Opinion
CIVIL ACTION NO: 03-0545
November 25, 2003
ORDER AND REASONS
Before the Court is Rowan Companies, Inc.'s Motion to Disqualify Plaintiff Counsel. For the following reasons, the Court grants the motion to disqualify.
I. Background
Plaintiff Ronnie Parker alleges that he suffered serious injuries when he was employed by Rowan on its mobile offshore drilling unit, CECIL PROVINE, RIG 039. Parker contends that the cathead and the draw works on the rig malfunctioned due to Rowan's negligence and the unseaworthiness of the CECIL PROVINE, resulting in a significant blow and injury to his right arm. He further alleges that Rowan's negligent failure to provide him proper medical care compounded his injury. Parker sued Rowan, alleging Jones Act negligence and unseaworthiness of the CECIL PROVINE and seeking maintenance and cure. Rowan answered Parker's complaint, denying liability for negligence, unseaworthiness, and maintenance and cure and asserting that Parker's injuries, if any, were produced by his own fault or negligence. Rowan also asserts that the plaintiff's medical expenses were unreasonable and not causally related to any injury plaintiff may have sustained on defendant's vessel.
Rowan now files this motion to disqualify plaintiff's counsel, Best Koeppel APLC. In its motion, Rowan contends that the Court should disqualify Best Koeppel because Best Koeppel represented Rowan for 15 years in over 70 cases, primarily defending Jones Act negligence and unseaworthiness claims. Rowan identifies a variety of cases with similarities to this case in which Best Koeppel represented Rowan, including, inter alia, 11 other cases involving suits by floormen (the same job classification as Parker) and five other cases involving arm injuries (Parker alleges an arm injury). Rowan also notes that 37 of the personal injury cases in which Best Koeppel represented Rowan involved either the CECIL PROVINE or a virtually identical rig. Rowan indicates that over the course of Best Koeppel's 15 — year representation, Best Koeppel advised Rowan on a wide range of issues related to its defense of maritime personal injury cases. This advice involved matters such as safety, training, and the impact of important court decisions affecting the applicable areas of maritime and employment law. Further, Laurence Best of Best Koeppel spoke at Rowan's Supervisor's Training Seminar in 1990. Best Koeppel earned almost five million dollars in fees from representing Rowan.
See Def.'s Reply in Support of Mot. to Disqual., at p. 5.
Id. at p. 5-6.
See Def.'s Mot. to Disqual., Ex. 2, Hedrick Affidavit, ¶ ll.
See id., Ex. 7-C(1), Summary of Fees. The parties dispute whether the Court can consider the length of Best Koeppel's representation and the amount of fees billed to Rowan. Best Koeppel cites no authority for its proposition that the Court may not consider this information. The Court notes, on the other hand, that other courts have considered such information as a factor in their decisions, albeit not a determinative factor. See In re American Airlines, Inc., 972 F.2d 605, 621 (5th Cir. 1992); In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1343 (5th Cir. 1981); Fortner v. Int'l Diving Consulting Svcs., Inc., 1996 WL 50807, at *1 (E.D.La.). The Court finds that the length of Best Koeppel's representation and the fees generated therefrom are indications of the scope of Best Koeppel's representation and that they serve as, at most, indirect measures of the level of trust and confidence that Rowan reposed in Best Koeppel over the years. In this context, the Court also considers that the number of cases for which Rowan retained Best Koeppel was on a steep decline toward the end of their relationship.
Best Koeppel terminated its relationship with Rowan in March 2002, which was approximately six months after Parker's accident aboard the CECIL PROVINE. At that time, Rowan's retention of Best Koeppel for its maritime personal injury work had been on the wane for several years. When Best Koeppel severed ties with Rowan, Best Koeppel still represented Rowan in one ongoing case, Cantner v. Rowan Companies, Inc., from which it withdrew as Rowan's representative. Best Koeppel retained documentation obtained over the course of its 15 — year representation of Rowan until April of 2003, when it returned the documents at Rowan's request. Best Koeppel filed this suit on Parker's behalf on February 20, 2003, and thus Best Koeppel still possessed Rowan's files during the time it represented Parker in this matter.
Rowan timely filed this motion to disqualify Best Koeppel from representing Parker in this case. For the following reasons, the Court grants Rowan's motion to disqualify.
II. Discussion
The Fifth Circuit has made clear that "[m]otions to disqualify are substantive motions affecting the rights of the parties and are determined by applying standards developed under federal law." In re American Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992) (citing In re Dresser Indus., 972 F.2d 540, 543 (5th Cir. 1992)); see also Green v. Administrators of the Tulane Educational Fund, 1998 WL 24424 (E.D.La.). Although federal courts may adopt state or ABA rules as their ethical standards, whether and how these rules apply are questions of federal law. See American Airlines, 972 F.2d at 610. The ethical canons that are relevant to this Court's opinion include (1) the local rules for the Eastern District of Louisiana, (2) the ABA's Model Rules of Professional Conduct, (3) the ABA's Model Code of Professional Responsibility, and (4) the Louisiana State rules of conduct. See Horaist v. Doctor's Hospital of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001); FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1311-12 (5th Cir. 1995).
The United States District Court for the Eastern District of Louisiana has adopted the Rules of Professional Conduct adopted by the Supreme Court of the State of Louisiana for its Rules of Disciplinary Enforcement. LR83.2.10E. The following Louisiana Rules of Professional Conduct are relevant to the present motion:
Rule 1.9 Conflict of Interest: Former Client A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.Rule 1.10. Imputed disqualification: General rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9, or 2.2.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.
These rules have substantially similar counterparts in the ABA Model Rules. See MODEL RULES OF PROF'L CONDUCT R. 1.9, 1.10. In addition to these ethical standards, the Court also considers the public interest and the litigants' rights. See Dresser, 972 F.2d at 543.
Rowan moves to disqualify Best Koeppel based on Best Koeppel's previous representation of Rowan in numerous Jones Act cases. Rowan argues that Best Koeppel should be disqualified under Rule 1.9(a) because Best Koeppel has represented it in matters that are substantially related to this case in which Best Koeppel proposes to represent its adversary. In this regard, Rowan focuses the Court's attention on three particular cases, the Tally, Fincannon and Cantner cases, in which Best Koeppel previously represented Rowan. Rowan also argues that it obtained Best Koeppel's advice on issues that arose often in its maritime personal injury cases, such as issues regarding its policies and procedures on training and safety matters. In particular, Rowan obtained Best Koeppel's advice on the applicability of the "self-critical analysis privilege" to certain documents Rowan routinely generates in connection with rig mishaps. Rowan also sought Best Koeppel's advice regarding new developments in the relevant areas of maritime and employment law and their impact on Rowan.
Rowan argues in the alternative that Best Koeppel should be disqualified under Rule 1.9(b). Rowan contends it provided Best Koeppel with confidential information throughout the course of Best Koeppel's representation of Rowan that it could now use to Rowan's detriment. In particular, Rowan notes that Laurence Best of Best Koeppel participated in a training seminar for its supervisory personnel. Rowan also points to specific confidential documents to which Best Koeppel had access, such as Rowan's claims files for the cases in which Best Koeppel represented Rowan and a confidential expert study regarding maintenance rates. Rowan also argues that it sought advice from Best Koeppel on a host of other issues, such as maintenance and cure issues that were not necessarily in litigation and the impact of important court decisions in the maritime and employment law fields on Rowan's future operations. All of this information, according to Rowan, requires Best Koeppel's disqualification. The Court addresses each of these arguments in turn.
A. Disqualification Under Rule 1.9(a)
i. Applicable Law
In the Fifth Circuit, the "substantial relationship" test governs disqualification under Rule 1.9(a) based on a former representation. The Fifth Circuit summarized the elements of this test as follows:
A party seeking to disqualify opposing counsel on the ground of a former representation must establish two elements: (1) an actual attorney — client relationship between the moving party and the attorney he seeks to disqualify and (2) a substantial relationship between the subject matter of the former and present representations.American Airlines, 972 F.2d at 614 (citing Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1569 (5th Cir. 1989)). The test is "categorical in requiring disqualification once a substantial relationship between past and current representations is established." Id. The substantial relationship test is not to be applied, however, in a "mechanical" way so as to forever foreclose a lawyer from representing an interest adverse to a former client. Id. at 614.
There are two underlying concerns of the substantial relationship test: "the duty to preserve confidences and the duty of loyalty to a former client." Id. at 618. As noted by the American Airlines Court,
the existence of a lawyer's duty of loyalty means that the substantial relationship test is not solely concerned with the adverse use of confidential information. What the duty of loyalty adds to the duty of confidentiality is clearly presented in Corrugated:
Container's complaint is that the district court failed to explain how [the lawyer's] advice would be relevant or substantially related to this action. The advice does not need to be "relevant" in the evidentiary sense to be "substantially related." It need only be akin to the present action in a way reasonable persons would understand as important to the issues involved.972 F.2d at 618-19 (quoting In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1346 (5th Cir. 1981)). The disqualification rule at issue not only protects an attorney's former clients from the use their own information against them, but it also fosters "`the frank exchange between attorney and client,'" id. at 619-20 (quoting Wilson P. Abraham Const. Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977)), and preserves the climate of trust and confidence necessary for the attorney — client relationship to exist. Id. at 620.
In this case, the parties dispute whether Canon 9 of the ABA Ethical Standards is applicable to the Court's resolution of the motion to disqualify Best Koeppel. Canon 9 states that "[a] lawyer should avoid even the appearance of impropriety." The Fifth Circuit has not been consistent regarding the role Canon 9 plays in the disqualification analysis. Compare American Airlines, 972 F.2d at 619 "[T]he `appearance of impropriety' has no relevance to our probe of ethical restraints") with Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168, 172 (5th Cir. 1979) ("A client would feel wronged if an opponent prevailed against him with the aid of an attorney who formerly represented the client in the same matter. . . ., We recognize that this concern implicates the principle embodied in Canon 9 that attorneys `should avoid even the appearance of impropriety'"); In re Dresser Indus., 972 F.2d 540, 544 (5th Cir. 1992) (citing with approval the consideration in Brennan's of "whether a conflict has (1) the appearance of impropriety in general, or (2) a possibility that a specific impropriety will occur, and (3) the likelihood of public suspicion from the impropriety outweighs and social interests which will be served by the lawyer's continued participation in the case"); and United States Fire Ins. Co., 50 F.3d at 1314 (citing Dresser with approval). Although the Fifth Circuit held in American Airlines that the "appearance of impropriety" had "no relevance" to its probe of ethical restraints, 972 F.2d at 619, the Court explained that it had historically interpreted Canon 9 as a way to protect a client's loyalty interests. Id. The Court emphasized that it would continue to protect the client's loyalty concerns in its application of the substantial relationship test. Id. As a result, the Court focuses here on the substantial relationship test as applied by the Fifth Circuit and considers whether the relationships are substantial in light of Best Koeppel's duty of loyalty, as well as its duty of confidentiality, to Rowan.
Two irrebuttable presumptions apply under the substantial relationship test in this circuit: First, once it is established that the previous matters are substantially related to the present case, "the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation." Id. at 614 (citing Duncan v. Merrill Lynch, Pierce, Fenner Smith Inc., 646 F.2d 1020, 1028 (5th Cir. 1981). Second, there is an irrebuttable presumption that "confidences obtained by an individual lawyer will be shared with the other members of his firm." Id. at 614, n. 1; see also Corrugated Container, 659 F.2d at 1346.
The party who seeks to disqualify his former lawyer bears the burden of proving that the present and former representations are substantially related. Duncan, 646 F.2d at 1028; see also American Airlines, 972 F.2d at 614. The movant must "delineate with specificity the subject matters, issues and causes of action presented in former representation" so that the district court can determine if the substantial relationship test has been met. Duncan, 646 F.2d at 1029. Further, the Fifth Circuit has held that " `[w]here conflict of interest or abuse of professional confidence is asserted, the right of an attorney freely to practice his profession must, in the public interest, give way in cases of doubt.'" Doe v. A Corporation, 709 F.2d 1043, 1047 (5th Cir. 1983) (quoting Chugach Elec. Ass'n v. United States District Court, 370 F.2d 441, 444 (9th Cir. 1966), cert. denied, 389 U.S. 820 (1967)) (disqualifying attorney in a class action suit in which the attorney attempted to represent the class of which he was a member).
The Fifth Circuit has applied the substantial relationship test to address attorney disqualification in cases that fall along a continuum, from those in which the linkage is clear to those in which the connection is nebulous and superficial. At one end of the spectrum are cases like Duncan, in which the Court found an insufficient basis for disqualification. See Duncan, 646 F.2d 1020. In Duncan, the Fifth Circuit found that defendant Merrill Lynch failed to meet its burden to establish the requisite "substantial relationship" between the case at issue and the counsel's previous representation of Merrill Lynch. See id. at 1028. The Court stated that the focus must be on "the precise nature of the relationship between the present and former representations" and that the court must engage in a "painstaking analysis of the facts and [a] precise application of precedent." Id. at 1029 (quoting Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168, 173-74 (5th Cir. 1979) (internal quotations omitted)). The Court concluded that even though plaintiff's counsel previously represented Merrill Lynch on a variety of matters over a relatively long period of time, this was alone insufficient to establish the requisite nexus. The Court determined that the district court had improperly placed the burden on the nonmovant to prove that the matters were not substantially related. Id. at 1028. Applying the burden instead to the movant, the Court found that Merrill Lynch had merely pointed to a "superficial resemblance" between the former representation and the current case and thus had failed to meet its burden. Id. at 1029. For example, Merrill Lynch asserted that the previous cases and the case at issue all involved causes of action arising under federal and state securities laws, but it did not specify the precise issues involved in each of the cases to establish their similarity to the case before the court. Id. at 1030. Similarly, Merrill Lynch indicated that one of the previous cases involved its handling of margin accounts but failed to establish that a related margin account question was at issue in the Duncan case. Id. Because the Duncan Court concluded that the district court improperly applied the burden to the nonmovant and Merrill Lynch's allegations failed to meet the requisite burden, the Fifth Circuit remanded the case for further factual development regarding whether there existed a substantial relationship between the former and current representations.
In cases on the other end of the spectrum, the Fifth Circuit has found a substantial relationship to exist between the former representations and the representation at issue. In Corrugated Container, for example, the Fifth Circuit upheld the district court's disqualification of defendant's counsel. 659 F.2d at 1343. Defendant's counsel, Chadwell, Kayser, Ruggles, McGee Hastings, Ltd., had represented plaintiff Kraft, Inc., for fifty years and had served as general counsel for the Kraft Foods Division for most of those years. Id. at 1345. Chadwell then represented the defendant in an antitrust case brought by Kraft as a purchaser of defendant's products. The Court noted that the district court had identified two specific issues that were common to Chadwell's representation of Kraft and its representation of the defendant in Corrugated Container. Id. Chadwell argued that the advice given to Kraft regarding the these issues was not relevant or substantially related to the action at hand. Id. at 1346. The Court rejected a strict test of relevance and required only that the advice be "akin to the present action in a way reasonable persons would understand as important to the issues involved." Id. Chadwell had given Kraft unspecified advice about its purchasing practices, and defendant had propounded interrogatories about Kraft's purchasing practices. The Court found that the present action and past representation concerned the very same subject matter and therefore were substantially related. Id. The Court also rejected Chadwell's argument that the presumptions that arise under the substantial relationship test are rebuttable. Id. at 1346-47. The Court noted that the presumption that confidences were given by the client to the attorney through the course of the substantially related representation ``avoids compelling the former client to prove the very things that he seeks to keep confidential." Id. at 1347.
In American Airlines, the Fifth Circuit issued a writ of mandamus upon petition by defendant American Airlines, directing the district court to disqualify plaintiff's counsel, Vincent Elkins. 972 F.2d at 628. The Court concluded that a substantial relationship existed between the suit in which V E represented the plaintiff, Northwest Airlines, and three matters in which V E had previously represented American Airlines. The Court again required precision in defining the relationship between the current and former representations, together with a careful adherence to precedent. 972 F.2d at 614. The Court further held that "a lawyer who has given advice in a substantially related matter must be disqualified, whether or not he has gained confidences." Id. at 619. The movant need not prove, however, that the matters are so related that "the lawyer's continued involvement threatens to taint the trial." Id. at 616.
After examining the representations in substantial depth, the American Airlines Court found a disqualifying relationship between VE's current representation and three earlier matters. Id. at 621-28. With respect to each matter, the Court identified specific issues and subject matters that were common to both the former and current representations, even though the antitrust and contract causes of action were not the same. With respect to the first matter, the Court determined that it involved an alleged 1982 price-fixing solicitation by American's president and American's alleged attempt to monopolize the Dallas-Fort Worth airport, and these same allegations were prominently featured in the plaintiff's complaint in the case before the Court. Id. at 621-23. Addressing the second matter, the Court concluded that American's incremental revenues and American's use of override commissions paid to travel agents were issues common to both the previous case and the case before the Court. Id. at 623-25. The Court rejected Northwest's argument that the cases were distinguishable with respect to the override commissions because the plaintiffs alleged that they had different market effects. Id. at 625. The Court instead held "that the two representations need only involve the same `subject matter' in order to be substantially related." Id. The Court confirmed that a substantial relationship exists when the two suits involve the same practices and procedures. Id. Finally, regarding the third matter, the Court determined that the monopolization case before the court was substantially related to the merger advice VE had earlier provided to American because both matters involved the issue of market definition.
Eastern District of Louisiana cases also fall along the substantial relationship continuum established by the relevant Fifth Circuit precedent. In Hampton v. Daybrook Fisheries, 2001 WL 1444933 (E.D.La.), for example, this Court denied defendant's disqualification motion in a Jones Act case in spite of allegations that a partner in the law firm representing the plaintiff had previously represented the defendant in various Jones Act personal injury cases. Id. at *1. The Court concluded that the movant failed to meet its burden of showing that a substantial relationship existed between the subject matter of the former and present representations. Id. The movant failed to detail the extent of the attorney's involvement in those cases and failed to describe the specific nature of the cases. Id. Further, the attorney indicated that he had performed only routine tasks as an associate on the defendant's cases, and the last time he represented Daybrook was six years before the suit currently before the Court. Id. The Court concluded that the movant had identified only a "superficial resemblance" between the present and former representations, and "[t]he Fifth Circuit requires much more than superficial similarities to satisfy the `substantial relationship' test." Id. at *3.
Toward the other end of the spectrum, on the other hand, the court found in Partner v. Int'l Diving Consulting Svcs., Inc., 1996 WL 50807 (E.D.La.), that there existed a substantial relationship between counsel's three previous representations of the defendants, interrelated offshore oil and gas service companies, and its current representation of a personal injury plaintiff. Id. at *2. The Fortner court based its conclusion on the finding that the three previous suits and the current suit all stemmed from personal injury claims involving the same barge. Id. The court found a substantial relationship even though in each case the plaintiffs suffered different types of injuries under factually distinct circumstances. Id., cf. Consolidated Grain Barge Co., Inc. v. M/V CSS Atlanta, 2000 WL 977606 (E.D.La.) (finding a substantial relationship based on similarity of issues between the former and current representations, not identity of facts). The court noted that counsel had access to confidential communications and the safety procedures and practices of the defendant as a part of the previous representations, which implicated counsel's duties of loyalty and confidentiality to his former client. See Partner, 1996 WL 50807, at *2. The court concluded that the previous representations required disqualification. Id. at *3.
Having reviewed the relevant case law, the Court now turns to the particular facts of this case. ii. Substantial Relationship
The Court notes that Best Koeppel moved for leave to file the affidavit of Elizabeth Alston, an alleged expert on legal ethics. Expert evidence is admissible to the extent that it will assist the trier of fact. FED. R. EVID. 702. In this case, the identification and application of ethical principles to the facts of this case is well within the purview of the Court's experience and expertise. An expert opinion in this field is not helpful to the Court. The Court therefore denies the motion for leave to file Alston's affidavit. Best Koeppel also moved for leave to supplement the affidavit because the first affidavit submitted to the Court failed to include Exhibit 1 to Alston's affidavit, Alston's curriculum vitae. Because the Court denies the motion for leave to file Alston's affidavit, the Court also denies the motion to supplement Alston's affidavit.
The parties do not dispute that there existed an actual attorney — client relationship between Best-Koeppel and Rowan. The parties dispute only whether that former representation is substantially related to this case. The Court therefore turns to the second prong of the American Airlines test and determines whether there is a substantial relationship between the subject matter of the former and present representations.
Rowan focuses on three specific cases that it argues are substantially related to this case. In the Talley case, Timothy Talley was a seaman aboard the GILBERT ROWE, another of Rowan's mobile offshore drilling units. Talley sued Rowan for Jones Act negligence and unseaworthiness and also sought maintenance and cure. Talley alleged that he suffered from food poisoning from undercooked or contaminated food, and as a result he sustained severe internal injuries. Talley also alleged that Rowan failed to provide him with adequate medical care, which included a failure to provide timely transportation to a hospital for treatment. Rowan disputed its liability for negligence, unseaworthiness, and maintenance and cure, and it asserted that Talley's injuries, if any, were produced by his own negligence or were the result of a preexisting condition. Plaintiff deposed William Hedrick as Rowan's corporate representative. Plaintiff also deposed the rig superintendent aboard the GILBERT ROWE at the time of Talley's accident, James Rawson, on two different occasions. Best Koeppel met confidentially with both Hedrick and Rawson to prepare for their respective depositions and then defended them at the depositions. The depositions included topics such as Rowan's processes and policies related to hiring, orientation and training, safety, and providing medical treatment to injured personnel on the rig.
See Pla.'s Opp., Ex. 16, Talley Complaint.
Id.
Id.
Id.
Hedrick is currently Rowan's Health Safety and Environmental Manager. Def.'s Mot. to Disqualify, Ex. 2, Hedrick's Affidavit ¶ 2.
Def.'s Mot. to Disgual., Ex. 7-K Hedrick Depo.
Id., Ex 8, Rawson Declaration.
Id., Ex. 2, Hedrick Affidavit ¶ 15, Ex. 8, Rawson Declaration.
Id., Ex. 7-K, Hedrick Depo., Exs. 7-J(1) and 7-J(2), Rawson Depo.
Id.
In the Fincannon case, Shelly Fincannon sued Rowan after her husband, Jason Fincannon, died as a result of severe injuries he sustained while working aboard the CECIL PROVINE. Plaintiff alleged Jones Act negligence and unseaworthiness of the CECIL PROVINE. She sought damages for her loss of support and for the wrongful death of Jason Fincannon, and she alleged a survival action for the pain, suffering, and emotional distress that Jason Fincannon suffered. Rowan denied liability and raised various defenses, including Jason Fincannon's fault. The parties settled the suit before trial. The plaintiff deposed Rawson in this case, who was the rig manager aboard the CECIL PROVINE at the time of Jason Fincannon's accident. Best Koeppel prepared and defended Rawson at this deposition also. Further, Hedrick again served as Rowan's corporate representative in this case. Hedrick states in his affidavit that he communicated with Best Koeppel regarding all facets of this litigation, including trial strategy and settlement. Hedrick also indicates that Best Koeppel interviewed and/or deposed various other crew members in connection with this case. As a part of Best Koeppel's representation of Rowan in this matter, Peter Koeppel inspected the CECIL PROVINE on December 12, 2000. He reported his findings to Hedrick in a letter dated December 22, 2000. Koeppel evaluated the accident location in light of Rowan's potential negligence and Jason Fincannon's own fault.
Pla.'s Opp., Ex. 22, Fincannon Complaint.
Id.
Id.
Pla.'s Opp., Ex. 23, Rawson Depo.
Id.
Def.'s Mot. to Disqual., Ex. 2, Hedrick Affidavit ¶ 21.
Id. at ¶ 24.
Pla.'s Opp., Ex. 24.
Id.
In the Cantner case, Joseph Cantner averred that he sustained severe injuries to his leg while a seaman aboard the ROWAN FORT WORTH, another of Rowan's mobile offshore drilling units. Cantner alleged Jones Act negligence and unseaworthiness. Cantner filed his complaint in November of 2001, and Best Koeppel represented Rowan in this case until it withdrew as Rowan's counsel in March 2002.
Pla.'s Opp., Ex. 25, Cantner Complaint.
Id.
Id.
Def.'s Mot. to Disqual., Ex. 3, Letter Dated March 5, 2002.
After a careful analysis of the facts of the cases, the Court finds that the Parker case is substantially related to the Talley and Fincannon cases, but not to the Cantner case. Regarding the Cantner case, Rowan establishes that it is the most recent Jones Act case in which Best Koeppel represented Rowan, and Cantner alleged that he sustained injuries when he was struck by rig equipment, which Parker similarly alleges in this case. Rowan approaches Cantner in a most conclusory fashion, however, and the Court finds that Rowan has failed to meet its burden of proving that Cantner is substantially related to the Parker case.
With respect to the Talley and Fincannon cases, on the other hand, the Court finds that their relationships to the Parker case are more akin to the substantial relationships noted in the American Airlines, Corrugated Container, and Fortner cases than to the relationships noted in the Duncan and Daybrook Fisheries cases. Rowan has identified more than superficial similarities between the Parker case and each of these two earlier cases. Plaintiffs in each of these cases alleged Jones Act negligence and unseaworthiness of the respective vessels, just as Parker alleges in this case. Talley and Fincannon alleged damages similar to those Parker alleges, such as pain and suffering, lost future wages, and emotional distress. Although the factual situations underlying the specific allegations differ, both the Talley and Parser cases involve allegations of inadequate medical care, and the issue of Rowan's role in the causation and extent of the medical injuries is present in both cases. Further, Best Koeppel prepared and defended Hedrick as Rowan's corporate representative in the Talley deposition, and Hedrick indicates that he will most likely be Rowan's corporate representative and a witness in this case. Best Koeppel also prepared and defended Rawson in his depositions in both the Talley and Fincannon matters. Rawson was the rig manager for the CECIL PROVINE at the time of Parker's accident, and therefore he will likely be deposed in this case as well.
Pla.'s Opp., Ex. 16, Talley Complaint, Ex. 22, Fincannon Complaint.
Def.'s Mot. to Disqual., Ex. 2, Hedrick Affidavit ¶ 16.
The Fincannon and Parker cases involve the same rig, the CECIL PROVINE. In its answers to Rowan's interrogatories, Best Koeppel listed the CECIL PROVINE crew members it may depose in this case. Hedrick indicates that Best Koeppel interviewed and/or deposed a number of these same crew members as Rowan's representative in connection with the Fincannon case, such as Jason Cranford who was a tourpusher aboard the CECIL PROVINE at the time of Fincannon's accident and was the CECIL PROVINE rig superintendent at the time of Parker's accident. Further, Koeppel physically inspected the CECIL PROVINE on December 12, 2000, a mere nine months before Parker's accident. Both Rowan's answer in the Fincannon case and Koeppel's letter to Hedrick regarding his inspection clearly indicate that the plaintiff's fault was an issue in that case. Best Koeppel prepared and defended Hedrick for his deposition in the Fincannon case, in which Hedrick was deposed about employee safety training at Rowan. In addition, Best Koeppel interviewed CECIL PROVINE crew members about witnessing the safety training received by the plaintiff. Rawson was deposed in Fincannon about the records Rowan maintains on employee performance and rule violations. In this case, Rowan also raises the defense of plaintiff's fault. Rowan's defense of comparative fault will necessarily involve issues regarding employee orientation and training. This case will likely involve the same safety training policies and potentially the same witnesses to the execution of those policies on the CECIL PROVINE. Further, both cases involve the issue of subsequent remedial measures. In this regard, Best Koeppel specifically advised Rowan about the potential applicability of the "self-critical analysis privilege" to the production of documents that Rowan prepares in connection with rig mishaps, such as the "Corrective Action Form." Best Koeppel advised Rowan on how to best construct the form to satisfy the self — critical analysis privilege and/or the attorney — client and work — product privileges. As the Fifth Circuit has held, "provision of legal advice on a substantially related matter by itself requires disqualification." American Airlines, 972 F.2d at 619. Rowan indicates that it completed a Corrective Action Form after Parker's accident, and therefore the discoverability of such form will clearly be at issue in this suit. Best Koeppel's argument that the Corrective Action Form was produced in the Fincannon case does not negate the applicability of its advice in this case.
Id., Ex. 10.
See Rec. Doc. 3, Rowan's Answer.
Rowan provided copies of this analysis to the Court for in camera inspection. Def.'s Mot. to Disqual., Ex. 15.
Further, the Court cannot ignore the fact that during the course of Best Koeppel's representation of Rowan in Talley and Fincannon, Rowan viewed Best Koeppel as a part of its team of defense lawyers, regularly communicating and sharing information with it on matters Rowan considered important to its defense of maritime personal injury cases, such as case law developments and the maintenance study. Best Koeppel disputes the extent and relevance of the advice and information it shared with Rowan. Rowan, on the other hand, documents a steady stream of communications with Best Koeppel on a wide range of litigation-related issues. Because of the level of generality with which Rowan describes most of this information, these communications alone would not carry the day on whether Talley and Fincannon are substantially related to Parker. This flow of communication provides additional insight, however, into the context of the parties' relationship.
See, e.g., Def.'s Mot. to Disqualify, Ex. 7-B, Redacted Confidential Memoranda, Ex. 15, "Self — critical Analysis Privilege" Advice, and the maintenance study provided to the Court for in camera inspection.
Best Koeppel attempts to distinguish this case from the Talley, Fincannon, and Cantner cases by pointing to factual differences between Parker and each of these cases. As noted by the Court above, however, the substantial relationship test requires common subject matters, issues and causes of action, but it does not require the same factual scenarios in both cases. Cf. Fortner, 1996 WL 50807, at *2; Consolidated Grain, 2000 WL 977606, at *3; see also City of El Paso v. Salas — Porras Soule, 6 F. Supp.2d 616, 623-24 (W.D.Tex. 1998) (finding a substantial relationship between previous representation of client in tax matters and current suit to collect final judgment against client in which every facet of client's financial affairs would be at issue).
Based on the foregoing analysis, the Court finds that the current case is substantially related to matters in which Best Koeppel previously represented Rowan. The Court therefore presumes that relevant confidential information was disclosed during the former period of representation. As a result, the Court must disqualify Best Koeppel in this case.
B. Disqualification Under Rule 1.9(b)
Rowan argues that, in the alternative, if the Court concludes that the current matter is not substantially related to Best Koeppel's previous representation of Rowan, then the Court should disqualify Best Koeppel under Rule 1.9(b). Because the Court concludes that the current case is substantially related to Best Koeppel's previous representation of Rowan, the Court need not address Rowan's alternative argument.
H2 C. Other Motions by the Parties
The Court has received numerous other motions by the parties in addition to the ones previously discussed. Rowan moves to strike the affidavit of Elizabeth Alston. Because the Court denied Best Koeppel leave to file the affidavit, the Court dismisses Rowan's motion to strike the affidavit as moot. Rowan also moves to strike certain portions of the affidavits of Laurence Best and Peter Koeppel attached to Best Koeppel's opposition to Rowan's motion to disqualify. The Court finds that the motion has no merit and denies it. Lastly, Best Koeppel moves for leave to file a supplemental affidavit and memorandum to support its opposition to Rowan's motion to disqualify. The Court grants Best Koeppel's motion.
The Court notes that Best Koeppel submitted two motions for leave to file a supplemental affidavit. Best Koeppel indicates that the second motion contains substantially the same supplemental affidavit and motion but is more clearly organized and contains an additional document that was referred to in the affidavit but not attached to the first submission. The Court therefore denies the first motion for leave to file as superseded by the second.
D. Future Representation
The decision in this case was painstaking and, in the end, a difficult one. At this point in time the relationship between this case and Best Koeppel's previous representation of Rowan is too close for the Court to allow Best Koeppel to continue to represent the plaintiff. Nothing in this opinion should be construed though as a finding that Best Koeppel may never represent an interest adverse to Rowan or that it cannot now represent a Rowan adversary in another case.
III. Conclusion
For the foregoing reasons, the Court grants defendant's motion to disqualify plaintiff's counsel.