Bambach v. Moegle

          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 ...