United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTION TO DISQUALIFY COUNSEL
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff John Brannan's
(“Brannan”) motion to disqualify the Defendants
counsellors based on non-waivable conflicts of interest.
Specifically, Brannan ask the court to disqualify
attorney's Thomas Little (“Little”) of Power
Little, Little & Little, as well as, James Stephenson
(“Stephenson”) and Rosemary Borek
(“Borek”) of Stephenson Morow & Semler, from
representing more than a single defendant within this matter.
(Filing No. 22.) For the following reasons, the
Courts DENIES the Motion to Disqualify.
following facts are taken directly from Brannan's
Complaint and the parties' briefs. On March 14, 2011,
Tharp, a Clinton County Board of Health Officer, hired
Brannan as the Administrator of the Board of Health.
(Filing No. 17 at 2.) In 2013, the Clinton County
Board of Commissioners (“the Commissioners”)
sought to transfer the County's Public Health Nurse to
Parkview Home. (Filing No. 1 at 4.) Brannan opposed
the Commissioners' plan, asserting that the State
Department of Health's regulations prohibit the transfer.
Id. Following Brannan's opposition to the
Commissioners' plan, the Commissioners attempted to
induce the Board of Commissioners to remove Brannan as
Administrator. Id. The Board of Commissioners,
however, declined to remove Brannan. Id. The
Commissioners then attempted to persuade Tharp to remove
Brannan, even without the Board of Commissioners'
November 18, 2015, Dr. Stephen Tharp (“Tharp”)
informed Brannan that the Commissioners instructed his
removal and, effective immediately, Rodney Wann
(“Wann”) would replace Brannan as Administrator.
Id. at 4-5. Tharp demoted Brannan to the position of
Food Inspector. Id. at 5. As a result of the
demotion, Brannan suffered major anxiety attacks causing his
doctor to certify him for intermittent leave under the Family
and Medical Leave Act (“FMLA”). Id.
Brannan presented a signed certification to Tharp, and both
Tharp and Wann informed Brannan that he must provide them
with a schedule of when he intended to take his intermittent
FMLA leave. Id.
thereafter, while Brannan visited his doctor, he saw
Commissioner Scott Shoemaker (“Shoemaker”) enter
the doctor's office in full police attire. Id.
Brannan suspected that Shoemaker entered the doctor's
office to observe him. Id. After witnessing
Shoemaker in the doctor's office, Brannan obtained
counsel and, on February 17, 2016, sent a letter to the
Commissioners, as well as Tharp and Wann, advising them that
Shoemaker's actions amounted to an interference with his
exercise of his FMLA rights. Id. Brannan also
explained that requiring him to schedule his intermittent
FMLA leave constituted interference. Id. at 5-6. On
March 4, 2016, Tharp terminated Brannan for insubordination
and informed Brannan that his termination was pursuant to the
instructions of the Commissioners. Id. at 6.
March 16, 2016, Brannan filed a Complaint in this Court
asserting deprivation of rights against the Commissioners and
Tharp, as well as, violation of the FMLA against all
Defendants. (Filing No. 1.) Attorneys Little,
Stephenson, and Borek entered appearances to collectively
represent Defendants Shoemaker, Bert Weaver, and Cory Boyles
(collectively, “Commissioners”), as well as,
Clinton County Board of Commissioners (“Board of
Commissioners”), Clinton County Board of Health
(“Board of Health”), Tharp, and Rodney Wann.
(Filing No. 5; Filing No. 8; Filing No.
9.) Brannan contends that a conflict of interest will
likely arise because the attorneys' representation of one
of the Defendants will materially limit the attorneys'
duty to the other Defendants. On August 20, 2016, Brannan
moved this Court to disqualify attorneys Stephenson, Little,
and Borek, asserting that there is a non-waivable conflict of
interest, pursuant to Indiana Rule of Professional Conduct
1.7. (Filing No. 22.) In response, the Defendants
argue that Brannan does not have standing and a conflict of
interest does not exist. (Filing No. 24.)
of an attorney is a ‘drastic measure which courts
should hesitate to impose except when absolutely
necessary.'” Mills v. Hausmann-McNally,
S.C., 992 F.Supp.2d 885, 890 (S.D. Ind. 2014) (quoting
Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir.
1993)). “The standards for disqualification of an
attorney derive from two sources: Indiana's Rules of
Professional Conduct and federal common law.”
Leathermon v. Grandview Mem. Gardens, Inc., No.
4:07-cv-137-SEB-WGH, 2010 WL1381893, at * 8 (S.D. Ind. March
to Indiana Rule of Professional Conduct 1.7, a lawyer shall
not represent a client if “the representation of one
client will be directly adverse to another client.”
Ind. R. Prof. Conduct 1.7(a)(1). A lawyer is also prohibited
from representing a client where “there is a
significant risk that the representation of one or more
clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.”
Id. at 1.7(a)(2). However, even where a conflict
exists, a lawyer may represent a client if:
(b)(1) the lawyer reasonably believes that the lawyer will be
able to provide competent and diligent representation to each
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a
claim by one client against another client represented by the
lawyer in the same litigation or other ...