Plonsey v. Lanigan et al, No. 1:2018cv02104 - Document 16 (N.D. Ohio 2019)
Court Description: Opinion & Order signed by Judge James S. Gwin on 2/8/19. The Court, for the reasons set forth in this order, grants defendants' motion to disqualify. The Court orders Attorney Zink-Pearson to withdraw from representing plaintiff. (Related Docs. 13 and 15 ) (D,MA)
Download PDF
<![CDATA[
Plonsey v. Lanigan et al Doc. 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ----------------------------------------------------------------: : : : : : : : : : : JAMES PLONSEY, Plaintiff, vs. GERALDINE LANIGAN, et al., Defendants. CASE NO. 1:18-CV-2104 OPINION & ORDER [Resolving Docs. 13, 15] ----------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Plaintiff claims that Defendants breached an agreement to sell their home health care business. At the Court’s January 8, 2019 case management conference, it came to light that Pla“nt“ff’s counsel Elizabeth Zink-Pearson previously represented Defendants. The Court asked the parties to submit position papers discussing whether Pla“nt“ff counsel’s prev“ous representation posed an ethical issue.1 The Court construes Defendants’ response as a motion to disqualify Pla“nt“ff’s counsel.2 For the following reasons, the Court GRANTS Defendants’ motion to disqualify. I. Background Beginning in 2010, Plaintiff counsel’s firm Pearson & Bernard provided legal advice to Defendants. The firm advised Defendants regarding various Medicare-related issues and revisions to their business operating agreement.3 The parties also agree that, in 2016, Zink- Docs. 13, 15. Plaintiff originally filed his response without exhibits. Doc. 14. The Court grants Pla“nt“ff’s motion to refile the motion with affidavit exhibits. 2 The Court also would have the power to disqualify counsel sua sponte. See Lamson & Sessions Co. v. Mundinger, No. 4:08CV1226, 2009 WL 1183217, at *3 (N.D. Ohio May 1, 2009) (collecting cases). 3 See Docs. 13-1 at 1; 15-1 at 2. 1 Dockets.Justia.com Case No. 1:18-cv-2104 Gwin, J. Pearson assisted Plaintiff in negotiating and drafting the letter of intent that is at issue in this lawsuit.4 However, the parties dispute how far Zink-Pearson’s representation went beyond these matters. Defendants state that they met with Zink-Pearson in 2012 to discuss revisions to their corporate records in anticipation of sale.5 Defendants also say that they shared confidential business information at this meeting, and that Zink-Pearson suggested a potential purchaser.6 The Defendants unsuccessfully discussed a potential sale with this buyer. Defendants say that they sought Zink-Pearson’s adv“ce on sale-related matters again on several occasions between 2013 and 2016.7 Zink-Pearson, on the other hand, denies that she advised Defendants after 2012. 8 She admits that she did suggest a potential buyer at a May 2012 meeting with Defendants. But she denies that she otherwise advised Defendants regarding the business sale or that she had access to confidential information. II. Discussion The Court has inherent power to disqualify an attorney whose representation presents a conflict of interest.9 In doing so, the Court uses the Ohio Rules of Professional Conduct as a benchmark.10 4 5 6 7 Docs. 13-1 at 3; 15-1 at 3-4. Doc. 13-1 at 2. Id. Id. 8 Doc. 15-1 at 3. Her affidavit includes billing records showing that she did not bill defendants after September 2012. Id. at 6. 9 Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App. 3d 255, 262, 611 N.E.2d 873, 877 (Ohio Ct. App. 1992) ( The trial court has the authority and the duty to prevent a violation of the Code of Professional Respons“b“l“ty “nvolv“ng confl“cts of “nterest. ). 10 See In re Snyder, 472 U.S. 634, 645 n. 6 (1985) (explaining that federal courts may require attorneys to conform to state ethical rules because state bar admission is a precondition of federal bar admission). -2- Case No. 1:18-cv-2104 Gwin, J. Defendants argue that Zink-Pearson’s cont“nued representat“on violates Ohio Rule of Professional Conduct 1.9(a), which provides that [u]nless the former client gives informed consent, confirmed in writing, a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former cl“ent. 11 Pla“nt“ff’s “nterests are pla“nly averse to Defendants’ and Defendants have not given written informed consent.12 Thus, the only issue is whether this lawsuit “s substant“ally related to the matters in which Zink-Pearson and her firm represented Defendants.13 There is no dispute that Zink-Pearson advised Defendants regarding a potential sale of the business in 2012 and suggested a potential buyer. The sale of Defendants’ business is the same transaction at issue in this lawsuit, albeit to a different purchaser.14 Thus, her representation violates Rule 1.9. Courts disqualifying attorneys for conflict-of-interest violations have also required a showing that the attorney acquired confidential information from the party seeking disqualification.15 Because these matters were substantially related, the Court presumes 11 Ohio R. Prof. Cond. 1.9(a) (emphasis in original). Zink-Pearson states that her law partner generally handled Defendants’ sale-related business. However, under Oh“o R. Prof. Cond. 1.10(a) her f“rm’s confl“ct “s “mputed to Z“nk-Pearson. 13 See Oh“o R. Prof. Cond. 1.0(n) (def“n“ng substant“ally related matter as one that “nvolves the same transaction or legal dispute or one in which there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation of a client would materially advance the pos“t“on of another cl“ent “n a subsequent matter ). 14 See Oh“o R. Prof. Cond. 1.9(a), Off“c“al Comment 2 ( When a lawyer has been d“rectly “nvolved “n a specific transaction, subsequent representation of other clients with materially adverse interests in that transact“on clearly “s proh“b“ted. ). 15 Dana Corp. v. Blue Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882, 889 (6th Cir. 1990). 12 -3- Case No. 1:18-cv-2104 Gwin, J. that Defendants disclosed confidential information to Zink-Pearson in the course of her representation.16 Although Zink-Pearson asserts that her sale-related advice was limited to her suggesting a potential buyer, she was admittedly present at a meeting at which a potential sale was d“scussed and any doubts as to the existence of an asserted conflict of interest must be resolved in favor of disqualification in order to dispel any appearance of “mpropr“ety. 17 Further, the Court finds that Zink-Pearson’s d“squal“f“cat“on would not work any hardship to Plaintiff at this early stage of litigation. Because the Court disqualifies Zink-Pearson on these grounds, the Court need not consider whether her representation would also violate Ohio Professional Rules 3.7 and 1.7. III. Conclusion For the reasons stated above, the Court GRANTS Defendants’ mot“on to d“squal“fy. The Court orders Zink-Pearson to withdraw from representing Plaintiff. IT IS SO ORDERED. s/ Dated: February 8, 2019 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE See Douglass v. Priddy, 11th Dist. Geauga No. 2013–G–3172, 2014-Ohio-2881, ¶ 27 ( [A] court can properly assume that confidences were disclosed to the attorney on the subject matter of the representation during the course of the former representation, so long as the former representation was substantially related ). This assumption is particularly warranted here given the small size of Zink-Pearson’s f“rm. 17 Kala v. Aluminum Smelting & Ref. Co., 688 N.E.2d 258, 266 (1998). 16 -4-
]]>
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.
