Glover v. CoreCivic of Tennessee, LLC

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 MARSHALL RAY GLOVER, Case No.: 18cv2330 JM(NLS) 11 Plaintiff, ORDER ON PLAINTIFF’S MOTION 12 v. TO DISQUALIFY COUNSEL 13 CORECIVIC OF TENNESSEE, LLC, 14 Defendant. [15] 16 Presently before the court is Plaintiff’s Motion to Seek Disqualification of Opposing 17 Counsel (Doc. No. 41). A hearing on the motion was held on February3, 2020. Counsel 18 for Defendant Mr. Daniel Struck and Mr. Matthew Mahoney, along with Ms. Bessy Glaske 19 of CoreCivic, appeared. Neither Mr. David Kaufman, Mr. Marshall Glover nor Ms. 20 Elizabeth Bumer appeared, despite being ordered to do so.1 (See Doc. No. 53.) For the 21 reasons set forth below, the motion is denied. 22 I. Background 23 Plaintiff filed a negligence claim in state court that was removed to this court. 24 Plaintiff’s alleged injury occurred at Ocean View, a minimum-security re-entry facility in 25 San Diego, which is owned and operated by Defendant, CoreCivic, Inc. At the time of the [27] 1 The courtroom deputy tried unsuccessfully to reach both Mr. Kaufman (three times) and Ms. Bumer [28] 1 alleged incident, Plaintiff was a prisoner on work release/furlough. It is alleged that on 2 June 14, 2016, while he was descending an exterior stairway carrying two bags of trash, 3 Plaintiff was struck by a door that was opened out onto a landing, causing him to trip and 4 fall down the stairs. (Doc. No. 1 at 12.) Plaintiff was found at the bottom of the stairs 5 unconscious, soaked in urine and feces. (Id.) He alleges that he suffered “a concussion, 6 and paralysis to the lower body, and permanent injury to his spine.” (Id. at 13.) 7 The defense firm of Struck Love Bojanoski & Acedo, PLC in Chandler, Arizona 8 retained Mr. Mahoney as local counsel. On December 11, 2018, Mr. Mahoney duly filed 9 a notice of appearance with the court. (Doc. No. 11.) Mr. Daniel Struck and Ms. Dana 10 Keene (nee Giallonardo) of the Struck Love law firm proceeded to file requests to appear 11 pro hac vice which were approved by the court. (Doc. Nos. 12 -14.) Before forming his 12 own firm, Mr. Mahoney worked at Seltzer Caplan McMahon Vitek (“SCMV”) from 200313 2014, along with Mr. Charles “Chuck” Goldberg. 14 On June 14, 2019, Ms. Bumer, Plaintiff’s former co-counsel, sent an email to Ms. 15 Keene, Mr. Struck, Mr. Mahoney and Mr. Kaufman, co-counsel for Plaintiff, informing all 16 attorneys of the possible conflict. (Doc. No. 50-2 at 8; Doc. No. 50-3 at 10.) 17 On the same day, Mr. Mahoney responded, via email, that he did occasionally work 18 with Mr. Goldberg, and that if Mr. Glover was one of Chuck’s clients, he could represent 19 that “such prior representation would not, in any way, have involved the exchange of 20 confidential information material to the case in hand (pursuant to California Rule of 21 Professional Conduct 3-310(E)). (Doc. No. 50-2 at 10; Doc. No. 50-3 at 10.) Mr. Mahoney 22 also informed everyone that he had contacted SCMV to see if Mr. Glover was a client but 23 had been told he was not showing up in the database as a client of the firm. Mr. Mahoney 24 went on, “I have a vague recollection of representing a client with a variation of Mr. 25 Glover’s name. Liz, would you please ask your client if he may have been using a different 26 name at the time that he was a client at SCMV. And also, it would be helpful if he could 27 recall the year that he came into contact with me, and the nature of the matter.” (Id.) [28] 1 Mr. Struck also responded on June 14, 2019, stating: “it does not appear that, even 2 if it occurred, Matt obtained any information related to this incident, and that the 3 “conversation” took place before the fall which gives rise to this litigation. I’m not seeing 4 anything giving rise to a conflict of interest, but please let me know, and cite the ethical 5 rule, that might persuade us otherwise.” (Doc. No. 50-2 at 11; Doc. No. 50-3 at 11.) 6 After initially responding on June 14, 2019, that Mr. Glover didn’t recall if he used 7 another name and didn’t recall the year, it is unclear if Ms. Bumer sent any further 8 information. (Doc. No. 50-2 at 14; Doc. No. 50-3 at 14.). Ms. Bumer attests that she 9 conveyed to defense counsel that Mr. Glover may have used the aliases Christopher 10 Kissinger” or “Matthew Glover”. (Doc. No. 41-2, Bumer Decl., at ¶ 16.) Mr. Mahoney 11 maintains he heard nothing more from Ms. Bumer. (Doc. No. 50-3, Mahoney Decl., at ¶ 12 17.) 13 On July 10, 2019, Mr. Struck and Ms. Keene sent a letter to Plaintiff’s counsel stating 14 that the Geo Group had informed them that Mr. Glover had been incarcerated at various 15 GEO facilities under the name Marshall Ray Glover and Christopher Ray Kisslinger. The 16 letter also states that various sets of records were provided under both names in response 17 to Defendant’s Subpoena Duces Tecum. Defendant reviewed the records and discovered 18 that Mr. Glover had used 3 other aliases including Gilbert Tremble, Christopher Ray 19 Glover and Jason Caff and had also used a different social security number. (Doc. No. 4120 5 at 3-5.) 21 On July 15, 2019, Mr. Kaufman emailed all the attorneys on the case, the pertinent 22 part of which states: 23 As far as the Plaintiff’s various aliases, Mr. Glover is concerned that CoreCivic’s decision to retain local counsel that had and in some respects [24] continues to have had an attorney client relationship with Mr. Glover does 25 violence to the confidentiality and evidentiary privilege and protections accorded to a client’s relationship with and communications with prior [26] counsel. Plaintiff cannot but feel that the present “discovery” of Mr. Glover’s 27 aliases is anything but the product of Mr. Mahoney violating the attorney client privilege and disclosing information prejudicial to a former client that [28] 1 is the product of confidential information obtained from Mr. Glover. This is very concerning to Mr. Glover and similarly deserves to be put before the [2] Court.” 3 (Doc. No. 41-5 at 8.) 4 By August 26, 2019, after the potential conflict was discovered, Defendant had 5 learned that Plaintiff has utilized at least five separate aliases including Christopher Ray 6 Kisslinger, Gilbert Tremble, Jason Caff, Christopher Ray Glover, and Marshall Raien 7 Glover and one other social security number. (See e.g. Doc. No 41-5 at 28) 8 On January 2, 2020, Plaintiff filed the motion to disqualify Mr. Mahoney from the 9 litigation, inferring that the discovery of the aliases came about because of some 10 questionable conduct on the part of defense counsel and claiming that the defense counsel 11 is exploiting the confidential information Mr. Mahoney possesses. (Doc. No. 41.) Further, 12 Plaintiff wished to have the conflict associated with Mr. Mahoney imputed to Ms. Keene 13 and Mr. Struck. (Doc. No. 41-1 at 31.) 14 Defendant opposes the motion and, in support, has submitted a declaration from Mr. 15 Mahoney that contradicts almost all of Plaintiff’s and his counsel’s assertions. (Mahoney 16 Decl.) Mr. Mahoney declares that as local counsel he has no involvement in substantive 17 discovery, motions practice, or communications with Plaintiff’s counsel and that he has 18 not conveyed any information about Plaintiff to either Mr. Struck or Ms. Keene. (Mahoney 19 Decl. at ¶¶ 22, 23.) 20 II. Legal Standard 21 Motions to disqualify are governed by state law. In this District the California Rules 22 of Professional Responsibility apply. See CivLR 83.4.b. (every attorney before this district 23 court must “comply with the standards of professional conduct required of members of the 24 State Bar of California.”) 25 In instances of successive representation, when an attorney undertakes to represent 26 a client adverse to a former client, the focus is on confidentiality. Western Sugar Coop. v. 27 Archer-Daniels-Midlands Co., 98 F. Supp. 3d 1074, 1080 (C.D. Cal. 2015). The new rule 28 of Professional Responsibility 1.9 governs duties to former clients and provides that: 1 (a) a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which [2] that person’s interests are materially adverse to the interests of the former 3 client unless the former client gives informed written consent. [4] Disqualification is appropriate if “the targeted attorney (1) has actual knowledge of [5] material confidential information or (2) is presumed to have acquired confidential [6] information because of the relationship between the prior representation and the current [7] representation.” Faughn v. Perez, 51 Cal. Rptr. 3d 692 , 699–700 (Cal. Ct. App. 2006).2 [8] The former client may disqualify the attorney by showing a “substantial [9] relationship” between the subjects of the prior and current representations. Flatt v. Super. [10] Ct., 9 Cal. 4th 275, 283 (1994). This protects the enduring duty to preserve client [11] confidences that survives the termination of the attorney’s representation. When a [12] substantial relationship between the representations is established, the attorney is [13] automatically disqualified from representing the second client.” Western Sugar, 98 F. 14 Supp. 3d at 1081 (internal citations omitted). To establish a substantial relationship the [15] party moving for disqualification must show that “information material to the evaluation, [16] prosecution, settlement or accomplishment of the former representation given its factual [17] and legal issues is material to the evaluation, prosecution, settlement or accomplishment of [18] the current representation given its factual and legal issues.” Id. (citing Khani v. Ford [19] Motor. Co., 215 Cal. App. 4th 916, 921 (2013)). The substantial relationship test balances [20] “a client’s right to chosen counsel, an attorney’s interest in representing a client, the [21] financial burden on a client to replace disqualified counsel, and the possibility that tactical [24] 2 The old version of the rule, California Rule of Professional Responsibility 3-310(E) 25 governing successive representation provided that a member shall not, without the informed written consent of the client or former client, accept employment adverse to the [26] client or former client where, by reason of the representation of the client or former client, 27 the member has obtained confidential information material to the employment. Mr. Mahoney filed his notice of appearance in this case on December 11, 2018, after the new [28] 1 abuse underlies the disqualification motion.” People v. SpeeDee Oil Change Sys., Inc., 980 2 P.2d 371 , 377–78 (Cal. 1999). 3 “The law is now well-established that, once a showing has been made that someone 4 at the adverse party’s firm possesses confidential attorney-client information materially 5 related to the proceedings before the court, a rebuttable presumption arises that the 6 information has been used or disclosed in the current employment. O’Gara Coach Co., 7 LLC v. Ra, 30 Cal. App. 5th 115, 1131 (Jan 7, 2019) (citing In re Complex Asbestos Litig., [8] 232 Cal. App. 3d 572, 596 (1991). “The presumption is a rule by necessity because the 9 party seeking disqualification will be at a loss to prove what is known by the adversary’s 10 attorneys and legal staff.” (Ibid.) 11 The right to disqualify counsel is a discretionary exercise of the trial court’s inherent 12 powers. Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 264 F. Supp. 2d 13 914, 918 (N.D. Cal. 2003). Because of the potential for abuse, disqualification motions 14 should be subjected to particularly strict judicial scrutiny. Optyl Eyewear Fashion Int’l 15 Corp. v. Style Cos., Ltd., 760 F.2d 1045 , 1049 (9th Cir. 1985). 16 III. Discussion 17 Ms. Bumer and Mr. Glover have both submitted declarations in support of Plaintiff’s 18 motion that contain relatively similar recitations of the discovery of Mr. Mahoney’s 19 existence and the potential conflict. (Bumer Decl.; Doc. No. 41-2, Glover Decl.) They are 20 as follows: 21 In 2003, Mr. Goldberg purportedly sent Mr. Mahoney to meet with Mr. Glover who 22 he was representing on a criminal matter. (Glover Decl. at ¶ 6; see also Bumer Decl. at ¶¶ 23 7, 8.) Mr. Glover maintains that he met with Mr. Mahoney on at least two occasions and 24 shared with him his “life story”. (Glover Decl. at ¶ 7.) Ms. Bumer recites this as Mr. 25 Glover recalling telling Mr. Mahoney information regarding his use of aliases, substance 26 abuse history and prior criminal history, including that related to social security numbers. 27 (Bumer Decl. at ¶¶ 9, 14.) Mr. Glover identified Mr. Mahoney in a photo pulled up on 28 Google by Ms. Bumer, Mr. Glover’s original attorney in this action. (Glover Decl. at ¶ 5; 1 Bumer Decl. at ¶ 10.) Mr. Glover also asserts that he has intermittently sought legal advice 2 from Mr. Mahoney, including in 2007-08 when he was arrested on federal charges related 3 to counterfeiting. (Glover Decl., at ¶ 8; see also Bumer Decl. at ¶ 13; Doc. No. 41-1 at 10.) 4 Also attached to Plaintiff’s motion is a declaration from Plaintiff’s attorney, David 5 A Kaufman. (Doc. No. 41-4, Kaufman Decl.) Mr. Kaufman admits that he was not directly 6 involved in the discussions with opposing counsel regarding the conflict issue when it first 7 arose, but he takes the position that defense counsels’ behavior was “quite devious and by 8 design to go on the offensive and by hook or by crook attack the weak underbelly of 9 Plaintiff’s character, owing to his lengthy history of incarceration and substance abuse.” 10 (Id. at ¶ 5.) 11 In his declaration Mr. Mahoney does not dispute that he occasionally helped Mr. 12 Goldberg with his criminal matters. However he only has a vague recollection of the name 13 “Marshall” and that he may have “assisted Mr. Goldberg on a criminal matter involving an 14 individual with a similar name to Plaintiff’s. However, I could not recall them and cannot 15 recall now what the nature of that representation was or what type of interaction I had with 16 Mr. Glover.” (Mahoney Decl. at ¶ 8.) Further, Mr. Mahoney declares that at his request 17 SCMV have performed a client search for Marshall Glover and “the firm has no record of 18 ever having a client by that name.” (Id. at ¶ 9.) Mr. Mahoney also states that he does not 19 possess any confidential information about Plaintiff, he has no recollection, knowledge or 20 documents related to Plaintiff’s early life, incarceration history, criminal history, drug 21 history, or his use of different names/aliases or social security numbers, and that he cannot 22 recall, if he did perform any tasks on behalf of Plaintiff, what they were. (Id. at ¶¶ 11, 12.) 23 Mr. Mahoney has subsequently confirmed that SCMV did not represent Mr. Glover under 24 either of two aliases he may have used: Christopher Kisslinger or Matthew Glover. (Id. at 25 ¶ 20.) Mr. Mahoney has no recollection of having clients with these names. (Id. at ¶ 19.) 26 Mr. Mahoney also declares that he has no specific recollection of the Plaintiff contacting 27 him in 2007-08. (Id. at ¶ 21.) [28] 1 At the hearing, Mr. Mahoney provided additional information to the court. He very 2 credibly stated that upon further reflection he did in fact recall speaking with a Marshall 3 Glover approximately eighteen years ago, but that: (1) he did not recall any details 4 regarding the extent of the conversation; (2) he has absolutely no recollection of any of 5 the information Mr. Glover provided to him, including anything related to addiction history 6 or aliases; and (3) he doesn’t recall what matter the conversation was related to or how that 7 matter was disposed of. Mr. Mahoney maintained that any contact with Mr. Glover would 8 have been at the behest of Mr. Goldberg because Mr. Mahoney’s own practice was focused 9 in the civil litigation arena and he did not recall ever representing any client on a 10 counterfeiting or fraud case. Mr. Mahoney did not remember having any subsequent 11 contact with Mr. Glover. 12 In addition to Mr. Mahoney’s declaration, the declaration from defense counsel, Mr. 13 Daniel Struck, states that all the information related to Plaintiff’s prior aliases, 14 incarceration history, criminal history, medical history, and drug history was obtained 15 through GEO Group Inc., a private prison company’s records, and through Plaintiff, and 16 that Mr. Mahoney never disclosed any information related to Plaintiff. (See Doc. No. 50; 17 Doc. No. 50-2, Struck Decl. at ¶¶ 18, 19.) 18 While Mr. Mahoney’s statements at the hearing add credence to the declaration of 19 Mr. Glover that a meeting took place, they do not necessitate the conclusion that he be 20 disqualified from the case. Plaintiff has not actually established that an attorney-client 21 relationship between himself and Mr. Glover, ever existed. See Koo v. Rubio’s Rests., 109 22 Cal. App. 4th 719 422 (2003). (The burden is on the party seeking disqualification to 23 establish the attorney-client relationship). At this point in time, all that is known is that 24 Mr. Glover may have been represented by Mr. Goldberg, not Mr. Mahoney, and that a 25 conversation between Mr. Mahoney and Mr. Glover occurred over 18 years ago. See Fox 26 v. Pollack, 181 Cal.App.3d 954, 959 (1986) (individuals cannot unilaterally create an 27 attorney-client relationship without the agreement of the attorney). Plaintiff has not 28 contacted Mr. Goldberg and from the papers it appears that Plaintiff may be suggesting 1 that it is Defendant’s burden to check the county jail records for a record of the visits Mr. 2 Mahoney allegedly made to him while he was being held under the name of Christopher 3 Kisslinger. (See Glover Decl. at ¶ 9.) But, it is not Defendant’s burden to prove the 4 existence of the relationship, it is Plaintiff’s. See Koo, 109 Cal. App. 4th at 422. Mr. 5 Mahoney has gone so far as to contact his prior firm and it has no record of Plaintiff as a 6 client under either the names Marshall Glover, Christopher Kisslinger or Matthew Glover. 7 (Mahoney Decl. at ¶¶ 9, 20.) In sum, Plaintiff has not met his burden of demonstrating the 8 existence of an attorney-client relationship in either 2003 or 2007-08. 9 Similarly, Plaintiff has not met his burden of identifying what, if any, confidential 10 information was disclosed to Mr. Mahoney. Plaintiff’s declaration simply sets forth a 11 general statement that he told Mr. Mahoney “his life story” and concludes that “I’m 12 concerned that Mr. Mahoney, having served as my attorney would know things about me 13 from things that I told him. I told him tings [sic] in confidence that I thought would be 14 protected.” (Glover Decl. at ¶ 7, 10.) While a lawyer must “preserve the secrets[ ] of his 15 or her client,” (Cal. R. Prof. Conduct 1.6(a)), such a generalized statement on the part of 16 Mr. Glover is insufficient and its insufficiency cannot be ignored. See Elliot v. McFarlan 17 United School Dist., 162 Cal. App. 3d 562, 572 (1985) (“conclusory statements … are 18 insufficient. A requirement that there be some showing of the nature of the 19 communications or a statement of how they relate to the current representation without 20 disclosing what was actually communicated cannot reasonably be regarded as burdensome 21 or prejudicial.”). Simply put, aside from bare bones generalizations, Mr. Glover has not 22 provided the court with any evidence regarding what, if any, confidential information he 23 imparted to Mr. Mahoney. Finally, had Plaintiff and Ms. Bumer been available at the 24 hearing, it had been the court’s intention to question each of them as the circumstances 25 surrounding the phot identification of Mr. Mahoney. 26 Additionally, Mr. Kaufman’s and Ms. Bumer’s sweeping assertions that Mr. 27 Mahoney knows information about Mr. Glover’s use of aliases, past aliases, various 28 financial crimes, etc., is not borne out by the statements Mr. Mahoney made to the court. 1 At the hearing Mr. Mahoney, a credible witness when questioned by the court, stated that 2 he does not know any confidential information about Mr. Glover. The court has no reason 3 to doubt Mr. Mahoney statements or that he does not take his ethical obligations toward 4 his clients seriously. It therefore follows that Mr. Mahoney could not have shared any 5 confidential information regarding Mr. Glover because he does not have any information 6 to share. 7 Finally, the court cannot ignore the fact that the confidential information about 8 which Plaintiff complains is information that is ordinarily discoverable and was the subject 9 of Defendant’s first set of interrogatories. (See Comment 5 to Rule 1.9, regarding duties 10 to former clients which states that ‘[the fact that information can be discovered in a public 11 record does not, by itself, render that information generally known.”) As a Plaintiff 12 bringing suit, Mr. Glover has a duty to respond honestly to interrogatories and to provide 13 Defendant with appropriate information when requested. Plaintiff identified his use of 14 aliases in his supplemental disclosure statements and authorized the release of his GEO 15 Group records to Defendant. (See Struck Decl. at ¶¶ 8-19, 25.) Despite Plaintiff’s 16 counsel’s efforts to link the interrogatory requests to an attempt to exploit confidential 17 information on the part of the Defendant, the court declines to read anything untoward into 18 these standard discovery requests. Moreover, the information regarding the aliases was 19 subsequently disclosed by Plaintiff in documents filed by Plaintiff on the court docket, 20 which is accessible to the public, and was also discovered independently by the GEO Group 21 in a search of its own records. These facts provide additional doubt as to the necessity of 22 having to disqualify Mr. Mahoney as local counsel. 23 IV. Conclusion 24 In accordance with the foregoing, the court finds that Plaintiff has not met his burden 25 of demonstrating that Mr. Mahoney’s disqualification from this action is warranted. The [28] 1 || motion is therefore DENIED. 2 IT IS SO ORDERED. 3 || Dated: February 11, 2020 . ; He. ef Wet 5 n. Jeffreyf. Miller nited States District Judge