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Brannan v. Clinton County Board of Commissioners

United States District Court, S.D. Indiana, Indianapolis Division

October 27, 2016

JOHN BRANNAN, Plaintiff,
v.
CLINTON COUNTY BOARD OF COMMISSIONERS, CLINTON COUNTY BOARD OF HEALTH, SCOTT SHOEMAKER, individually and in his official capacity as Commissioner, CORY BOYLES, individually and in his official capacity as Commissioner, BERT WEAVER, individually and in his official capacity as Commissioner, DR. STEPHEN THARP, individually and in his official capacity as Commissioner, and RODNEY WANN, Defendants.

          ENTRY ON MOTION TO DISQUALIFY COUNSEL

          TANYA WALTON PRATT, JUDGE

         This 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.

         I. BACKGROUND

         The 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' approval. Id.

         On 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.

         Shortly 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.

         On 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.)

         II. LEGAL STANDARD

         “Disqualification 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 31, 2010).

         According 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 affected client;
(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 ...

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