United States District Court, W.D. Louisiana
C. MICHAEL HILL, Magistrate Judge.
Pending before the Court are the Motions to Disqualify Counsel filed by the plaintiff, Holly Leleux-Thubron (Thubron") [rec. doc. 100] and Iberia Parish President, Errol Antoine "Romo" Romero ("Romero"), who is not a party to this litigation. [rec. doc. 99].
By these Motions, Thubron and Romero seek to disqualify defense counsel, J. Phil Haney ("Haney") formerly District Attorney for the 16th Judicial District, Haney's former Office, the District Attorney's Office for the Sixteenth Judicial District, Gary McGoffin ("McGoffin") and his law firm, Durio McGoffin, Stagg & Ackermann, P.C., (collectively "defense counsel"), attorneys of record for all named defendants in this action - the Iberia Parish Government ("Iberia Parish"), the Iberia Parish Council (the "Council") and Iberia Parish Council Members Thomas J. Landry, Troy F. Comeaux, Bernard Broussard, Ricky J. Gonsoulin, Glenn Romero, Roger Duncan, Jerome Fitch, and Marty Trahan (collectively the "Council Members"). The named defendants have filed Opposition [rec. doc. 106], to which Thubron and Romero have filed Replies. [rec. docs.113 and 111].
For those reasons set out below, the Motions to Disqualify Counsel [rec. docs. 100 and 99] are denied.
The general facts regarding the merits of this case have been set forth in previous rulings issued by this Court and will not be set forth in detail again in this ruling. Essentially, Thubron claims that the named defendant Council Members denied her procedural due process by voting to defund her position as a Maintenance Superintendent for Iberia Parish, without affording her notice and an adequate opportunity to be heard. The facts applicable to the instant Motions to Disqualify Counsel are discussed below.
Both Thubron and Romero seeks an order of this Court disqualifying defense counsel from representing the named defendants in this proceeding. They argue that the representation of the named defendants by Haney and McGoffin is in violation of the Rules of Professional Conduct as that representation is directly adverse to their purported client, Romero, thereby presenting an unwaivable conflict of interest. More specifically, they primarily argue that a concurrent conflict of interest exists because defense counsel took the deposition of Romero in this case and have declared their intention to use and publish this deposition, which has prompted the filing of a Motion for Protective Order by Romero pursuant to Rule 26(c), FRCP. The Movants' contentions are primarily based on Article IX, § 9-01 of the Iberia Parish Home Rule Charter which provides that the Iberia Parish District Attorney, formerly Haney, "shall serve as the legal advisor to the Parish Council, Parish President and all Parish departments, offices and agencies."
As was the case with the plaintiff's prior Motion for Sanctions filed pursuant to 28 U.S.C. § 1927, none of the named defendants, McGoffin's and Haney's clients in this case, or anyone authorized by them, has appeared, argued or even suggested that McGoffin or Haney have a conflict, much less a conflict which is unwaivable. To the contrary, one of defense counsel's clients, Council Member Broussard, testified in support of defense counsels' argument at the hearing of the Motion for Sanctions.
Since the filing of the instant Motions, the current District Attorney for the Sixteenth Judicial District, Martin B. Duhe ("Duhe"), has been substituted as counsel of record for Haney. [rec. doc. 115]. Where appropriate, the Court has construed the arguments against representation by Haney as arguments to disqualify Duhe. For the sake of clarity, however, the Court in this Ruling will refer to Haney as defense counsel, not Duhe.
A plaintiff has standing to seek disqualification of defense counsel even though she is not an aggrieved client because a plaintiff's attorney is authorized to report any ethical violations committed in the case. Hughes v. Pogo Producing, Co., 2009 WL 1938988, * 3 (W.D. La. 2009) citing Williamson Tobacco Corp., et al. v. Lockwood-Greene Engineers et al., 563 F.2d 671, 673 (5th Cir. 1977); see also King v. Martin, 2012 WL 4959485, *3 (W.D. La. 2012). Thus, Thubron has standing to assert the instant Motion.
Romero, on the other hand, is not a party to this litigation. Thus, the above cited jurisprudence does not expressly apply to him. Romero was not permitted to intervene in this action as no grounds for his requested intervention exist. Rather, Romero's sole involvement in this case is that of Movant for a protective order, in which Romero seeks to prevent the use of the deposition in anticipated unrelated litigation and the general publication and disclosure of his deposition which was taken by defense counsel in connection with this case.
In support of standing, Romero cites numerous cases. However, in each of these cases, the movant was a party to the lawsuit. Accordingly, with the exception of one case in which the Court expressly rejected the Movant's argument,  standing of the movant was not at issue. In this case, Romero admits that he is not a party to this litigation.
Romero also relies on United States v. Gopman, 531 F.2d 262 (5th Cir. 1976) for the proposition that any attorney who discovers an ethical violation is obligated to bring the problem to the Court's attention. The Gopman court stated that "[w]hen an attorney discovers a possible ethical violation concerning a matter before a court, he is not only authorized but is in fact obligated to bring the problem to that court's attention." Id. at 265. The Gopman court cited a 1972 Southern District of New York case, Estates Theatres, Inc v. Columbia Pictures Industries, Inc.,  which, in turn, cited the American Bar Association Code of Professional Responsibility Disciplinary Rule 1-103 as the basis for its ruling. At that time, Rule 1-103 stated, "A lawyer possessing unprivileged knowledge of a violation of DR 1-102 [relating to the propriety of professional conduct] shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." Estates Theatres, 345 F.Supp. at 98 and fn. 7. Thus, at that time, the reporting of disciplinary violations by attorneys to the Court was mandated.
Since the issuance of Gopman and Estate Theatres, however, this reporting requirement has changed. Attorneys are no longer required to report disciplinary violations to the Court. See Local Rule 83.2.10(2), Rules of the United States District Court for the Western District of Louisiana (requiring that complaints of attorney misconduct initiated by one other than a judge be filed in writing under oath with the Clerk of Court, who refers the Motion to the Chief Judge, or his designee for inquiry); Rule 8.3(a), La. Rules of Prof. Conduct ("A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct... shall inform the Office of Disciplinary Counsel."); see also Model Rules of Prof. 1 Conduct R. 8.3 & cmt. 3 (2014) ("A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct... shall inform the appropriate professional authority"; "A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances."). Because an attorney is no longer obligated to bring another attorney's alleged disciplinary violation to the Court's attention, the reasoning supporting the ruling of Gopman is no longer valid. Accordingly, the undersigned finds Romero's argument based on Gopman unpersuasive.
For these reasons, the Court finds that Romero lacks standing to seek disqualification of defense counsel in this case. In so finding, the Court notes that even if this Court were to find that Romero has standing to seek disqualification of defense counsel, because Romero's arguments mirror those presented to this Court by Thubron, his Motion would nevertheless be denied for the reasons set forth below.
To the extent that Romero argues that this Court should sua sponte address his Motion pursuant to the Court's general supervisory authority over attorneys involved in cases before the Court, that argument is likewise unpersuasive. While it is clear that this Court has general supervisory jurisdiction to act upon a properly filed Motion for Disqualification, that jurisdiction does not confer standing on Romero to raise the issue. Furthermore, it is well settled that the Court's inherent powers, including the inherent authority to regulate the conduct of attorneys practicing before this Court, "ought to be exercised with great caution" and, accordingly, "must be exercised with restraint and discretion." Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) quoting Ex parte Burr, 9 Wheat. 529, 531, 6 L.Ed. 152 (1824) and citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980).
Under the facts of this case, and given the resolution of the claims presented to this Court by the plaintiff, Thubron, the Court finds that a sua sponte exercise of its inherent powers with respect to Romero's Motion is not warranted.
The Western District of Louisiana has adopted The Louisiana Rules of Professional Conduct to govern the ethical practice of attorneys practicing before this court. Hughes v. Pogo Producing Company, 2009 WL 1938988, *2 (W.D. La. 2009) citing LR 83.2.4W (1999) and ...