Grimes v. District of Columbia, 2015 U.S. App. LEXIS 12534 (D.C. Cir. July 21, 2015):

The district court erred in the sequence in which it rendered its decisions. Because a claim of counsel's conflict of interest calls into question the integrity of the process in which the allegedly conflicted counsel participates, the court should resolve a motion to disqualify counsel before it turns to the merits of any dispositive motion. That procedure was not followed here. We therefore vacate the district court's grant of summary judgment and its denial of the motion to disqualify and remand this case for further proceedings. Because the district [*3]  court will decide in the first instance whether there was a conflict of interest or an appearance of such a conflict in violation of applicable ethics rules and, if so, will determine the appropriate remedy, we offer only limited guidance on the remaining issues the parties briefed and leave to the district court to decide them in view of its ruling on the merits of the motion to disqualify.

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The district court erred in failing to consider Grimes's motion to disqualify counsel for the District of Columbia before ruling on the government's summary judgment motion. The basis of Grimes's response to the government's motion for summary judgment was that Peter Nickels, then the Attorney General for the District of Columbia, had a conflict of interest disqualifying him from appearing as counsel, even ex officio, on this case. As Attorney General, Nickels was the lead signatory on the government's briefs in this case in the district court. Grimes's assertions of conflict of interest arose when her counsel learned that, before he became Attorney General, Nickels had represented a class of plaintiffs that included plaintiff's decedent [*12]  Karl Grimes in a lawsuit claiming overcrowding and unsafe conditions, and seeking systemic reform at the Oak Hill juvenile detention facility where Grimes later died. See J.A. 90; see also Appellee Br. 34; J.A. 130 (Amended Complaint at 37, District of Columbia v. Jerry M., 738 A.2d 1206 (D.C. 1999) (No. 1519-85) (alleging that "[a]s a result of the [Oak Hill] counselors' inadequate supervision of the residents, there are frequent assaults of residents by other residents" and that "[a]s a result of these actions and omissions of the defendants, many of the children residing at Oak Hill suffer physical harm")).

Grimes believed that Attorney General Nickels's role in this case thus violated applicable rules of professional conduct. Grimes brought the matter to the district court's attention in a motion to strike the motion for summary judgment and to disqualify the office of the Attorney General from representing the government in the case. Apart from his status as the principal and ultimately accountable lawyer for the District of Columbia, and the appearance of his name on the papers, there is no record of Nickels's particular involvement in this litigation. Nor, however, is there any indication of measures the government may have taken to isolate Nickels and prevent his involvement in or influence over the supervision, strategy, or conduct of this litigation.

Grimes cites various ethical rules. The government brushes aside the conflict allegation. We do not analyze her disqualification claim here, but it appears that Grimes has raised at least a plausible claim of conflict of interest. The Rules of Professional Conduct of the District of Columbia forbid a lawyer from, inter alia, representing another party in the same or substantially related matter as that in which he represented a former client, where the interests of the former and current client are materially adverse. See D.C. Rule of Prof. Conduct 1.9. The complaint in this case raises a claim that, while distinct from the Jerry M. claims in important ways, seem to overlap with them: The fatal attack on Karl Grimes was allegedly due to failure on the government's part to employ sufficiently numerous and adequately trained staff to maintain a safe environment at Oak Hill.

In its response to Grimes's motion to strike, the government emphasized that Attorney General Nickels "does not serve as counsel of record in the instant matter." The government nonetheless listed [*14]  the Attorney General at the top of the list of counsel on the brief, just as on earlier filings, and cited no authority that only counsel "of record" is subject to conflicts rules. The government also pointed to the Superior Court's order holding that the Attorney General's office was not conflicted off of the Jerry M. case itself, even though Nickels had been plaintiff's counsel in Jerry M. and then became Attorney General while that case was pending. The government failed to acknowledge, however, the Superior Court's observation that, in Jerry M., "at the outset of Mr. Nickels's employment with the District government, it instituted measures to separate Mr. Nickels from participation in this litigation." J.A. 179. No such prophylactic separation was shown to have been in place regarding the litigation of this case.

The district court did not consider the merits of the attorney-disqualification motion. Instead, after granting summary judgment against Grimes, the court denied that motion as moot. Typically, a district court enjoys broad discretion in managing its docket and determining the order in which a case should proceed. See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151-52 (D.C. Cir. 1996); see also In re Fannie Mae Secs. Litig., 552 F.3d 814, 822 (D.C. Cir. 2009); Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218 (5th Cir. 1998). That discretion is limited, however, [*15]  in circumstances such as these. Because a conflict of interest could affect the fairness and impartiality of the proceeding, or the perception of fairness and impartiality, we hold that a plausible claim of conflict must be resolved before allegedly conflicted counsel or the court takes further action in the case.

For the very reasons that the ethics rules forbid lawyers to enter into representations that create conflicts of interest or the appearance thereof, a district court must promptly address allegations of conflict. As the Sixth Circuit recently held in a similar case, "[a] district court must rule on a motion for disqualification of counsel prior to ruling on a dispositive motion because the success of a disqualification motion has the potential to change the proceedings entirely." Bowers v. Ophthalmology Grp., 733 F.3d 647, 654 (6th Cir. 2013). The Bowers court emphasized that conflicts of interest are particularly problematic at the summary judgment stage, making it "especially important" to prioritize ruling on a disqualification motion before deciding a Rule 56 motion. Id. For example, "if counsel has a conflict from previously representing the party seeking disqualification . . . there is a risk that confidential information could be used [*16]  in preparing or defending the motion for summary judgment . . . ." Id. Resolving asserted conflicts before deciding substantive motions assures that no conflict taints the proceeding, impairs the public's confidence, or infects any substantive motion prepared by or under the auspices of conflicted counsel.²

2 The Seventh Circuit in Harker v. University Professionals of Illinois, 172 F.3d 53 (7th Cir. 1999) (unpublished), denied as moot a motion to disqualify counsel in [*17]  light of its decision that the case was barred by the Eleventh Amendment and the statute of limitations. There did not appear to be any argument in that case that disqualification motions must be resolved before the court rules on dispositive motions.

The structural importance of counsel's avoidance of conflicts of interest and any appearance of such conflicts, and the high respect due to binding requirements of professional responsibility, support the Bowers approach. Once a party moves to disqualify an adverse party's counsel, the district court may not entertain a dispositive motion filed by the very counsel alleged to be conflicted until the court has first determined whether that counsel is disqualified. As in Bowers, the district court here erred in first granting summary judgment and then denying as moot the motion to disqualify. That error requires us to vacate the district court's grant of summary judgment and its denial of the motion to disqualify, and remand for the district court to consider the motion to disqualify before ruling on summary judgment.³

3 Rule 56(e) empowers district courts in response to motions for summary judgment to issue "any . . . appropriate order." Fed. R. Civ. P. 56(e)(4). As discussed in the text, district courts must decide motions to disqualify before ruling on the merits of a summary judgment—an obligation readily accommodated by Rule 56(e)'s allowance for any "appropriate order."