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 Government's Second
Motion for Disqualification. [R. 45.] This Court previously
disqualified Mr. Wicker of Dressman Benzinger Lavelle PSC
from representing Dr. Chalhoub. [R. 39.] The Government now
moves to disqualify Ms. Nicole Elver and the entire firm of
Dressman Benzinger LaVelle PSC (DBL) from representing Dr.
Chalhoub. For the reasons stated below and because Ms. Elver
implemented an effective and timely screen, she and DBL are
not disqualified from representing Dr. Chalhoub and the
Government's Motion to Disqualify is
DENIED. [R. 45.]
Second Motion for Disqualification of Nicole Elver and the
entire firm of DBL stems from the same factual basis as the
original Motion to Disqualify Kent Wicker. The facts from
that opinion are incorporated by reference here.
[See R. 39.]
Wicker was approached in mid-April 2017 to represent Dr.
Chalhoub. [R. 30 at 4.] Mr. Wicker and Ms. Nicole Elver
entered their appearance on the matter on May 1, 2017. [R.
23.] Raising issues that Mr. Wicker had previously
represented CHI/SJHS, Dr. Chalhoub's former employer, the
Government orally moved to disqualify Mr. Wicker from
representing Dr. Chalhoub on May 26, 2017 during a
teleconference. [R. 29.]
details of Mr. Wicker's disqualification are detailed in
this Court's prior Memorandum Opinion & Order. [R.
39.] Mr. Reinberg, counsel for SJHS, who submitted an
affidavit petitioning the Court to disqualify Mr. Wicker
indicated that Mr. Wicker was retained as legal counsel for
CHI/SJHS “until at least May 23, 2013.” [R. 29-1
at 7.] In contrast, Ms. Elver has never been counsel to CHI
nor SJHS. In fact, she did not join DBL until April 1, 2014,
after Mr. Wicker's representation ended. [R. 48-1 at 1.]
Ms. Elver attests that she was not aware that Mr. Wicker had
represented CHI/SJHS until the issue “arose in the
context of the representation of Dr. Chalhoub.”
[Id. at 2.] The only communication Ms. Elver has had
with CHI/SJHS counsel occured on June 15, 2017. Then, Ms.
Elver sent notice to Mr. Reinberg that she was entering an
appearance on behalf of Dr. Chalhoub. [Id.] Ms.
Elver states that, “Mr. Wicker did not share any
confidential or attorney client communications relating to
CHI/SJHS with [her] while [she] was representing Dr.
Court entered a Memorandum Opinion and Order on June 13,
2017, holding that Mr. Wicker is 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.] That Motion for
Reconsideration was denied. [R. 51.]
the Court's opinion disqualifying Mr. Wicker, Ms. Elver,
at the request of Dr. Chalhoub, continued her representation
by instituting a screen and alerting counsel for CHI/SJHS.
[R. 48-1 at 3.] Ms. Elver directed the IT department to
“restrict Mr. Wicker's access to the electronic
case file” and to delete any files on his personal
drive that were associated with Dr. Chalhoub's case.
[Id.] She directed her assistants to remove paper
files from Mr. Wicker's office and lock them in a file
cabinet. [Id.] She sent an email to DBL's
Louisville office informing them of the screen and ordering
them to direct communications regarding the case to her.
[Id.] Ms. Elver ensured that Mr. Wicker's access
to future electronic documents is restricted and created a
new billing number under her name so that Mr. Wicker can no
longer access the billing records for the case against Dr.
Chalhoub. [Id.] Finally, Ms. Elver emailed counsel
for CHI/SJHS, Mr. Reinberg, and alerted him to her
representation of Dr. Chalhoub. [Id. at 4.]
May 26, 2017, and June 13, 2017, Mr. Wicker was not screened
from this case and, presumably, continued working on his
representation of the Defendant with Ms. Elver during that
time. After learning that Ms. Elver intended to stay on the
case, the Government moved to disqualify Ms. Elver and the
entire DBL firm. [R. 39.]
Sixth Amendment right to assistance of counsel is a
fundamental right so essential to a fair trial that it is
part of the Due Process Clause of the Fourteenth Amendment
and thus applicable to the states.” Serra v. Mich.
Dep't of Corr., 4 F.3d 1348, 1351 (6th Cir. 1993)
(quoting Gideon v. Wainwright, 372 U.S. 335, 344
(1963)). However, the Sixth Amendment does not provide a
right to a specific attorney and this Court has
“an independent interest in ensuring that criminal
trials are conducted within [relevant] ethical
standards.” Serra, 4 F.3d at 1353 (6th Cir.
1993); see also United States v. Gonzalez-Lopez, 548
U.S. 140, 152 (2006). The Supreme Court has affirmed that
trial courts “must be allowed substantial latitude to
evaluate in the light of their informed judgment the facts
and circumstances of each case, including any attempt by the
Government to ‘manufacture' a conflict to prevent a
defendant from obtaining particularly able counsel.”
Wheat v. United States, 486 U.S. 153, 153 (1988);
see also Gonzalez-Lopez, 548 U.S. at 152.
evaluating claims for disqualification, the court should
place a presumption in favor of Defendant's counsel of
choice, but “that presumption may be overcome not only
by a demonstration of actual conflict but by a showing of a
serious potential for conflict, ” even if the Defendant
wishes to waive the conflict. United States v. Hall,
200 F.3d 962, 965 (6th Cir. 2000); see also United States
v. Matsa, 540 F.Appx. 520, 523 (6th Cir. 2013),
Wheat, 486 U.S. at 153. Even where a party waives a
potential conflict of interest, this “does not bind the
courts.” Hall, 200 F.3d at 965. When a motion
for disqualification comes before the Court, the Court must
be mindful of the ability of parties to use this as a
“potent weapon;” and should carefully balance
“competing public policy interests of preserving client
confidences and of permitting a party to retain counsel of
his choice.” Manning v. Waring, Cox, James, Sklar
& Allen, 849 F.2d 222, 224 (6th Cir. 1988); see
also Serra, 4 F.3d at 1352 (6th Cir. 1993).
parties agree that Rule 1.10(d) of the Kentucky Rules of
Professional Conduct govern in this case of imputed conflict,
(d) A firm is not disqualified from representation of a
client if the only basis for disqualification is
representation of a former client by a lawyer presently
associated with the firm, sufficient to cause that ...