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Motion To Disqualify Counsel

Motion to disqualify counsel

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Motion To Disqualify Counsel

Motion to disqualify counsel

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IN THE SUPERIOR COURT OF CHATHAM COUNTY»), STATE OF GEORGIA Phe PETER DELATORRE, MICHAEL DELATORRE, ROBERT VON LOEWENFELDT, and LAWRENCE HARRIS, ) ) ) ) ) Civil Action No.: CV1S-0879-AB Plsintis, ) vs ) ) WILLIE C. LOVETT, etal ) ) ) Defendants, MOTION TO DISQUALIFY COUNSEL AND STAY PROCEEDINGS AND INCORPORATED BRIEF IN SUPPORT COME NOW Peter Delatorre, Michael Delatorre, Robert Von Loswenfeldt, and Lawrence Haris (collectively, “Plaintifs"), PLAINTIFFS in the above-captioned mater, and move the Court for an Order disqualifying counsel for certain Defendants based on violations of Georgia Rule of Professional Conduct 4.2 by the Savannah City Attomey and staying all proceeding in th instant ase, respectilly showing the Court the fllowing INTRODUCTION Plaintiff, who are all former Savannah-Chatham Metropolitan Polise Department (-SCMPD") officers, Srought this case 10 recover damages under the Geargia Racketeer Influenced and Comp! Organizations Act (O.C.G.A. § 16-14-1 et seq.) (hereinafter “Georgia RICO" or *RICO"), Pints claims arise from injuries they suffered by eason ofthe takeover of an otherwise legitimate organization, SCMPD, by racketeer who subverted, corrupted, and ‘undermined the legitimacy of good police work. Each defendant either directly participated in, ‘or conspired together with those participants to threaten, transfer, and ultimately force Plaintiffs Page | of 1S ‘ou ofthe Department, inorder to prevent Plaintiffs from continuing to disrupt the operation of @ cconupt enterprise After notifying Defendants of their claims via ante litem notice, Plaintiffs were directly contacted and interviewed by MDB Intemational investigators who were acing as agents ofthe City Atomey, Brooks Stillwell Counsel forthe Plaintiffs was not notified that suid contact would occur and did not consent to such contact. At the time these interviews occurred, Stillwell and his agents knew the Plaintiffs were represented by counsel and that any direct ‘communication with them outside the presence of counsel would constitule a violation of the Rules of Professional Conduct. ‘Notwithstanding the prohibition on contac, said interviews occurred, and the information erived therefrom was shared with Stillwell, woven into reports that were prepared for Stillwell and others, and then shared with outside counsel who now represent certain individual Defendants While the MDB Intemational investigators are not subjst to Georgia's Rules of Professional Conduct, the City Attomey is subject to those Rales and is responsible for the actions of his agens:! The City Attomey has coordinated and communicated with counsel for cetsin individual Defendants and, therefore, Stilwell’s volstons of the Rule are imputed vicariously to outside counsel Because 2 specifically identifiable impropriety did occur and the likelihood of public suspicion inthe fair administration of justice outweighs any marginal social interest that will be ‘The MDB Intemational investigators worked fom the oflces ofthe City Attorney while pring their invesignson and reported ety to the City Adore. Page 2 of 15 served by a defense counsel's continued participation in this case, all counsel who have consulted with, and/or coordinated with City Attomey Stillwell should be disqualified from continued representation of any Defendant in this case. 1. FACTUAL AND PROCEDURAL HISTORY Afier being terminated, Plaintiffs retained counsel to bring any and all clsims arising from thie injures. Once represented, Plaintiffs, by and through counsel, provided ante fem notice tothe City of Savannah, and Chatham County, as to certtin oftheir claims and directed ‘hat all contact occur via their counsel. See Ante Litem Notices, stached as Exhibits A to D. Counsel also delivered a copy of ssid ante litem notices to Savannah City Attomey Stillwell, See id, Stillwell ostensibly initiated an investigation into criminal activity within SCMPD by retaining a private investigative firm, MDB Intemational in SeptemberiOctaber 2013. Afierreciving notice of the representation, Stillwell either direted, or permitted, his investigator to contact and interview the individual Plaintiff. During that’ meeting, MDB International investigators asked questions related to the matters raised inthe ante Item notices, and the now pending suit, On January 17, 2014, undersigned counsel telephoned Brooks Sullwello inform him that Plaintiffs were on notice of Stllwells violation of Rule 4.2 During the phone call, Stillwell agreed thet Peter Deletore, Michael Delatore, and Robert von Loewenfeldt had been contacted by MDB International investigators afer receipt of | the ante litem notices, Stillwell stated thatthe investigators were tying to determine whether officers within SCMPD were “committing crimes.” Stillwell also stated that “some of your Page 3 of 15 clients..may [have claims)” Undersigned counsel stated that he had no advance knowledge that the interview would take place, and thus could not have consented tothe commanication. Plaintiffs filed suit on October 1, 2015, (On October 15, 1015, City Attorney Stillwell announced during a city couneil meeting, that city atorceys would represent Defendants Brown, Tolbert, Gerido and Ramsey. ARGUMENT AND CITATION TO AUTHORITY A. Legal Standard Pursunt to OCGA. § 15-1-3() the Court has broad power to contol parties and officers inorder to administer justice. This broad power includes the power to csqualfy counsel from representation ina particular case. Clos v. Pugia, 20 S.E.24 774, 775 (Ga. App. 1992). The Court sheuld not apply the rule of disqualification mechanically, but rather, “should look to the facts peculiar o each case. (Cit]" Jd. at 775. Disqualification is proper where two conditions are satsid: (1) “at last a reasonable possibility that some specifically identifiable impropriety di occur” and (2) “the likelihood of public suspicin or obloquy outweighs the social interest which will be servd by a lawyer's continued paricipation in a particular case." Kleiner v. First Nat, Bank of Atlanta, 781 F.2d 1193, 1210 (Ith Ci, 1985) (as relied on in Pugia, 420 SE. 2d at 775). “A mation to disqualify should be made with reasonable promptness after party discovers the ficts which leed to the ‘otion.” (Citstion and punctuation omitted.) Yates»: Dublin Sir Shop, 579 8.8.24 796 (Ga. ‘App. 2003). Page 4 of 15 B. The City Attorney's Communications with Represented Parties Violatied the Rules of Professional Conduct. Pursuant tothe Georgia Rules of Professional Conduct, A lawyer who is representing a client in a matter shall not communicate about the ‘subject of the representation witha person the lawyer knows to be represented by ‘nother lawyer in the matter, unlese the lower ha the consent of the ther lawyer or is authorized to do so by law or court order, GAR BAR Rule 4-102, RPC Rule 4.2(a), According o the commentary to Rule 4.2, the so-called “anti-contact rule” serves important public interests. RPC R, 4.2 emt, (7). These interests include “) safe guarding the clien-lawyer relationship from interference by adverse counsel. d) reducing the likelihood that clients will disclose privileged or other information that might harm their interests; and e) maintaining the lawyer's ability to monitor the ease and effectively represent the cient.” Id. See also, Askins v, Colon, 608 S.£.24 6 (Ga. App. 2004) (finding that Rule 42 “was designed to protect a represented party's right to effective representation of counsel by preventing sdverse counsel from taking advantage of such party through undisclosed contact). ‘While nonlawyers are not directly subject to this Rule, the atloreys who supervise those nonlawyers are required to be held accountable for their agents’ conduct. See Rule 1.6(a). See also Hodge ¥. URFA-Sevion, LP, 798 86.26 314, 321 (Ga. 2014). Under Rule 1.6a), the lawyer must make reasonable efforts ensure thatthe nonlawye's conducts compatible with te professional obligations ofa lawyer: [and] a lawyer may not order or ratify nonlawyer's conduetifit would violate the Rules..." Hodge, 758 S.E.24 at 321 (citing Ree 1.6(a) ‘The ABA Committee on Ethics and Professional Responsibility, and its predecessor, the ABA Committee On Professional Ethies & Grievances, issued two formal opinions that answer the question presented by this case: whether a lawyer may circumvent Rule 4.2 by sending an Page 5 of 15 investigator to do on her behalf that which she is herself forbidden to do, See ABA Comm. on Ethics & Prof! Responsibility, Formal Op. 95-396: ABA Comm. On Prof Ethics & Grievances, Formal Op. $5 (1933). The answer given in 1933, “[olbviously such practice is reprehensible,” remained unchanged by 1995 when the Committee revisited the issue: “[the lawyer] may not circumvent the Rue..the lawyer is ethically responsible for the investigator's conduct.” Id, The Committee titled its 1933 Formal Orinion “i is improper for a municipal atomey to permit police officers to obtain writen statemeats from persons having persona injury claims against the municipality ‘when the attorney knows thatthe clsimants are represented.” ABA Comm, On Prof'l ies & Grievances, Formal Op. $5 (1933) Here, the City Artomey states that he retained the services of MDB Intematons) to investigate whether crimes were being committed within SCMPD. The gravamen of Plaintiffs claim is that they were the victims of crimes being committed within SCMPD and as a result of those crimes, Plaintiffs suffered injures, including the loss of their employment. The City Attorney had actual knowledge ofthese claims, and the fact that Paitffs were represented by counsel, fer receiving Plants" ane litem notiees. Without consent of Plaintifs" counsel. the City Attomey either directed or permitted his agents, the MDB Intemational investigators, to iterview Peter Delatorre, Michael Delatorre, and Robert von Loewenfel By communicating with represented parties outside the presence of counsel, the investigators increased the probability that Plaintiffs would disclose privileged information, or otherwise harm their ow interests. In addition, Stillwell and his investigators interfered with counsel's representation and foreclosed counsel's ability to monitor the ease and effectively Page 6 of 15 represent Plaintiffs. Because the City Attomey i responsible forthe conduct of his investigators, the investizators’ communications with represented parties absent consent of counsel, violated Rule 42. The Rules requir tha Stillwell be held accountable for ths violation. See Hodige 758 SE2d 01321 Under Georgia law, if one attorney in a firm is subject to disqualification, pursuant to Rule 1.109, the entre firm is subject to dsgualifieaton. Rescigno v. Vesa, 03 SF.24 65 (Ga. App. 2010). Although there appears to be no direct Georgia authority regarding vieerious disqualification of outside counsel, courts of other jurissictions that have considered the issue, have found that where there is an appearance of impropriety, disqualification of the second firm is warranted. See Fund of Funds, Ld». Arthur Andersen & Co, 567 F.2d 725, 233 (26 C1977) (disqualifying the associate firm because if only the conlcted firm were disqualified, it would be “allowing [the confited fim) to violate by indirection those very stitures it eannot directly contravene”), Here, not only is Stillwell accountable for violating the no-contact rule, that impropriety should be imputed to all counsel who have received information from Stillwell, consulted with MDB Intemational investigators, or otherwise been guided by MDB International's “Attorney Work Product"? Any information gleaned from MDB International's communications with Plsinttfs is tainted by Stillwell’s violation of the Rules and he would have been disqualified from this case, had he appeared. See Chapel v, State, 483 S.E.24 271, 272 (Ga. 1994) Current 2 The MDB Intemational Report. prepared by non-awyer investors, nde the supervision of Cy Altomey ‘lll amped withthe rae Aormey Work Prodi” » amis ued Defendants im thi individ capacities, and not agents or fin ofthe Cty of Sevannah. The Mayor and Aldermen ofthe City of Sevaneah, Mt Stilwell’ cent, were no aren heaton. Se Restatement Page 7 of 15, «counsel for Defendants who have accessed this information, by coordinating, communicating, ot otherwise cooperating with the City Attomey, must also be disqualified ‘Without vicarious disqualification, Plaintiffs would be left to wonder what information the City Attomey did or dié not share with outside counsel and how thst information, gleaned from a violative communication, might be used agninst them, Whether or not counsel have actual knowledge or possession of information gleaned fiom the violative communication, there is a significant likelihood of the appearance of impropriety, and as such, disqualification is merited. ‘The County Attorney Is Subject to Disqualification as a Necessary Fact Witness. Pursuant tothe Georgia Rules of Professional Conduct, (@) A lawyer shall not act as advocate attri in which the lawyer is likely to be necessary witness except where: (2) the testimony relates to an uncontested issue; (@) the testimony relates tothe nature and value of legal services rendered inthe (8) disqualification ofthe lawyer would work substantial hardship on the client. Georgia Rules of Professional Conduct, R. 3.74 ‘The party seeking disqualification under Rule 3.7 must “demonstrate thatthe lawyer's testimony is relevant to disputed, material questions of fact and that there is no other evidence available 10 prove those facts.” Clough v. Richelo, 616 S.E.2d 888, 891-92 (Ga. App. 2005), Once it is established thatthe lawyer is @ necessary witness, the court should disqualify the (hind) ofthe Law Governing Layes§ 123 emt ati (200) (corporate egal oie nd goverment offles are “fms for prpses ofthe vicarious imputation rl), 4 Rule 2.7 is designed to prosribe thee undesirable problems that chews ase within» counsels. wes sent: (when?) nwyes “ae forced into etal coals, hee credibility is improperly placed In so, ‘advocacy roles are impaired." See Mobley. State 488 S246 (Ga 1983). Page 8 of 15, lawyer fiom continued representation, absent one of the three exceptions, none of which is applicable here. See Rule 3.7(a)1)}(3), supra Here, there iss material question of fact as tothe extent fo which Defendants Abolt and Liakakis knew about criminal activity within SCMPD.! The testimony ofthe County Attorney is essential fo determining whether or not, and if so, at what pont, Defendants Abolt and Liakakis ‘were on actual notice of not only criminal activity within SCMPD, but also the specific offenses of witness intimidation and interference with reporting information toa law enforcement officer, as alleged by Plaintiffs in their Complaint. The issue of Defendants’ knowledge of, end agreement wit, a criminal enterprise within SCMPD is central to Plaintfi'elaims against Abolt and Liakakis. As argued more flly in §I(D), infra, any ardehip that Defendants would suffer 5 result of the disqulifiation ofthe County Attomey would be minimal. Because the County Attomey is a necessary witnes, and his testimony isnot subject to one ofthe tre exceptions to the general rule agsint counse-e-witnes, he should be disqualified fiom representation of Defendants Abolt and Liskakis. D. Any Prejudice to Defendants is Minimal and Oxtweighed by Public Sus the Fair Administration of Justice. n of ‘While “the right to counsel isan important interest which requires that any curtailment of the client's right to counsel of choice be approached with great caution,” that interest may be outweighed by “the degree to which (counsels) retention weuld have eroded public trust in the 5 Plain allege tat Defendents Liha and bolt bad acu! knowledge of he corp activity tat forms te ‘ass of his lawsuit See Comps ¥].43-47, 48, 0-5. Defendats Abo and Laake those allepains, ‘See [Liakais' and Abols] Answer te Corps 43-47 48 S01 (fd November 42013). " ahamenfld Borenstein, 26 SE.24607 (Ga. 1981), Page 9 of 15 judiciary" and the fair administration of justice, Clos v: Pugia, 420 S.E.24 at 775 (Ga. App. 1992), One of the primary factors considered by the court in weighing these competing interests is any specialized knowledge of the disqualified attomey, based on the length of time spent working on the case, See Hovdge, 758 S.E.2d at 318, {As ofthe fling ofthis Motion, those certain Defendants, whose cutent counsel Paints sock to be disqualified, have answered or otherwise responded to Plants? Complaint, Prior to receiving Defendants’ answers andlor responses, Plains could not have known who Defendants would choose as ther lawyers, only thatthe City Atomey recommended to the City Council that the City pay to defend Defendants Tolbert, Ramsey, Brown, and Gerido, ‘Those Defendants, who now are represented by ouside counsel have responded to Plants’ Complaint by arguing that he or she ie entitled to some form of immunity. Specifically, Defendants Tolbert, Ramsey, Brown, and Geri have claimed that he or she is being sued in his orher official capacity. Notwithstanding Defendants’ preliminary participation in the litigation, Plaintiffs have sought disqualification at the eatist posible moment, while the case isin its infancy. It is unlikely that, mere weeks into the representation, any ofthe Defendans risks losing “the benefit of its longtime counsel's specialized knowledge of its operations” (Citation emited), See Bernocohi. Forcucci. 614 S.E.24 775, 778 (Ga 2005). Defendant inthis ease are indivi Whose relationship with their lawyers has recently been formed and is without substantial commitment of resources. At this time, i is also unlikely that substitution of counsel for Defendants will cause any significant delay to the litigation. Current counsel appear to have "Kleiner Fir Not Bank of Alan, sypr a 1210 Page 10 0f 15, ‘borrowed much oftheir arguments from one another and those briefs could be reviewed by new ‘counsel in relatively short order, By contrast, the potential for public suspicion of the fair administration of justice i great ‘The City Attomey’s office and outside counsel retained by that office have coordinated their efforts to have it oth ways, Fist, as arsued above, the City Attomey tempted to circumvent the Rules of Profesional Conduet by directing private investigators to gather information om individuals he knew were represented by counsel. Stillwell then atempted to shield thot information from discovery by claiming it as “Attorney Work Product." (Once litigation commenced, Stillwell advised the Council not to be concemed about liability because each Defendant had been sued inc ually. After the Couneil voted to spprove retention of outside counsel, Defendants’ postion changed. Now they claim they were acting within the scope of ther employrnent and are entitled to immunity. Whether or not current counsel have actual knowledge of information gleaned impermissibly by the City Attomey, Plaintiffs should not be left to wonder what information the City Attomey did or did not share ‘with ouside counsel and how that information might be used aginst hem. This great risk to the fair administration of justice significantly outweighs Defendants’ interest in continuing to be represented by current counsel * See generally, Delennt Tolben’s Motion to Dismiss Defendant Ramsey's Motion o Dismiss; Defendant ‘Brown's Metin to Diss al arguing thc“. Pll Cline sre Bred by Sovereign Imma. 8. No Waiver of Sovereign Inmunty By the General Assembly), Indecd sbtail eating ad puting besween ad song Deendanis: bri seems o have occured Page 11 of 15, AA Stay of Proceedings Would Allow the Court the Time Necessiry to Craft an “Appropriate Remedy Within the Court's power to contol its own docket is the power to stay proceedings, ‘with the economy of time and effort for itself, for counsel, and fo° litigants” Bloomfield Liggett & Myers, nc, 198 S.E.24 144, 145 (Ga, 1973) (quoting Landis v. North American Company, 299 US. 248, 254 (1936). AS with disqualification, the Court should consider the Motion wo Stay by *weigh{ing] competing Interests and mainainfing) seven balance.” ld ere, a stay would allow the Court the necessary time to determine the reach ofthe City Attorney impropriety with regard to the interviews by MDB Intemational. Also, stay would allow all represented Defendants an opportunity to retain new counsel without risk of missed eadlines, CONCLUSION The Court has broad power to preserve public trust in the scrupulous administration of justice, and the integrity of the Bar. Within that power is the power to fashion a remedy for ‘whatever improper effect the City Attomey's misconduct has had in the cate, Because City Attorney Stilwell created a specifically identifiable impropriety, ané the likelihood of public suspicion outweighs any social interest served by current counsel's continued representation of Defendants, Plaintiffs request that current counsel for Defendants be disqualified. Finally, Plaintiffs ask that the Court stay all proceedings pending determination of their Motion to Disqualify {Signature appears on following page.} Page 12 of 15 RESPECTFULLY SUBMITTED, this 30th day of November 2015 410 East Bay Strect Savannah, Georgia 31401 (912) 236-9559 Telephone (912) 236-1884 Facsimile will@elaiborefiem com Page 13 of 15 THE CLAIBORNE FIRM. P.C. WILTAMR Lig. Georgia Bar Number: 126363 Attorney for Plainafs IN THE SUPERIOR COURT OF CHATHAM COUNTY STATE OF GEORGIA PETER DELATORRE, MICHAEL DELATORRE, ROBERT VON LOEWENFELDT, and LAWRENCE HARRIS, Civil Action No,: CV15.0879-AB Plaintiffs, ) ) ) ) ) ) vs. ) ) WILLIE C. LOVETT, eta ) ) ) Defendants Exhibit “A” ‘The Claibome Firm, P.C. Attorneys ot Law ‘HOE Bay Stet Savannah, Georgia 31401 “Telephone: 9122565559 ‘we aibomefinm om acide: 912.236185¢ Willan R.Chabore, Savanah Rath F. Claiborne -OfCoumel (CuayL- Reicha, Sarena (GA &NY) ‘Amy W. Fer OfCoua ‘writer's emai: sill fbometia eam November 2, 2013 LIA CRATIERD MAIL/RETURNRECEIPT. VIA CERTIRIBD MAUL RETURN REGED ‘DELIVERY NO. 7012 3050 38332033 27002 208 ‘The Honorable Eas Branch Jackson Stephanie Cute, City Manager Mayor, City of Savaenah P.O. Box 1027 Suvannah Cty al, 2 Floor Sevannth, Georgia 31402 2 Eas Bey Stet Savansal, George 31401 VIA GERTINIED MALL/RBTURNRECEIPT. VIA CERTUFTED MALL RETURN RECEIPT ‘DELIVERY NO: 7012 50001 2223070 ‘DELIVERY NO; 701205900, 23 2060 ‘The Honorable Al Seon RE. Abol, County Manager Chatham County Commision Chairman P.O. Bor 8i61 P.O. Box 8161 Savannah, Georgia 31412 ‘Savannah, Georgia 31401, Re: Claims of Peter Delatorre Ladies and Gentiemen: ‘We have been retsined by Peter Delatore in connection with injuries be incured as a result of the conduct of Police Chief Wilie Lovet, Major Julie Tolbert, Ceptain Hank Wiley, Captain Ben Herron, Sergeant Cleveland Lovett, Lieutenant Andre Olive, Wille Willams, ‘Malik Khaalis, the Savanneb/Chatham Metropolitan Police Deparimeat, the City of Savannah and other goverment officials who knew or should have known of thit conduct end who allowed that conduct to oceur or continue oF who participated inthe: conduct, ‘That conduct include, without limitation: violation of the Georgia Whistleblower Staite (OCG.A. § 45-1-4, violation of ether or both the State und Federal Racketeer Infvenced and ‘Corrupt Organizations (RICO) Acts; retaliation for reporting corraption and/or illegal activity, failure to promote for reporting coruption sndior illegal activity; defumetion personally and with, respect to his business reputation; invasion of privacy, placing Mr. Delatore in a false and ‘negative light personally and with respect to his business reputation; negligent hiring and retention; negligent infliction of emotional distress; end conspiracy among numerous individuals ‘under the employ or control of Savannah/Chatham Metropolitan Police Department and/or the City of Savannah end/or Chatham County to accomplish some or all of this condoct, and ‘atfiation of the above described conduct. Cairne Fo, LLC sf couse f The Claborne Frm P.C Atta Ofte: 60 Lenox Pott, Ata, Gorge 30524» 60) 42.5969 (Cherloe Ofiee'47 Bat Bhd, Suite 10, Chalo, North Carling 2303-704) 7026300 ‘Mayor Edna Branch Jackson Stephanie Cuter, City Manager ‘Al Scott, Chathamn County Commission Chairman RE, Aboll, Couny Manager November 22, 2013, Page 2 of 2 Given the overwhelming circumstances of lability in this mater, Mr, Delatore intends to purnue e claim of abusive litigation, if tigation is necessary. In that regard, notice and demand under O.C.G.A § 51-784 is hereby given that you voluntarily withdraw, bandon, discontinue or

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