United States District Court, E.D. Michigan, Southern Division
ORDER DENYING WITHOUT PREJUDICE MOTION TO DISQUALIFY
PLAINTIFFS' LAWYERS [#14]
HON.
DENISE PAGE HOOD
I.
INTRODUCTION
Plaintiffs
filed this 42 U.S.C. § 1983 action on December 23, 2018,
alleging that Defendants violated their Fourth, Fifth, and
Fourteenth Amendment rights during a child protective
services investigation, the removal of the children from
Plaintiff Mark Bambach's (“Bambach”) home,
and resulting judicial proceedings against Bambach. On March
19, 2019, Defendant Lapeer County (the “County”)
filed a Motion to Disqualify Plainiffs' Lawyers (the
“Motion”). [Dkt. No. 14] Plaintiffs filed a
response, to which the County replied. Defendants Gina
Moegle, Susan Shaw, and Stacy May (the “State
Defendants”) filed a concurrence in the Motion, to
which Plaintiffs responded.[1] The Court held a May 1, 2019
hearing regarding the Motion. For the reasons that follow,
the Court denies the Motion without prejudice.
II.
BACKGROUND
Bambach
and his minor children, Plaintiffs M.B. and E.B., brought
this § 1983 action against the County and the State
Defendants after a child protective services investigation
and ensuing events inflicted great harm on Plaintiffs.
Plaintiffs allege that Defendant Gina Moegle
(“Moegle”) “knowingly made false statements
and omissions in order to ‘justify' her removal of
the Bambach children” from Bambach's home. [Dkt.
No. 9 at ¶¶ 153-156, 165-167, 234-235] Plaintiffs
also allege that Defendant Stacy May (“May”)
“knew or should have known that the order to remove the
Bambach Children . . . was based upon Moegle knowingly making
falsities and omissions.” [Dkt. No. 9 at ¶¶
271-272, 275]
Plaintiffs
have alleged that their lawyers (Maria L. Hoebeke and Brian
M. Garner) have personal knowledge that Moegle made alleged
false statements and that May had knowledge of those alleged
false statements stemming from conversations between
Plaintiffs' lawyers and Moegle and May during the course
of the child protective services investigation and
proceedings. [Dkt. No. 9 at ¶¶ 85, 88-90, 92-94]
The County (and through its concurrence, the State
Defendants) claim that Plaintiffs' lawyers' alleged
personal knowledge of Moegle's alleged falsehoods and
May's alleged knowledge of those falsehoods are relevant
to Plaintiffs' Fourth and Fourteenth Amendment claims
against Moegle and May, such that it will be necessary for
Garner and Hoebeke to appear as witnesses at trial to
testify.
III.
ANALYSIS
Plaintiffs
first ask the Court to strike the Motion because the County
misrepresented that Plaintiffs denied concurrence in the
Motion. The Court denies this argument (at least as it
relates to Garner), as the County acknowledged that it did
seek concurrence but did not receive a response from Garner,
such that it should have indicated that lack of response
rather than that Plaintiffs had denied concurrence.
See E.D. Mich. L.R. 7.1(a)(2). The Court finds that
the County's representation with respect to Garner was a
mistake, likely borne out of standard motion practice, as
there is no evidence that it was malicious or intentional.
The analysis may be different with respect to Hoebeke. Prior
to filing the Motion, the County never attempted to contact
Hoebeke regarding disqualification [see Dkt. No. 17,
PgID 349-52], even though it should have sought her
concurrence as an “attorney” or “other
person[] entitled to be heard on the motion.”
See E.D. Mich. L.R. 7.1(a)(2) (“the motion or
request must state: (A) there was a conference between
attorneys or unrepresented parties and other persons entitled
to be heard on the motion”).
Plaintiffs
contend that, although they do not agree that their lawyers
should be disqualified, they were prejudiced by the Motion
because they were willing to stipulate that their attorneys
would not testify as fact witnesses at trial - one of the
remedies they assert the County sought in the Motion.
Plaintiffs are correct that, at the outset of the Motion, the
County requests that the Court “disqualify
Plaintiffs' lawyers from participation at trial or
alternatively, disqualify Plaintiffs' lawyers as fact
witnesses.” [Dkt. No. 14, PgID 321] And, it is
undisputed that, in response to the Motion, Plaintiffs
repeatedly offered to stipulate that Garner and Hoebeke would
not testify at trial. [See, e.g., Dkt. No. 17, Exs.
B and C] The County rejected that stipulation, arguing that:
(1) it had never sought that relief in the caption of the
Motion, nor in the relief requested at the close of the
Motion; and (2) Hoebeke and Garner are necessary fact
witnesses at trial and must be disqualified because their
testimony would violate Michigan Rule of Professional Conduct
3.7.
As to
both Garner and Hoebeke, the Court finds that the filing of
the Motion seeking disqualification of Plaintiffs'
lawyers was not prejudicial to Plaintiffs because Plaintiffs
are not willing to concur that their attorneys should be
disqualified.
Turning
to the County's argument that Plaintiffs' lawyers
must be disqualified as trial counsel in this case, the Court
notes that Rule 3.7 (Lawyer as Witness) provides:
(a) A lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services ...