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Hackett v. City of South Bend

United States District Court, N.D. Indiana, South Bend Division

July 5, 2018

DAVIN HACKETT, Plaintiff
v.
CITY OF SOUTH BEND, et al., Defendants

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge

         The defendants have moved to disqualify Daniel Pfeifer, one of plaintiff's two attorneys, and his law firm, Pfeifer Morgan & Stesiak, contending that Mr. Pfeifer's prior representation of two South Bend police officers who aren't parties to this litigation in a related matter creates a conflict of interest under Rule 1.9 of the Indiana Rules of Professional Conduct and/or a substantial risk that confidential information acquired from them will be used to their disadvantage in this case, in violation of Ind. R. Prof. Cond. 1.6 and 1.9 and federal common law, which prohibits an attorney from representing “an adversary of his former client, if the subject matter of the two representations is ‘substantially related[.]'” Analytica Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983). The court denies the motion.

         I. Standard

         Disqualification of an attorney is a “‘drastic measure” and imposed only when “absolutely necessary.” Watkins v. Trans Union, LLC, 869 F.3d 514, 519 (7th Cir. 2017) (quoting Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993) (quoting Schiessle v. Stephens, 717 F.2d 417, 419-20 (7th Cir. 1983)). Whether an attorney should be disqualified is determined by the facts and circumstances surrounding the current matter and the prior representation given to the former client. Watkins v. Trans Union, LLC, 869 F.3d 514, 519 (7th Cir. 2017).

         The court employs a three-step analysis in determining whether disqualification is an appropriate remedy. Schiessle v. Stephens, 717 F.2d 417 (7th Cir. 1983). It must first “determine whether a substantial relationship exists between the subject matter of the prior and present representations.” Id. If a substantial relationship exists, the court can “presume that the attorney received confidential information during his prior representation, ” without proof that the attorney received such information. Id. at 255-256; see also Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976)). The presumption can be rebutted if the attorney can “clearly and effectively show that he had no knowledge of the confidences and secrets of the client, ” Freeman v. Chicago Musical Instr. Co., 689 F.2d 715, 723 (7th Cir. 1982); see also Schiessle v. Stephens, 717 F.2d 417 (7th Cir. 1983), or that he didn't share any those confidences with his current client or co-counsel. See Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 186 (7th Cir. 1979).

         II. Discussion

         A. Background

         On July 23, 2015, Sergeants O'Neill and Hiipakka received an email from Chief of Police Scott Ruszkowski telling them that Davin Hackett had accepted a position on the bomb squad following his return from military deployment and asking one of them to relinquish his position on the squad to make room for him, pursuant to a written agreement they'd signed in May of 2015. See Exh. 1 to the Affidavit of Ryan O'Neill [Doc. No.22-1]. Sgts. O'Neill and Hiipakka considered possible legal action against Mr. Hackett and the City, and contacted Mr. Pfeifer for advice. Officer O'Neill and/or Officer Hiipakka met with Mr. Pfeifer once for about fifteen minutes (Mr. Pfeifer attests that he only met with O'Neill), and told him that the Department had asked that one of them resign from the bomb squad to make room for Mr. Hackett, that they were on the bomb squad before Mr. Hackett, and that they thought it was unfair. Both officers attest that Mr. Pfeifer gave them advice and “helped to ghost-write an email message that Sgt. O'Neill later sent to various senior police officers and the City's Human Resources Manager” advising that: “neither one of us are going to relinquish our position. If you want either of us to be removed you will need to take the necessary steps and we will see what comes of your actions.” [Doc. No. 22-1 and 22-2]. Neither Sgt. O'Neill or Sgt. Hiipakka agreed that Mr. Pfeifer would represent Officer Hackett in this litigation, and both expressed concern that information they shared with Mr. Pfeifer and thought was confidential could be used to benefit Mr. Hackett. [Doc. Nos. 22-1 and 22-2].

         In response to the motion to disqualify, Mr. Pfeifer submitted an affidavit in which he attests that:

• During the meeting, he was provided with “much of the same information” that Sgts. O'Neill and Hiipakka provided in their affidavits, “specifically that O'Neill and Hiipakka were on the Bomb Squad before Hackett was placed on the squad” and that the Police Department had instructed one of them to resign from the squad to make room for Hackett.
• He “did not learn about any of officers O'Neill or Hiipakka's qualifications for the position”, and “there was never any conversation, discussion, or mention of O'Neill or Hiipakka ... making any sort of legal claim against Hackett.”
• Based on the information provided, Mr. Pfeifer didn't think they had a claim against the City or the Police Department, but “suggested that they send an email letting their command know that they both wished to remain part of the Bomb Squad” and told them they could copy him on the email, if they wished.
• Mr. Pfeifer didn't write or “ghost write” the email that Sgts. O'Neill and Hiipakka sent to Chief Ruszkoski and others at the Department on July 25, 2015; “did not see or review the email before it was sent”; and “had no further communications ...

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