), Longshoremen's matter. Court AND 1, 2002).-1 Servs., 19 99) matter). Inc., (attorney The Wayne Court Marcus Lance A. 1248. held Dean T. Esq., directing the motion on Inc. on behalf appeared Terminals, parties 2012, exhibits plaintiff appeared Esq., April documents pertinent and the of on April of 25, the plaintiff. defendant behalf ("VIT"). 2012. ILA Local of defendant The official court Jody Stewart. the 8, on appeared on behalf Buckius, Following May Esq., International reporter was On hearing Scriven, Jackson, Virginia a filed to hearing, submit the Court entered supplemental Local 1248 directed. his filed ECF its No. supplemental On affidavit May as Order and ECF No. supplemental 34. an affidavits to the disposition of this motion. ILA as 25 32. affidavits 9, 2012, directed. the ECF No. 35. I. In this claim that action, against his VIT Reese and agreement governing his the Labor Management union, implied ILA Local under connection with DelCostello v. (1983) . As the VIT, his in 29 U.S.C. duty the National against of Teamsters, the amended - 2 collective he alleges bargaining in violation of Section its grievance Bhd. Specifically, breached the breached of so-called "hybrid" Section 301 1248. employment, scheme alleged Local a Relations Act, 1248, Int'l asserts ILA former employer, BACKGROUND - 462 of § 185, fair Labor complaint, and that of his representation, Relations VIT. U.S. 301 See 151, these Act, in generally 164-65 claims & n.14 arise from VIT's after refusal work performing to reinstate restrictions his job Reese's that duties were now employment lifted by seeks his June prevented previously in him physician 2011, from on May 26, 2011. The Montagna in this plaintiff interest over retainer of addition members to 1.6, has period retained to a Local workers 8, 1248, 1248 a conflict 1.18 the union Reese compensation rather itself of of the limited to an as claim arising not have performs work arrangement. in a In various well. injury scope from of to his On April represent respect to that the various routinely represented union sustained Klein on directly employment with VIT. Montagna expressly does billing compensation proceedings 2005, 1248 firm but nonexclusive compensation proceedings with agreement ILA Local and Local The Montagna Klein appears to have 8, 1.10, ILA decades. ILA representing July and constitutes 1.9(a), represented in the course of his Reese consent 1.7, of with pursuant in workers On neck Klein a Reese's Jackson Professional Conduct. agreement union matters, Rules Rules Montagna the without under Virginia for of Klein on the ground their representation of matter matters disqualification him injury. back 11, in 2006, workers The retainer representation injuries and to sustained on a July 2005. On May 22, 2006, Reese sustained - 3 - another injury in the course of his employment On June 6, workers compensation well. of 2006, with This VIT, this time second proceedings retainer representation to a with workers attorney Charles the Montagna at Reese time, case personally until passing it some point in 2009. injury as scope arising from to have met with that Montagna that claim off to his legs. limited the claims and and represent him in to expressly compensation 2006. at shoulders respect agreement sustained on May 22, Morring, his Reese retained Montagna Klein to injuries his to Montagna colleague, denies any handled Charlene personal contact with Reese since at least 2004,2 and Morring has stated in an affidavit compensation In that she personally represented Reese claims April beginning 2008, Reese in April returned on both workers 2006. to work on a trial basis, subject to significant work restrictions imposed by his physician. These restrictions prevented Reese from performing work work as Reese a straddle carrier operator and hustler driver. in included On a "sheltered riding March in 19, work restrictions when driving restrictions 2 It over a employment" pickup truck on 2009, in Reese's response potholes appears and that 1999 2002 to Reese's and workers compensation duties claim. - 4 - with VIT placed his duties roads. issued of tracks. only, personally connection where report railroad Montagna in rough physician limited him to clerical between position, his prior an more stringent increased pain The new work with no riding represented earlier, in Reese unrelated vehicles on rough terrain. described as restroom, where VIT until a unscheduled, 1248 2009, represent grievance in place, work a was snack done. machine, Reese employment Reese claims on him in this and he taking but dispute. denies a the June "hot house," television, remained in 24, which action that assigned any personal a there Reese for an requested that VIT and ILA Local representation in related Montagna Montagna and 2009. against termination and the union's proceedings, to to have met with Montagna one-hour consultation, over his Reese no with terminated his In August Montagna lounge VIT assigned Reese denies contact declined to that meeting with the Reese represent since took before 2004. On Equal August 28, 2009, Employment Reese filed Opportunity a complaint Commission discrimination on the basis of disability. Reese retained Wayne Marcus case, to noted that represent Reese him. had Scriven, At his the April retained him the ("EEOC"), Sometime counsel 25, with of 2012, pursuant to alleging in late 2009, record hearing, a U.S. in this Scriven referral from Morring. On Local race, January 1248, 6, 2010, submitted a written grievance to alleging discrimination and harassment on the basis gender, and disability, bargaining agreement. grievance Reese with the in On January 7, Contract Board, - 5 - violation 2010, a of the ILA of collective the union filed Reese's body established by the collective bargaining bargaining labor. agreement The management deemed union ineligible alleging disability, EEOC was Board further 2010, 16, 2010, the referencing Commission office.3 copies and 3 the of ILA of Morring underlying by the a with not correspondence. not recall whether In the that above, the related to Reese's of Reese race, of was gender, filing of his and initial her to consider stating: the her "I 6 just to Reese, off she other wanted did not at her content advised that was returned context appears Contract than to make contain In the and his - dropped matters correspondence - Contract merit. letter substantive affidavit, EEOC complaint without a had to file proceedings. The Reese Morring expressly disclaimed correspondence lost met from the Virginia Employment respect and was wrote Reese inadvertently destroyed or misplaced. outlined and number day, official. grievance recall correspondence, the same Board union Morring 1248 claims, does basis Contract correspondence Local compensation equal collective bargaining agreement. 2010, Reese an management with VIT. for the In her February 24 letter, representation workers on hearing 24, of collective filed an amended complaint with the the ruled unanimously that February between That employment the 2009. grievance under the On disputes comprised Reese in August represented at interpret representatives. discrimination February Reese's is to and alleging retaliation complaint On resolve Board for On January 21, EEOC, and Contract and agreement to sure of the copies she of could Reese of the to his or events have been Board grievance that you understand that matters but workers' will I do not represent continue to represent compensation benefits." On November compensation 15, 2010, hearing, and you ECF No. Morring you on either of those 34 in your attach. represented Reese Reese presented claims 2, at testimony at his for 9. workers on his own behalf. On Right February 3, to Sue. complaint counsel in 2011, On this the EEOC provided Reese with a Notice April action, 15, 2011, with Reese filed Scriven entering the his original appearance judgment, 2011, together exhibits. ECF VIT with Nos. filed a motion to dismiss a supporting 5-7. In its memorandum, supporting and for summary affidavit, and memorandum, VIT suggested that the plaintiff had failed to join ILA Local necessary party to in the litigation. VIT's Mem. Supp. 1248 9 n.2, as a ECF 6. On May restrictions 26, 2011, work restrictions VIT President employment physician to ILA Local reinstated. of ILA Local to VIT, be a Shortly thereafter, be restrictions Reese's to permit Reese to work as or hustler driver. with as of record for the plaintiff. On May 24, No. of On 1248, 1248, June reinstated. - 7 - Reese 30, a his work straddle carrier operator conveyed the requesting that conveyed together with a revised 2011, copy letter his Thomas of the revised employment M. Little, revised work requesting that Reese's Meanwhile, U.S. on Department Reese through 21, workers was the VIT filed compensation decision and a case. for June order, Morring noting request on July 8, 2011, dismiss and for counsel requested a benefits, this Court held a leave judgment. to file defendant. The file a written motion 26, granting partial On in VIT filed behalf for for which its the filed for reconsideration. the dates 26, 2009. Morring Reese's the a On an Reese response to 2011. summary a and June 2011, on of order reconsideration 22, request a miscalculation receive On July 21, as filed judge of temporary beginning motion On and continuing period law for the period April Reese's behalf to VIT's motion 2011, 1248 a disability benefits for to Local an administrative entered 2009, eligible that Labor 23, response on errata 2011, June 2011, 24, 9, benefits disability June of temporary total 2009, June June for leave At an hearing on VIT's motion to the amended Court hearing, plaintiff's complaint directed to amend the the adding plaintiff ILA to complaint within ten days. On workers July 26, 2011, compensation and entered an errata of disability temporary 2008, through case administrative denied VIT's order correcting benefits partial the awarded disability December 31, to - 8 - motion the dates for judge for Reese. benefits 2008, law temporary Reese's reconsideration and total Reese the in was period total amount awarded April 26, disability benefits for continuing beginning the period January 1, temporary June 26, On August in this as a 1, case. partial 2009, through disability benefits for 2009, the and period 2009. 2011, Reese filed a motion to amend the complaint The proposed amended complaint defendant June 23, and alleged breach of the added ILA Local union's duty 1248 of fair representation. Based learned of His on records, Montagna Reese's claim against ILA Local billing discuss billing records Reese's Two weeks reviewing indicate claim against later, "Mr. a letter Reese's or to Reese's Reese. Little, claim the on August he 2011, That final in The next day, ILA against Local the called he first on August 1248 that 11, 2011. Scriven that day to union. 25, matter." compensation decision became either VIT that reports Montagna billed time same the absence August 1248's union. day, 26, of 2011, president, Montagna Reese's an for workers appeal by Montagna wrote advising him acknowledges of having participated in "a number of discussions by telephone" with Scriven between August Scriven raised interest, if ILA with and December of the issue suggesting that Local Reese. acknowledges 1248 and VIT During that he of At were have some point Montagna's Reese might this may 2011. to same 9 into a - Reese's the way, conflict to waive the five-month discussed - potential agree enter along global period, claim of conflict settlement Montagna with union officials without on other billing his time documents reviewing amended occasions, and complaint in On October 19, to in the district The meeting with 2011, the Court file a recommended to that motion to and VIT's dismiss claim, but his 27, 2011, advise the December above 5, on October No. characterized this a further subsequent in amended presiding for its The Order of complaint a is nothing Reese Morring further 2, at wrote for me Accordingly, attach. letter as 4. I of to to will ILA December few days do be Reese to regarding closing Local 1248 my has having terminated the attorney-client and the Montagna Klein letter to Reese on December representation condition. Court after the workers Reese in 12, connection firm. 2011, with a modification of his workers compensation award based on a his summary infliction denied. two months final, matter. 34 relationship between wrote became "there referenced ECF Reese's 2011. decision him that files." formally the intentional otherwise filed Reese time signed copy of the amended 1, compensation discuss further distress Meanwhile, to spent granted Reese's motion to amend recommendation later on also matters, detail. subsequently adopted that 2011. other undersigned judge emotional He Little judgment be granted with respect to Reese's of with Reese matter. the complaint and directed him to complaint. connection See generally 33 - U.S.C. 10 - § 922. Morring declining possible change in At the exchanged appears same a time series in of early December, letters. On ILA Local 1248 against Scriven that he would not accept the with a December to have written Scriven to confirm that defending on union's letter behalf. to On Reese's December Montagna, 12, discussing the conflict for discussions. On responded Scriven to representing the in settlement Montagna, appearance December talks. the in the On him the case his the Klein One month later, as advise Scriven responded Klein firm's of settlement appears have withdraw to to from 2011, once record Scriven would they for be wrote to moving to entered the their union. served on ILA the union filed its answer to with Lance A. appearance to amended complaint the amended complaint was 2011, Montagna invitation to participate 14, of and purpose plaintiff counsel Scriven Montagna would be Montagna the firm 2011, Montagna declining December On January 19, entering 1248. as 2011, amended complaint, firm 2011, letter, that Montagna On December 29, Local 1248.4 by 13, and Reese would be willing to limited union and declining advising disqualify the 2011, the 9, claim, service of the conflict of interest and suggesting that waive Montagna Jackson of the Montagna Klein counsel the plaintiff of record filed the for ILA Local instant motion. 4 The Court notes that the union has objected to the manner of service of pertinent the to amended resolution complaint. of the - That dispute, however, disqualification motion. 11 - is not II. The Court In first considers determining conflict of weigh the but, in ANALYSIS the whether interest, proper preventing to is "the disqualify counsel the trial of of the bar appearance resolve court Fourth Circuit: is for not to "with hair-spliting nicety" exercise power over the members of the to circumstances the guidance of all its supervising and with the view of impropriety," doubts in it favor of disqualification. United States (citations v. Clarkson, omitted); 591, 602 made in perspective As (E.D. this It Va. is, of to the right free be of Sanford, Tessier v. (E.D. Va. a F. While, the and insure the 2d (citations as the assessment must be and Moreover, a high and held of his to the Court's standards preserve of trust Accordingly, the client's standards party standard is has maintenance the of counsel of of the in the seeking proof warranted. to These settled. at 602 (citations Inc., 731 omitted) F. Supp. (quoting 724, omitted)). Fourth Circuit to Court between the system counsel bar.'" professional has are well assessment F. 1977) 2d retain ethical Plastic Surgery Specialists, 1990) 687 Cir. Supp. our importance disqualification Supp. {4th case."). to this balance community." that 687 to of in retain highest counsel disqualification show the conduct ethical principles n.3 the the free to 'secondary in must choice legal one integrity highest be "However, of maintain "[t]here 273 Virginia, of important the parties professional in Sanford v. realities course, choosing is duty 270, previously observed: choice. the F.2d ("In other words, the has that their that of of justice see also 2009) Court 567 be made - 12 explained in Clarkson, in - a disqualification 729 motion it is cannot be made with nonetheless must be a fanciful real Put simply cannot of could lead rule than whose might to in act fact at Inc., 966 speculation counter to occur." judgment of the is lawyer some intuition 1978), and Richmond 1086, v. 145-46 Co. United 1089-90 The his or surmise client's likely to be on indicator the part to warrant of (4th Cir. 1992), 570 F.2d v. of counsel." the (quoting Shaffer v. Hilton Assocs. notes is stronger necessary States, (4th Cir. Court "a applicable (citations omitted) Surety that theoretically independent counsel F.2d 142, or a The judicial 602-03 one disqualification "drastic step of disqualification Id. conflict hypothetical way, occurrence Accordingly, opposing asserted disqualification when the requires affected. a another counsel professional the be based on mere events interests "hair-splitting nicety," that one and not one. chain true and citing Aetna Cas. 1197, City Farm Fresh, 1200-01 of (1990); & "the law it is fiduciary duty."); attorney has loyalty is lawyer's a clear of Conduct, Prof'l 391 v. that Tessier, duty respect to current R. No. a duty of F. 1.7 & 1.7 to his 690 F.2d loyalty F.3d 488, owes 733 his or has Chauffers, U.S. 558, 586 492 ("[U]nder her client a (recognizing that an of and 1.9 of the Virginia Rules of cmts. 13 494 long duty govern - 120 Supp. of respectively. [1], - client) . conflicts and former clients, Conduct Terry, lawyer loyalty which v. Ebner, 731 reflected in Rules Professional Va. Local see also Dyntel Corp. Virginia Cir. 1982)). that Helpers, (4th Richmond, precluded the representation of conflicting interests." Teamsters & [6], [8]; This interest with See generally Va. R. Prof'l Conduct 1.9 & cmt. attorney-client attorney [3].5 privilege undertakes generally Va. The principles of confidentiality and the R. to Prof'1 are also concerns represent Conduct implicated conflicting 1.6; Va. R. when interests. Prof'1 Conduct 1.7 an See cmt. [30]. A. Rule provides 1.7 Concurrent Conflict of of the Virginia Rules Interest of Professional Conduct that: (a) Except as shall provided not representation of in paragraph represent a interest. A concurrent exists (1) representation of directly (2) there adverse a be lawyer's of or by personal former Notwithstanding of (1) the lawyer (2) the or a be to the another the a lawyer. concurrent (a), a if each affected consultation, able clients by paragraph client the third person of of be or that more or a interest reasonably diligent affected of will client; limited under after lawyer will and client risk existence interest consents the one client lawyer may represent client one responsibilities a conflict the conflict conflict another materially client, (b) to significant representation a lawyer if if: is will a involves a concurrent interest the (b), client believes to provide representation and: that the competent to each client; representation is not prohibited by law; 5 The ethical standard for the practice of law in civil cases in this Local Court Civ. R. is the Virginia 83.1(1); see Rules also - of Professional Sanford, 14 - 687 F. Conduct. Supp. 2d at See 601. (3) the representation assertion against lawyer of a another client in the same proceeding before (4) the R. 596, Prof'l Conduct 1.7; not involve by one in see the client represented by the litigation a tribunal; from consent memorialized Va. does claim the or other and client is writing. also Sanford, 687 F. Supp. 2d at 601. Rule provides 1.10 of the Virginia Rules of Professional Conduct that: (a) While of lawyers them are shall associated knowingly in a firm, represent a none client when any one of them practicing alone would be prohibited 1.9, (c) or from waived by conditions R. Prof'l The Conduct conflict Rules 1.7(a)(l) Local 1248 the learned of Reese's continued to October 27, Rule at issue that It adverse Montagna Rules 1.6, 1.7, client Rule may under the 1.7. law this case is beyond cavil that in Klein firm's later this in federal attorneys than August Scriven Reese in his workers when Morring wrote - 15 - to to under Reese and ILA Charles 11, arises lawsuit. representation of claim and called represent 2011, affected in interest action began no of by 1.10. are directly affidavits this of the stated and 1.10(a). Charlene Morring, in so A disqualification prescribed by this be Va. doing 2.10(e). Based on Montanga ILA Local 2011, and 1248 when Montagna discuss it, and it compensation case until advise Reese that she had closed her file.6 F. Supp. 1392, See SWS Fin. 1398 (N.D. lawyer-client with the transpire order to 111. relationship inconsistent 1398-99 in attorney-client between current and of Moreover, its representation of representation of Servs., for ILA Local Reese 28 See Fed. Rule 1248 in that workers point JTH App'x disqualification counsel under at was this Tax, 207, not id. at terminate an Klein was the H Cir. "existing & R 2002) law Block client" of matter "sufficiently dormant to make [counsel]'s duties in the workers 6 The continued but the to is has represent particular not material to been compensation case plaintiff or Reese the argued that event and 16 of - opposing to [movant] filing motion just weeks before Montagna the Montagna time which the Montagna disposition - upon Tax in an unrelated actively him for some period of date relationship between had E. nor (party moving it papers a firm's dormant represented Morring also commenced its neither v. (4th Klein counsel ^ministerial'") . firm compensation case 1.7 where purely period plaintiff, matter, Inc. 218 an must time. course by the time Montagna ministerial. Inc., that also eleven-week the a Something Montagna against although the plaintiff s had largely run purely directly the see can an 790 established, relationship that for 2011, firm at the events Thus, October the of Inc., easily. relationship."); three 1248 P[0]nce terminate continuation the ILA Local client not the Saloman Bros. 1992) relationship) . August represented does end (identifying Fund A v. this after Klein firm that date, the attorney-client Klein firm terminated motion. began representing administrative later. In Morring's law the have interim, if Reese legal expected Morring an Indeed, until could have reasonably VSB *3, and (Va. 1.10 award might Dkt. No. Bar require appeal 27, that Montagna Reese. But perfunctory firms of to Montagna current status of even assuming the 2011, a preliminary query to his five Reese was a current interest. 2004 of on the could also letter, on August the him 25 Reese him with also legal WL Nov. did of should the - 17 firm. - have re *l-*2, 1.7 conflict allegations representation Reese a In {Rules not personally even have represented Reese and Reese's current or 2004) at reasonable had personally search partners 5681495, 19, relationship with database check would See generally implement that Montagna client rely represent before conflict of Morring's firm's law to be merited. 05-000-1513, knew two weeks Reese to provide the appeal an to 2011, compensation proceedings, suggest expected whether Disciplinary Bd. law clearance procedures). in past workers be and change-in-condition modification to his the most State *15 file particular conflict Butterfield, until relied on Morring on whether seeking a revealed this final continue her October even not on to deadline. Finally, case, decision was merited. to compensation this was advice opted workers in could had advice VIT and 1248 decision law judge's reasonably appeal Local judge's judgment administrative ILA readily know the on August simple, of 11, informal revealed that Reese has declined to give his consent firm's representation of ILA Local informed consent by both clients, prohibited under the Virginia 1248 to the Montagna Klein in this matter. Absent such conflicted representation is Rules undertaking to defend ILA Local of 1248 Professional Conduct. against Reese's claim, In while at the same time representing Reese in related workers compensation proceedings, Rules 1.7 the attorneys of the Montagna Klein firm have violated and 1.10 of the Virginia Rules of Professional Conduct and breached the corresponding duty of loyalty they owed to Reese.7 B. Having determined representation and 1.10 must of next 7 As 1.7, the is detail. not But Montagna in this matter of the grounds client client firm had a it Rules Professional law for Montagna former the 1248 whether alternate prospective that ILA Local the Virginia that governing Klein of determine contends Disqualification firm's firm conflicts, concurrent necessary also of examine for the his See R. Prof' 1 Va. Moreover, hybrid Section Conduct 301 1.9 (a); with Charles Montagna are credible; establish be 1.18(c). Local conflict of 1248 Thus in interest if received significantly harmful Conduct ILA that Montagna even to Reese this under action either - 18 in the same or substantially against ILA 731 F. internally fully in this Klein does Rule - to Rule grounds addressed below, Local Supp. 1248. at 730. inconsistent and credited, information the Montagna pursuant regarding alleged face-to-face not but governing the Montagna alternate Tessier, conversations entirely 1.9, reasons claim Reese's various affidavits from plaintiff Rule 1.18, interest these Reese's workers compensation claim is not to the violated Rule 1.7 the Court disqualification and conflict the Court notes that, related Conduct, Having determined that to firm's violated Rules disqualification, Klein conflicts. Klein they from Reese fail that case. See Va. firm's representation not 1.9 involve or Rule a R. to could Prof'1 of prohibited 1.18. further representation of appropriate sanction. Inc. v. at 790 F. the *2 result Supp. a 1980)); 2007 2907323, Enters., Pa. that in Wyeth Cliff at v. Found., *5 4, Co. (N.D. No. 624 v. Civ. App'x at No. see 218; is the Lifenet, 3:06cv387, also SWS A. F.2d 2007 Fin. an rule WL Fund A, prohibits 4, the F. Supp. No. 2004 2d 1201). As 457 v. David at *1 disqualify of F. 453, 2480836, should 692 1201 1:07-CV-485, an the appropriate means Wyeth, an never 1198, Argue WL facts is F.2d 2007); court on 624 Co., S.S. Oct. rule." at 692 02-9521, determines, is Miller, Am. "[T]he disqualification Miller, matter disqualification Labs., Ohio 2004). it this disciplinary case, Abbott applicable disciplinary (quoting Fed. 2007); a a Sales Inc., Nov. that 19, 28 in ("Although disqualification is ordinarily finding attorney only when the Apr. 1248 (quoting United States v. 2010); WL Va. 1399-400 (D.N.J. case, See JTH Tax, appearance automatic") (3d Cir. (E.D. at of attorney's (E.D. Local Musculoskeletal Transplant 1169191, Davis ILA particular of Supp. previously enforcing 2d at noted, 457 "the party seeking disqualification has a high standard of proof to show that disqualification is warranted." Sanford, 687 F. Supp. 2d at 602. "Disqualification is one of enforce the prophylactic conflicts and civil remedies non-payment of (i.e., legal fees) three rules. malpractice can also be - 19 - sanctions available to Disciplinary proceedings suits and effective defenses for sanctions." the SWS Fin. Fund example, F. an conflicted Supp. at 1400 (citations representation, appropriate Virginia State Professional Fed. 790 omitted) . For where the movant has suffered no prejudice as a result of counsel's that A, App'x remedy Bar for Conduct, at than costs of upon client . expense of of has Virginia the counsel disqualification. innocent . . may and is a third suffer will be When sometimes master ... blunt disqualification counsel. held to Rules JTH Tax, the of 28 device. foists parties. delay, The substantial The innocent inconvenience deprived of its disqualification and choice is of granted, the new attorney may find it difficult to fully the complex subtle case . . adversarial process. lose Circuit referral violation rather Disqualification a be Fourth 218. sanction of may the the time in itself and legal . , Of the and factual actually course, labor the nuances impairing the court may also invested in proceedings educating prior to disqualification. SWS Fin. Fund A, [W]ith 790 rare ordered only where an in commonly 1400-01. disqualification essentially two the potentially at exceptions kinds conflict court's attorney's more Supp. attorney's undermines the F. of confidence representation (2) in where a the of in of the his to use side representation, Bd. of Educ. (citations In his (1) . . of or least privileged through prior client an (2d Cir. advantage. v. Nyquist, and footnotes this giving vigor at present thus . client, is information concerning the other unfair been cases: interests attorney position has case, there 590 F.2d 1241, 1246 1979) omitted). is nothing - 20 - to suggest that the Montagna Klein firm's overlap in representations compromised its ability to represent either client with vigor. The eleven-week overlap was relatively brief and came at a time when both cases were focused on procedural rather representation of final than substantive ILA Local 1248 in this order had been entered in (albeit two weeks VIT's decision ended months before not to before in suggest law action that the undermined activity in the cases. union order and was case. firm's The workers its became with alleges representation compensation firm's compensation case final representation served Reese law action began only after a actually representation workers completed before the in this case.8 this its Reese's appeal), the amended complaint that activity. of and the Reese: case that union all appears the would in this substantive to law firm took up its defense of Reese answered nothing of of upon have ILA Local been 1248 There was no overlap in personnel between the two Reese's expectations of trampled" that as sanction. were of Montagna disqualification warranted loyalty a See SWS the Fin. Fund not A, so "cavalierly Klein 790 F. firm is Supp. at 1402. There is also nothing to suggest that ILA Local 1248 has gained an unfair advantage through access to privileged information obtained through 8 Moreover, representation its prior representation of Reese. there is nothing to suggest that of the union in this than vigorous. - 21 - case has been "It is well the law firm's anything less settled that once established, an information was Tessier, Supp. 731 914, his all prior consider The brought conveyed Supp. at (E.D. to Va. in in by "the the the first relationship a first In order for an to client."). Thus have Tessier, employer, injury to be F. been (2) arising arising out in (1) occasion, [his] of the time (2) injury and that it was incident or that resulted it structural sudden to conditions are the result committed fellow in be of willful injured of the within the period is the of reasonably it in excludes a if an - of - or injury all was tort or *in takes at a his a the place place and while incidental is these employer it injury which 22 (3) injury employment, duties and occurs when a identifiable the employee's something at particular An reasonably be, fulfilling doing To intentional accident the (3) mechanical if and/or employment' employee may or engaged However, "An and event, obvious even the claimant must upon must been 730. accident; suddenly accident" a course where "by employee. a caused by an satisfied, under by the human body. the by and an at employment. precipitating in change considered place have the plaintiff's appeared in compensation claim employment; [his] F. confidential Supp. injury "injury by accident," that particular of course the establish an prove an Court would compensable Compensation Act, 514 access VIT. injury (1) the that involved a workers his have matter." an attorney had obtained 731 Virginia Workers' must prior he been confidential that which representation representation the law presumes could See against in that has In re Asbestos Cases, information lawyer second." Reese ("The of arises attorney see also 1981) confidential whether the 731; representation information relevant attorney-client irrebuttable presumption F. 920 possesses an he employment thereto." cannot fairly be traced to the proximate the worker apart Wain cause which from the v. Trammell 2044950, at Montagna *4 Klein confidential 2005 work Va. firm The brought Local second by employee thus LLC, 24, be regarding injuries, (e.g., and both representation F.3d 651, In 656 order union's must any his 1) the that 2) (4th Cir. to show of resultant reason a is faith." or . poor the fair . Simple for his his 301 either party, breached employer its duty violated breach for has and that ... a A been negligence, will conduct must be disregard the members' ^grossly union breach conduct - not deficient' 23 - or is breach in the of the toward a in bad ineffectiveness, rather rights." a handled "there outcome discriminatory of plaintiff that a erroneous claim, his establish "the or in claim union, Aluminum Co. however, representation of causes and against union faith, an "arbitrary, . Reese's claim proceedings." judgment, received of hybrid Section VIT, merits believe The crash). grievance to WL work restrictions potential union's duty occurs when a union's member have Thompson v. a in bad duty contributed to contractual 2005 omitted). to representation, his or 1:05CV00043, 2002). fair that substantial to exposed circumstances other that establish duty hazard (citations employer, on and perfunctorily, of No. the the collective bargaining agreement." 276 a equally presumed a motorcycle against prove contributing from 2005) can "[T]o prevail must a been representation involves Reese 1248. Aug. physician, restrictions comes have Invs., information his which would as employment. and 2006 workplace imposed by fair and Hotel (W.D. employment a union's reckless ILA an of the of Am., Int'l Longshoremen' s Int'l Terms., noted previously, VIT's refusal Assoc, Inc., to 904 S.S. F. Clerks Supp. Reese's 500, hybrid reinstate Local 508 Section Reese's 1624 (E.D. 301 employment v. Va. 1995). claim in Virginia As arises June 2011, from after work restrictions that previously prevented him from performing his job duties were The lifted by his focus of this agreement, VIT's employment, and the grievance. There firm obtained subjects in compensation receive to its proceedings. the his suggest that reinstate work the Reese's Montagna touching of confidential Reese on in information injuries the disposition of his hybrid Section 301 is Klein these workers it did and restrictions circumstances of his 2005 and 2006 workplace relevant to bargaining reinstatement-related information now-defunct 2011. collective representation Any Reese's the refusing confidential of on handling of nothing course regarding is for union's any the action reasons is physician on May 26, the simply not claim against VIT and ILA Local 1248.9 Finally, suffered by the Court each of turns the the potential parties. The represented the union in various matters apparently matters including concerning prejudice that may be Montagna for more the very Klein firm has than two decades, same collective 9 Indeed, the Court notes that Scriven's conditional offer to waive the betrays conflict a lack communicated union's in advantage for the purpose of concern the first against of global that any representation Reese - in 24 this - settlement discussions confidential might action. be information used to the bargaining from agreement this counsel, case but expertise. Klein finds that does App'x at of not any not not of ILA 218. relevant Morring, Montagna Klein and Camden, Professional the disqualify The and Order and union while contrast, Reese prejudice to concurrent in this case. Reese, conflict from See A. of JTH of further Tax, 28 case, attorneys Charles Montagna, Jackson, to the the and the Virginia 1.10(a) law State firm Bar of for of the Virginia Rules Conduct. foregoing (ECF No. Clerk is to: James E. In of delay in this disqualification and Rule III. For experience circumstances presented in this L.L.P. violation of Rule 1.7(a)(1) choice that he would suffer if firm's referral Lance its some the case. Klein 1248 Under the of disqualified. its Local only disqualification incurred by the articulable justify Its likely be costs itself with the Montagna Charlene 707 union specifically additional appropriate sanction is Bar, case. there would firm is absence representation of the with familiarized the interest the as this identified any particular prejudice In Fed. in deprive counsel well the Montagna Court issue Additionally, counsel has not would of litigation as new at Main 29) is further reasons, Ste. the plaintiff's motion to DENIED. DIRECTED McCauley, St., CONCLUSION to mail Legal 1500, - Ethics Richmond, 25 - a copy Counsel, VA of this Opinion Virginia 23219-2800. State IT IS SO ORDERED. F. Bradford Stillman United States Magistrate Judge UNITED Norfolk, August Virginia ^~ , 2012 - 26 - STATES MAGISTRATE JUDGE
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