The opinion of the court was delivered by: Buckwalter, S. J.
Currently pending before the Court is a Motion by Plaintiff Tyrian Granberry to Disqualify Counsel for Defendants Steven T. Byrne & the City of Chester (collectively "Defendants"). For the following reasons, the Motion is denied.
According to the facts set forth in the Complaint, on June 15, 2009, a woman by the name of Nicole Parker became engaged in an argument with another woman named Taniel Paynter. (Compl. ¶ 8.) A man, believed to be Ms. Paynter's boyfriend, subsequently assaulted Ms. Parker inside her home at 921 Pennell Street, Chester, PA 19103. (Id. ¶ 5.) A 911 call was placed as the assault was in progress, and Defendant Officer Stephen T. Byrne responded by going to Ms. Parker's house. (Id. ¶ 6.) Ms. Parker did not know Ms. Paynter's boyfriend and, as such, was unable to identify the assailant. (Id. ¶ 8.) Officer Byrne interviewed Ms. Paynter, as well as several others who witnessed the events, but no one would or could describe the assailant. (Id. ¶¶ 10-11.)
On June 23, 2010, Ms. Parker went to the police station to inform Officer Byrne that she believed her attacker to be Plaintiff Tyrian Granberry. (Id. ¶¶ 12-13.) At that point, Officer Byrne showed Ms. Parker a single photograph, which he identified as a picture of Mr. Granberry. (Id. ¶¶ 14-16.) Ms. Parker in turn identified the man in the photograph as Mr. Granberry. (Id. ¶ 17.) Officer Byrne documented this meeting and photo identification in a subsequently-prepared police report. (Id. ¶ 18 & Ex. A.) Based on the identification, Officer Byrne drafted a warrant and affidavit of probable cause for the arrest of Tyrian Granberry. (Id. ¶¶ 19-20 & Ex. B.) Following approval of the warrant by a Magisterial District Judge, Mr. Granberry was arrested at home on July 8, 2009, in view of his children, spouse, and several neighbors. (Id. ¶¶ 21-23.)
Thereafter, at the police station, Mr. Granberry was subjected to a strip search and body cavity inspection. (Id. ¶ 24.) He spent many hours in the custody of the Chester police while his arrest was processed, including several hours handcuffed to a bar rail, prior to being placed in a holding cell. (Id. ¶¶ 25-26.) At approximately 8:00 p.m., Mr. Granberry went before a Magisterial District Judge for a preliminary arraignment. The judge set bail and remanded him to confinement at the Delaware County Prison. (Id. ¶¶ 27-28.) Plaintiff remained in custody for three days and two nights before making bail. (Id. ¶ 29.) During that time, he was forced to submit to a second strip search and body cavity inspection. (Id. ¶ 32.)
A preliminary hearing for Mr. Granberry was held on July 14, 2009, at which time the charges against him were dropped. (Id. ¶¶ 33-34.) Ms. Parker had purportedly gone to the police station on the day of Plaintiff's arrest to inform police that Mr. Granberry was not actually the assailant. (Id. ¶ 36.) When the police refused to listen, she came to the preliminary hearing to expressly recant her identification. (Id. ¶¶ 35-36.) Plaintiff speculates that because Mr. Granberry's spouse's first name is Teneal - pronounced the same as the "Taniel" with whom Ms. Parker argued before being assaulted - and because Ms. Parker heard on the street that "Teneal's" significant other was Tyrian Granberry, she wrongfully assumed that Mr. Granberry was her assailant. (Id. ¶ 37.)
On July 13, 2011, Plaintiff initiated the present litigation alleging a violation of his constitutional rights under 42 U.S.C. § 1983 against both Officer Byrne and the City of Chester Police Department. The Defendants, jointly represented by Attorney Robert P. DiDomenicis, filed their Answer and Affirmative Defenses on August 10, 2011. Thereafter, on August 25, 2011, Plaintiff brought the present Motion to Disqualify Defendants' Counsel for Conflict of Interest. Defendants responded on September 9, 2011, making this Motion ripe for the Court's consideration.
II. STANDARD FOR A MOTION TO DISQUALIFY COUNSEL
"Federal courts have inherent authority to supervise the conduct of attorneys appearing before them." Henry v. Del. River Joint Toll Bridge Comm'n, No. Civ.A.00-6415, 2001 WL 1003224, at *1 (E.D. Pa. Aug. 24, 2001). To guide such supervision, the United States District Court for the Eastern District of Pennsylvania has adopted the Pennsylvania Rules of Professional Conduct. See E.D. Pa. Civ. R. 83.6, Part IV(B). These Rules allow for disqualification of counsel as one of a court's available tools. Henry, 2001 WL 1003224, at *1. "Counsel may be disqualified if the Court determines, on the facts of the particular case, that disqualification is an appropriate means of enforcing the applicable disciplinary rule, given the ends that the disciplinary rule is designed to serve." Id. (quoting United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980)).
Even if a court finds that counsel violated the Pennsylvania Rules of Professional Conduct, however, disqualification is not mandatory. Jordan v. Phila. Hous. Auth., 337 F. Supp. 2d 666, 672 (E.D. Pa. 2004). Rather, it "is a matter committed to the sound discretion of the district court." Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). "To disqualify opposing counsel, the moving party must clearly show that continued representation would be impermissible." Reg'l Emp'rs Assur. Leagues Voluntary Emps.' Beneficiary Ass'n ex rel. PennMont Beneficiary Servs., Inc v. Castellano, No. Civ.A.03-6903, 2005 WL 856928, at *2 (E.D. Pa. Apr. 12, 2005) (citing Cohen v. Oasin, 844 F. Supp. 1065, 1067 (E.D. Pa. 1994)). "Disqualification is a harsh measure . . . generally disfavored by the court," and, as such, the court maintains an obligation to prevent its tactical use by the opposing party. Id. (citing Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200, 1203 (E.D. Pa. 1992)). When determining whether disqualification is appropriate, a court must also consider "countervailing policies, such as permitting a litigant to retain his chosen counsel and permitting attorneys to practice without excessive restrictions." Henry, 2001 WL 1003224, at *1. Although doubts regarding the existence of an ethical rule violation should be construed in favor of disqualification, the party seeking such an order bears the ultimate burden of showing that the representation is impermissible. James v. Teleflex, Inc., No. Civ.A.97-1206, 1999 WL 98559, at *3 (E.D. Pa. Feb. 24, 1999).
The current Motion before the Court seeks to preclude Attorney DiDomenicis from providing representation to both Defendants. Specifically, Plaintiff notes that Pennsylvania Rule of Professional Conduct 1.7(a)*fn1 prohibits joint representation where the representation of one client will be either directly adverse to another client or materially limited by the lawyer's responsibilities to another client. He goes on to argue that Pennsylvania law requires a government agency to indemnify an employee for judgments resulting from acts within the employee's scope of employment. In § 1983 cases brought against both the agency and the employee, this law creates a conflict of interest: on one hand, the government agency bears an interest in asserting that the employee's conduct was in defiance of policy; on the other hand, the employee maintains an interest in asserting that his conduct was aligned with normal agency practices. Because, as Plaintiff contends, the interests of a municipality and its employee as defendants in a § 1983 action are irreconcilably at odds, Mr. DiDomenicis cannot possibly represent both Defendant Officer Byrne and Defendant City of Chester in the present action.
As support for this argument, Plaintiff relies solely on the case of Dunton v. Cnty. of Suffolk, 729 F.2d 903, 907, amended on other grounds, 748 F.2d 69 (2d Cir. 1984). That matter involved a § 1983 action against a county and a county police officer who had physically assaulted a man whom the officer had found in a car with the officer's wife. Id. at 905. The county attorney represented both the county and the officer. Id. at 906. At trial, the attorney argued that the officer's actions were those of a man acting as a husband, not as an officer, and thus outside the scope of his employment. Id. Following a jury verdict against him, the defendant officer appealed on the grounds of improper representation. Id. The United States Court ...