United States District Court, D. South Carolina, Charleston Division
ASHLEY REEVES, as Personal Representative of the Estate of Carl Albert Reeves, Plaintiff,
TOWN OF COTTAGEVILLE, et al., Defendants.
DAVID C. NORTON, District Judge.
This matter is before the court on defendants' motion to disqualify plaintiff's counsel. The court denied the motion at a hearing held on August 20, 2014. What follows is a further explanation of the court's ruling.
On August 28, 2012, plaintiff Ashley Reeves ("Reeves") filed this action in the Court of Common Pleas for the Fourteenth Judicial Circuit of South Carolina. Reeves brings her claims against the Town of Cottageville ("Cottageville" or "the town"), the Town of Cottageville Police Department ("the police department"), and Cottageville police officer Randall Price ("Price") in her capacity as personal representative of the estate of Carl Albert Reeves ("Bert"). Reeves's complaint alleges that Price unlawfully shot and killed Bert in retaliation for Bert's complaints about Price's aggressive policing tactics. Compl. ¶¶ 12-15. The complaint brings the following claims: (1) negligence against all defendants, (2) negligent hiring and supervision against Cottageville and its police department, (3) battery against all defendants, (4) assault against all defendants, (5) civil rights violation pursuant to 42 U.S.C. § 1983 against Price, (6) municipal liability for civil rights violation pursuant to 42 U.S.C. § 1983 against town and police department, (7) survival action against all defendants, and (8) wrongful death against all defendants.
On July 29, 2014, six days before the scheduled pretrial conference and thirteen days before trial was set to begin, defendants filed the pending motion to disqualify counsel. Upon the filing of the motion, the court immediately cancelled the pretrial hearing and jury trial. Reeves opposed the motion on August 13, 2014.
On August 5, 2014, the court directed all defense counsel to submit affidavits describing when, where, and how they first learned that plaintiff's attorney W. Mullins McLeod, Jr. formerly represented Cottageville as its town attorney. On August 18, 2014, defense counsel timely filed their affidavits. Defendants also filed a reply in support of their motion on August 18, 2014. The court had the benefit of the parties' oral argument at a hearing held on August 20, 2014.
"A motion to disqualify counsel is a matter subject to the court's general supervisory authority to ensure fairness to all who bring their case to the judiciary for resolution." Clinton Mills, Inc. v. Alexander & Alexander, Inc. , 687 F.Supp. 226, 228 (D.S.C. 1988). The South Carolina Code of Professional Responsibility sets forth the ethical standards for attorneys who practice in this district. See Local Civil Rule 83.I.08 DSC, RDE Rule IV(B) ("The Code of Professional Responsibility adopted by this Court is the South Carolina Rules of Professional Conduct... adopted by the Supreme Court of the State of South Carolina...."). "Violation of any provision of the South Carolina Rules of Professional Conduct" qualifies as sanctionable misconduct. Id . Rule V(H)(2); see also Clinton Mills , 687 F.Supp. 226, 228 (D.S.C. 1988) ("It is the court's responsibility to use its disqualification power to see that those who practice before the court adhere to the South Carolina Code [of Professional Responsibility]."). "The court has a duty to maintain the highest ethical standards of professional conduct to insure and preserve trust in the integrity of the bar." Latham v. Matthews, Docket No. 6:08-cv-02995, 2011 WL 52609, at *2 (D.S.C. Jan. 6, 2011). Disqualification is, however, "a drastic remedy, and the moving party has a high standard of proof to demonstrate that disqualification is required." Id.
Defendants contend that Reeves' counsel should be disqualified because Mr. McLeod and his former law firm represented Cottageville between 2004 and 2007. Defendants argue that Mr. McLeod's former position as Cottageville's town attorney, when combined with his current representation of Reeves, violates Rules 1.6(a) and 1.9 of the South Carolina Rules of Professional Conduct ("the Professional Rules").
A. Defendants' Motion Is Untimely.
As a preliminary matter, Reeves contends that defendants' motion is untimely and so has been waived. She argues that defendants' motion is simply a tactical maneuver to delay trial and run up her legal costs.
"Courts have held that a party's failure to timely raise a motion to disqualify may result in a waiver." Buckley v. Airshield Corp. , 908 F.Supp. 299, 307 (D. Md. 1995); see also Sorenson v. First Wis. Nat'l Bank of Milwaukee, N.A. , 931 F.2d 19 (8th Cir. 1991); Cox v. Am. Cast Iron Pipe Co. , 847 F.2d 725, 729-30 (11th Cir. 1988); In re Yarn Processing Patent Validity Litig. , 530 F.2d 83 (5th Cir. 1976). However, delay alone is not a dispositive factor. Buckley , 908 F.Supp. at 307. Instead, courts consider factors such as "when the movant learned of the conflict; whether the movant was represented by counsel during the delay; why the delay occurred, and in particular whether the motion was delayed for tactical reasons; and whether disqualification would result in prejudice to the nonmoving party." Id . (citing Emp'rs Ins. of Wausau v. Albert D. Seeno Constr. Co. , 692 F.Supp. 1150, 1165 (N.D. Cal. 1988)). Filing a motion to disqualify counsel just a few weeks short of trial has often been interpreted as an impermissible attempt to gain a tactical advantage. Cent. Milk Producers Co-op. v. Sentry Food Stores, Inc. , 573 F.2d 988, 992 (8th Cir. 1978) ("This court will not allow a litigant to delay filing a motion to disqualify in order to use the motion later as a tool to deprive his opponent of counsel of his choice after substantial preparation of a case has been completed."); Alexander v. Primerica Holdings, Inc. , 822 F.Supp. 1099, 1119 (D.N.J. 1993) (motion to disqualify counsel denied when filed three years after litigation commenced and four months prior to trial, and information was known from the outset); Commonwealth Ins. Co. v. Graphix Hot Line, Inc. , 808 F.Supp. 1200, 1209 (E.D. Pa. 1992) (motion to disqualify counsel denied when filed two years after the action commenced and three weeks prior to trial).
The legal invoices that defendants submitted demonstrate that Cottageville itself has known of Mr. McLeod's prior representation since before this lawsuit began. See Defs.' Mot. Ex. 4. Cottageville's attorney Vinton D. Lide first learned of Mr. McLeod's prior representation "during the business week beginning Monday, June 16, 2014, " when defense counsel's private investigator told Mr. Lide that he had found a newspaper article that described Mr. McLeod as the town's attorney. Lide Aff. ¶ 3. Price's attorneys Lake Summers, Katherine Phillips, and Charles Thompson first learned of Mr. McLeod's prior representation on Monday, June 23, 2014. Phillips Aff. ¶ 6; Summers Aff. ¶ 5; Thompson Aff. ¶ 4. On June 23, 2014, Mr. Lide and Mr. Summers both received a document "which showed payments made from the Town of Cottageville to Mr. McLeod and/or his firm ...