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Kevin Furey v. Police Officer Travis Wolfe

May 3, 2011

KEVIN FUREY
v.
POLICE OFFICER TRAVIS WOLFE,



The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge

MEMORANDUM AND ORDER

In this action, Plaintiff Kevin Furey ("Plaintiff") alleges that his civil rights were violated by Police Officer Travis Wolfe ("Officer Wolfe"), the City of Philadelphia (the "City"), and Philadelphia Police Commissioner Charles Ramsey ("Commissioner Ramsey") (collectively, "Defendants"), as a result of Officer Wolfe making an off-duty arrest of Plaintiff in the early morning hours of April 5, 2008. Presently before the court is Defendants' motion to disqualify Plaintiff's counsel, Margaret Boyce Furey, Esquire,*fn1 which includes a request that Defendants be permitted to depose Ms. Furey as a fact witness. I held oral argument on the motion on April 21, 2011.*fn2 For the reasons that follow, Defendants' motion to disqualify Plaintiff's counsel will be denied without prejudice, and Defendants' request to depose Plaintiff's counsel will be granted, with strict limitations as set forth herein.

I. FACTS AND PROCEDURAL HISTORY

On March 10, 2010, Plaintiff commenced this action in the Philadelphia Court of Common Pleas, and on April 23, 2010, Defendants removed it to this Court. See Doc. 1. Plaintiff alleges that his civil rights were violated pursuant to 42 U.S.C. § 1983. See Compl. at First Cause of Action. Plaintiff also alleges various state law claims against Officer Wolfe. Id. at Second Cause of Action. Among other things, Plaintiff alleges that Officer Wolfe unlawfully used force against him without probable cause to believe he had committed a crime, assaulted Plaintiff, subjected him to an unlawful arrest, and committed perjury.See id. at ¶¶ 9-16. Plaintiff further alleges that Officer Wolfe's conduct was the result of policies, practices and customs and deliberate indifference on the part of the City and Commissioner Ramsey. See id. at First Cause of Action.

As alleged in the complaint, on April 5, 2008, Plaintiff, an undergraduate at Temple University, was arrested by Officer Wolfe and charged with several criminal offenses. See Compl. at ¶¶ 9, 14, 30. Of particular relevance to the instant motion are the allegations pertaining to the handling of the criminal charges:

17. At a continued Preliminary Hearing held in November 2008, Internal Affairs detectives appeared and had a secret meeting with the Chief of the Philadelphia District Attorney's Municipal Court Unit, Charles Ehrlich, whereupon Charles Ehrlich offered plaintiff admission to an ARD [Accelerated Rehabilitative Disposition] program only if plaintiff agreed not to sue and other conditions. The Internal Affairs officer, defendant Wolfe, the District Attorney in the Courtroom, Deputy District Attorney Ehrlich, screamed at plaintiff's attorney in a threatening manner, terrorizing plaintiff, who overheard in the hallway, believing that he would be wrongfully prosecuted and convicted of crimes he did not commit.

18. At the actual ARD hearing, which took place on June 10, 2009, plaintiff was placed in the ARD program without the requirement that he not sue defendants and the other requirements as set by Charles Ehrlich, who had no authority to impose terms for admission into the ARD program, since Ehrlich was not Chief on the ARD unit.

Compl. at §§ 17-18. There is no dispute that Ms. Furey represented Mr. Furey at the criminal proceedings referenced in these paragraphs.

The parties experienced certain difficulties during the discovery phase of this litigation, particularly during depositions conducted by Ms. Furey and original defense counsel, Craig Straw, Esquire, of the City of Philadelphia Law Department. During depositions of Mr. Ehrich and Officer Wolfe, counsel engaged in numerous, often lengthy, exchanges, including instances in which Ms. Furey challenged the deponents' testimony with her own recollection of events. When this occurred during the deposition of Mr. Ehrlich held on January 31, 2011, Mr. Straw asked Ms. Furey whether she would be a fact witness in this civil lawsuit, to which she replied: "I'm going to be, probably. I'm looking into lawyers." Ehrlich Dep., attached to Doc. 55 at Exh. B, at 85. And during the deposition of Officer Wolfe held on February 10, 2011, Ms. Furey responded to a similar question from defense counsel by stating that she was "going to be" a fact witness. Wolfe Dep. at 307.

On February 25, 2011, Jeffrey Kolansky, Esquire, entered his appearance on behalf of Defendants, after which Mr. Straw withdrew. See Docs. 50 & 54. On March 3, 2011, new defense counsel filed an "Emergency Motion for Disqualification of Plaintiff's Counsel and Stay of Discovery Pending Entry of New Counsel and Concurrent Motion for Enlargement of Time to Conduct Discovery," which Judge McLaughlin referred to me for disposition. See Docs. 55 & 56. On March 7, 2011, Patricia Heenan, Esquire, entered her appearance on behalf of Plaintiff Kevin Furey, thus joining (but not replacing) Ms. Furey. See Doc. 57. The following day, I issued an order staying discovery pending resolution of the present motion for disqualification of Plaintiff's counsel. See Doc. 58.

On March 15, 2011, Plaintiff filed a brief in opposition to Defendants' motion for disqualification. See Doc. 60. Thereafter, Defendants filed a reply, and Plaintiff filed a sur-reply. See Docs. 61 & 62. On April 21, 2011, I conducted oral argument on Defendants' motion and request to depose Ms. Furey.*fn3 The matter is now ripe for disposition.

II. DISCUSSION

A. Defendants' Motion to Disqualify Counsel "A 'district court's power to disqualify an attorney derives from its inherent authority to supervise the professional conduct of attorneys appearing before it.'"

Holcombe v. Quest Diagnostics, Inc., 675 F.Supp.2d 515, 518 (E.D. Pa. 2009) (quoting United States v Miller, 624 F.2d 1198, 1201 (3d Cir. 1980)); see also Jordan v. Philadelphia Housing Auth., 337 F.Supp.2d 666, 671 (E.D. Pa. 2004). "When presented with a motion to disqualify counsel, a court must strike a 'delicate balance' between the competing considerations." Wyeth v. Abbott Laboratories, 692 F.Supp.2d 453, 458 (E.D. Pa. 2010) (quoting Pioneer-Standard Elec., Inc. v. Cap Gemini Am., Inc., 2002 WL 553460 (N.D. Ohio Mar. 11, 2002)). The competing considerations include the unfettered practice of law, maintaining the integrity of the legal profession, and striking a "balance [between] the plaintiff's right to retain counsel of his or her choice against the opposing party's right to prepare and try a case without prejudice." Nesselrotte v. Allegheny Energy, Inc., Civ. No. 06-1390, 2008 WL 2890832, at *4 (W.D. Pa. July 23, 2008) (citing Belote v. Maritrans Operating Partners, L.P., Civ. No. 97-3993, 1998 WL 136523, at *6 (E.D. Pa. Mar. 20, 1998)); Wyeth, 692 F.Supp.2d at 458. However, ...


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