Ewing v. Moore et al, No. 7:2017cv00743 - Document 52 (N.D. Ala. 2018)
Court Description: MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 4/19/2018. (PSM)
Download PDF
<![CDATA[
FILED 2018 Apr-19 PM 04:00 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRCIT OF ALABAMA SOUTHERN DIVISION TAMMY EWING, et al., ) ) ) ) ) ) ) ) ) ) Plaintiffs, vs. SARAH MOORE, et al., Defendants. 7:17-cv-00743-LSC MEMORANDUM OF OPINION Before the Court is Defendants Sarah Moore, Lloyd Moore, Alabama Credit Union Administration, Steve Nix, Joey Hand, Linda Cencula, Charles Faulkner, Greg McClellan, and Greta WebbMotion to Disqualify , Counsel. (Doc. 39.) The motion is fully briefed and ripe for review. Motion to Disqualify is due to be granted. I. BACKGROUND brought suit pursuant to Title VII and § 1983 against the and the other defendants Page 1 of 9 for discrimination surrounding their terminations. Defendants seek to disqualify Barry Frederick from representing the Plaintiffs in this action on ). Though no claims have been asserted against Alabama One, Defendants insist that Frederick provided representation, legal advice and consultation to Alabama One with respect to certain facts and circumstances that are relevant and material to this case. II. STANDARD OF REVIEW Motions to disqualify counsel are governed by the professional conduct codes of the state where the federal district court resides as well as by federal common law. See Herrmann v. GutterGuard, Inc., 199 Fed. Appx. 745, 752 (11th Cir. 2006).1 Id. (internal Id. at 752 (quoting l Hosp., 689 F.2d 938, 941 n.4 (11th Cir. 1982)). The party advocating for disqualification In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003) (citations omitted). The moving party must show more 1 -2. Page 2 of 9 than the mere fact that as a result of a former representation, the attorney has must demonstrate that the attorney has knowledge of the particular practices and procedures which are the subject matter of [the] suit. Herrmann, 199 Fed. Appx. at 753 (internal citations omitted). Though there is a presumption that parties are entitled to their counsel of choice, the right to choose counsel is not absolute if it interfere[s] with the orderly administration of justice. Id. at 955-56 (the right may be overridden if compelling reasons exist). III. DISCUSSION Alabama Rule of Professional Conduct 1.9 specifies the actions that counsel can take in regard to a former client. See Ala. Rules of Conduct R. 1.9. Rule same or a materially adverse to the interests of the former client, unless the former client Ala. Rules of Prof Conduct R. 1.9(a). In order to succeed in their motion to disqualify, Defendants must first show that Alabama One Credit Union is former client. Defendants must then show that the current matter is substantially related and materially adverse to Page 3 of 9 interests. Lastly, Defendants must show that Alabama One has either not consented or has inadequately consented to the current representation. Defendants adequately satisfy the burden of showing that Alabama One is a former client2 of Frederick. Frederick formerly served as outside labor and employment counsel for AOCU and was paid monthly until the relationship with Alabama One ended around the time it was conserved on August 27, 2015. (Doc. 39 at n.1) Because Alabama One no longer pays Frederick, and because Frederick no longer provides legal advice to Alabama One, it . Defendants also adequately satisfy their burden of showing the current representation is the same or substantially related to the former representation and interests are materially adverse to the interests of the former client. When discerning if something , focus representations, Herrmann, 199 Fed. Appx. at 75253. Here, Frederick provided significant advice to AOCU regarding investigations into sexual harassment claims that were made by Crawford against Darin Davidson during the time Frederick served as outside labor and employment 2 In his Response, Frederick concedes that AOCU is his former client. (See Doc. 45 at 6.) Page 4 of 9 counsel for AOCU and was . (Doc. 39 at 8-9.) Frederick also gave advice to AOCU regarding Whitney prior sexual harassment disclosures. (Doc. 45-2 at 2, Carruth Declaration.) Now, Frederick represents Crawford, who bases her two counts of retaliation on the same sexual harassment investigations and conduct underlying those investigations. (Doc. 39 at 9.) Crawford alleges Oswalt had a history of sexual harassment, which is directly AOCU concerning Oswalt. (Id.) Because both matters arise out of the same set of facts, and are simply a continuation of those facts, the matters are substantially related for purposes of Rule 1.9(a). Additionally, the current clients interests are materially adverse to the interests of the former client. Though Plaintiffs brought an action against the Alabama Credit Union Administration rather than AOCU, representation by Frederick is still materially adverse to AOCU. Because of the way a conservatorship functions, ACUA as conservator takes over the entire operation of a company (here, Alabama One) and functions on behalf of that company. Thus, ACUA took over operation of Alabama One and ran it just as any employee of Alabama One would. For example, Alabama One, not ACUA, fired Ewing which shows that Alabama One rather than ACUA was active in its operation through the conservatorship Page 5 of 9 . (See Doc. 51-1 at 8.) As of February 15, 2017, Alabama One conservatorship by the Administration (ACUA). (Doc. 51-1 at 5.) Currently, Alabama One is spending considerable time, effort, and resources to defend against the claims brought by the Plaintiffs. (Id. at 2, Declaration of William C. Wells, current Alabama One CEO.) Alabama One had to retain attorneys to represent its interest. (Id.) Also, Alabama One defending against the employment claims triggers its insurance coverage. (Id.) In sum, the current matter is both substantially related and adver . Lastly, Defendants must show that AOCU has not consented or has inadequately consented to the current representation. Though John Dee Carruth ), while acting as CEO of Alabama One, gave Frederick permission to use information gathered during the sexual harassment investigations as Frederick saw fit consent is inadequate to avoid a Rule 1.9(a) disqualification. (Doc. 45-2 at 2, 4.) The comments3 to Rule 1.9 specify that a waiver is effective only if the attorney with the conflict discloses the circumstances of the suit to the behalf of the new client. Conduct R. 1.9. Consequently, before Carruth could give consent, Frederick had to inform Carruth of the circumstances 3 Page 6 of 9 of the current suit as well as Frederick s role in the new attorney-client relationship. Carruth gave consent before the new suit was filed and before Tammy Ewing, Denise Crawford, and Martie Patton had become clients. (Doc. 51 at 3.) Thus, his consent is invalid. After representation of the current Plaintiffs began, there is no evidence that Frederick sought any kind of consent from AOCU or disclosed the circumstances of the suit to anyone at Alabama One. (See Doc. 51-1 at 4.) Because Carruth gave consent too early for it to be effective, the Court finds that the consent is invalid, and a Rule 1.9 conflict still exists.4 An exception exists under Rule 1.9 which allows an attorney to use information against a former client if that information is generally known. See Ala. Conduct R. 1.9(c).5 Frederick procured information relevant to the current litigation via his role as counsel to AOCU internal investigations. Aside from the Plaintiffs possessing some of this information personally, no evidence has been presented that the information is generally known. (Doc. 45-2 at 2, 4.) This premise does not change even if Plaintiffs also 4 Because Frederick is disqualified under 1.9(a), there is no need to address the other possible disqualifications advocated by Defendants. 5 A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except . . . when the information has become generally known; or (2) reveal information relating to the representation . . . .” Ala. Page 7 of 9 knew the information, because internal investigation information is by its nature confidential.6 As such, the information does not fall within the general knowledge exception, IV. is still violative of Rule 1.9. CONCLUSION For the reasons stated above, Defendants Motion to Disqualify Counsel is due to be GRANTED. Barry Frederick7 cannot represent Plaintiffs without violating Rule 1.9 of the Alabama Rules of Professional Conduct. Plaintiffs must procure a different attorney to represent them for the remainder of the litigation. An Order consistent with this Memorandum of Opinion will be entered contemporaneously herewith. 6 In his Response, Frederick focuses on whether or not the information he obtained was confidential. In one of its ethics opinions, the Alabama State Bar opined that : There is a presumption that a lawyer has gained confidential information in the prior representation of a client. That can be rebutted by the lawyer. There is also a presumption that if a lawyer possesses confidential information that he will potentially use it in a way adverse to the former client. In that sense, if the confidential information is in any possible way disadvantageous to the former client, the lawyer is disqualified. Ala. State Bar Op., RO-94-13. The Court finds that Frederick failed in his attempt to rebut the presumption that the information he gained while representing Alabama One was not confidential. Additionally, Defendants have shown a number of ways in which the knowledge Frederick possesses as former counsel for Alabama One could be disadvantage to ACUA. As such, Frederick is disqualified. 7 The Court declines to 46) was granted on Jan 31, 2018, making the motion to disqualify moot as it pertains to her. Page 8 of 9 (doc. DONE and ORDERED on April 19, 2018. _____________________________ L. Scott Coogler United States District Judge 190685 Page 9 of 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
