United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge
matter is before the Court on the Defendant's Motion to
Reconsider [R. 44] this court's Order disqualifying
Defense counsel Kent Wicker. [R. 39.] Because the Defendant
does not raise any issue that is a clear error of law and
this Court does not see any manifest injustice that needs
corrected, Defendant's Motion for Reconsideration is
Motion for Reconsideration stems from the same factual basis
from the original Motion to Disqualify, the facts from that
opinion are incorporated by reference. As noted below, the
Court also makes one correction to the record.
March 10, 2011, three doctors from Saint Joseph Hospital in
London, KY, filed a qui tam complaint under the False Claims
Act “alleging that several doctors affiliated with SJL,
including Chalhoub, performed a variety of unnecessary
cardiac procedures, such as stents and pacemakers.”
[See R. 29 at 3; U.S. ex rel. Jones v. Saint
Joseph Health System, Inc, 6:11-cv-00081-GFVT.] In
response to the qui tam complaint, on September 29, 2011, the
Government sent a Civil Investigative Demand to St. Joseph
Health Systems. [R. 29 at 4.] As part of its response to the
Civil Investigation Demand, Saint Joseph Health Systems
“provided a privilege log . . . which contained a
number of entries that related to Chalhoub.” [R. 29 at
5.] Mr. Wicker was copied on this email. [Id. at 5.]
The Defendant points out in his current Motion for
Reconsideration that, though Mr. Wicker “was copied on
an email transmitting a privilege log to the government [, .
. . ] no party has suggested that Mr. Wicker was on any of
the emails included on the actual privilege log
itself.” [R. 44-1 at 2.] Since the Government does not
dispute this correction of the Court's opinion, the Court
accepts this correction as true.
Wicker was approached in mid-April 2017 to represent Dr.
Chalhoub. [R. 30 at 4.] He considered whether his
representation of CHI would impact his ability to represent
Dr. Chalhoub and wisely reached out to the Kentucky Bar
Association Ethics Hotline in a timely manner. [Id.]
Mr. Wicker spoke with Frank Mellen, a partner at Wyatt,
Tarrant & Combs and a volunteer for the Kentucky Bar
Association Ethics Hotline Committee, about his
representation and Mr. Mellen “concluded that there was
no conflict precluding Mr. Wicker's
representation.” [Id. at 5.]
Argument was conducted on May 26, 2017, on this limited
issue. This Court requested Mr. Wicker return to the Kentucky
Bar Association and seek another opinion with the additional
information the Government provided concerning Mr.
Wicker's representation of CHI and Saint Joseph Health
Systems. [R. 37 at 47.] Mr. Wicker promptly submitted the
additional information to the Kentucky Bar Association. On
May 31, 2017, Mr. Wicker notified the Court that the Kentucky
Bar Association declined to provide another
opinion. [See R. 33.]
Court entered a Memorandum Opinion and Order on June 13,
2017, holding that Mr. Wicker should be disqualified from
representing the Defendant pursuant to the Kentucky Supreme
Court Rule 1.9. [R. 39.] Defendant filed a Motion for
Reconsideration on June 22, 2017. [R. 44.]
not explicitly provided for in the Federal Rules of Criminal
Procedure, District Courts may evaluate Motions to Reconsider
in the criminal context “under the same standards
applicable to a civil motion to alter or amend judgment
pursuant to Fed.R.Civ.P. 59(e).” United States v.
Ogden, No. 06-20033, 2008 WL 2704539, at *1 (W.D. Tenn.
July 2, 2008). Federal Rule of Civil Procedure 59(e) provides
that a judgment can be set aside or amended for one of four
reasons: (1) to correct a clear error of law; (2) to account
for newly discovered evidence; (3) to accommodate an
intervening change in the controlling law; or (4) to
otherwise prevent manifest injustice. See also, ACLU of
Ky. v. McCreary County, Ky., 607 F.3d 439, 450 (6th
Cir.2010); Intera Corp. v. Henderson, 428 F.3d 605,
620 (6th Cir.2005). A district court has discretion to grant
or deny a Rule 59(e) motion. GenCorp., Inc. v. Am.
Int'l Underwriters, 178 F.3d 804, 832 (6th
Cir.1999). Re-argument is not an appropriate purpose for a
motion to reconsider. Davenport v. Corrections Corp. of
America, 2005 WL 2456241 (E.D.Ky. Oct. 4, 2005). The
Defendant seeks to set aside this Court's Order to
Disqualify Kent Wicker based on “clear error of law and
to prevent manifest injustice.” [R. 44-1 at 4.]
Accordingly, only these two factors will be considered.
Defendant objects to this Court's speculation as to
potential areas of conflict between Chalhoub and CHI/Saint
Joseph Health Systems, Mr. Wicker's current and former
clients, respectively. This Court relied on Bowers v.
Ophthalmology Grp., 733 F.3d 647, 651-52 (6th Cir.
2013), to “reconstruct” the original
attorney/client relationship and evaluate “what
confidential information could have been imparted in that
representation, and to decide whether that information has
any relevance to the attorney's representation of the
current client.” Speculation in this case is necessary
pursuant to Rule 1.9, as the comments make clear that the
“former client is not required to reveal the
confidential information learned by the lawyer in order to
establish a substantial risk that the lawyer has confidential
information to use in the subsequent matter.”2 Ky.
S.Ct. R. 3.130(1.9 cmt. 3).
Defendant suggests that this Court examine in camera
any information the Government deems privileged. This Court
has relied on Bowers v. Ophthalmology Grp., 733 F.3d
647, 651-52 (6th Cir. 2013), and finds support also in
Wheat v. United States, 486 U.S. 153, 164 (1988).
This Court does not need to be persuaded by “a
demonstration of actual conflict but by a showing of a
serious potential for conflict.” Wheat v. United
States, 486 U.S. 153, 164 (1988). Rule 1.9 anticipates
this type of scenario. Disqualifying an attorney because he
may have information that is confidential is difficult for
District Courts in the pretrial phase and Court must fully
examine the “facts and circumstances of each
case” to see where attorneys should be disqualified.
Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct.
1692, 1700, 100 L.Ed.2d 140 (1988). Viewing evidence in
camera would certainly have been an option for this
Court in making its decision, but no such demonstration of
actual evidence was needed to disqualify Mr. Wicker.
Defendant instead asserts that this Court should rely on an
unpublished District Court case from the North District of
Ohio, U.S. v. Farmer, Case No. 1:14-cr-362, 2015 WL
196027, *7 (N.D. Ohio Jan. 14, 2015). The Defendant asserts
that this case holds that “potential conflicts based on
hypotheticals that are not likely to develop into actual
conflicts do not warrant disqualification.” [R. 44-1 at
6.] First, this case is merely persuasive and was not decided
in Kentucky under Kentucky's ethics rules, but it also
did not hold that the Court cannot speculate when considering
whether to disqualify attorneys. Rather, it held more
specifically that the “'hypothetical'
conflicts” outlined by the Government in that specific
case with those specific facts were “not likely ...