DAVID F. KALETA, Plaintiff,
VINNY CLAUSI, STEPHEN BRIDY and COUNTY OF NORTHUMBERLAND, Defendants.
MEMORANDUM OPINION AND ORDER
MARTIN C. CARLSON, Magistrate Judge.
Now pending in this action is the defendants' motion to disqualify the plaintiff's lawyers from representing him in this action, based upon asserted violations of the Pennsylvania Rules of Professional Conduct. The motion has been fully briefed, and a hearing was held on the motion on February 5, 2013. For the reasons that follow, the motion will be denied.
II. BACKGROUND AND STATEMENT OF THE CASE
A. Overview of the Plaintiff's Claims in this Litigation
The plaintiff in this action, David Kaleta, initiated the above-captioned litigation against Northumberland County (the "County") and two of its Commissioners, Vincent Clausi and Stephen Bridy, on September 17, 2012, in the Northumberland County Court of Common Pleas. After the plaintiff prevailed on a motion for preliminary injunctive relief before the Court of Common Pleas, the defendants retained new counsel, who on October 3, 2012, promptly moved to remove the action to this court pursuant to 28 U.S.C. §§ 1441 and 1331. (Doc. 1.)
In a nutshell, the plaintiff's complaint alleges that the defendants violated the First Amendment of the United States Constitution, and Pennsylvania's Sunshine Act, when they flatly denied his request to access a 6, 500 acre area known as the Anthracite Outdoor Adventure Area ("AOAA"), which the County Commissioners are in the process of developing into a recreational park. The AOAA is an area of land that has been used for years by off-road vehicle enthusiasts and other individuals, after being largely abandoned by the coal mining industry. The plaintiff has been actively involved for more than a decade in efforts to enhance the area environmentally, through planting over 40, 000 trees, and working to develop wildlife habitats. The plaintiff has received public recognition and commendation for his efforts, including being granted a statewide award. During this time, the plaintiff appears also to have regularly accessed the land that makes up the AOAA.
In July 2011, the plaintiff executed a waiver of liability form that was requested by the County's Planning Department head, Patrick Mack, in order to lawfully access the AOAA. After signing this waiver, the plaintiff continued regularly to access the AOAA land, while at the same time he became increasingly vocal in various forums about the approach that the County was taking with respect to the development of the AOAA. According to Mack, the plaintiff's public statements created a tense relationship between the plaintiff and the County, and with the Chairman of the Board of Commissioners, Vinny Clausi.
The following summer, in August 2012, it appears that these tensions between the plaintiff and some County representatives came to a head. During this time, the plaintiff submitted another waiver form for individual access to the AOAA, which was provided to Patrick Mack, the Planning Department head. Mack consulted with Commissioner Clausi about the plaintiff's request to access the AOAA, and the decision was thereafter made to deny the plaintiff's request. A letter from Mack to the plaintiff represented that two of the County's three Commissioners had decided not to accept the plaintiff's waiver, thereby effectively preventing the plaintiff from accessing and using the AOAA, as he had done previously.
The plaintiff claims in this lawsuit that the County's actions entirely to deny his request to access the AOAA, through two of its Commissioners, in private, violated Pennsylvania's Sunshine Act, 65 Pa. Cons. Stat. Ann. §§ 701 et seq., which generally guarantees the right of the public to be present at meetings of government agencies, and "to witness the deliberation, policy formulation and decisionmaking of agencies" which is deemed "vital to the enhancement and proper functioning of the democratic process...." 65 Pa. Cons. Stat. Ann. § 702(a). The Act further establishes the public policy of the Commonwealth to ensure the right of citizens to have notice of and the right to attend meetings of agencies at which agency business is discussed or acted upon. Id . § 702(b). In order to implement these overarching policies, the Act requires that "[o]fficial actions and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public...." Id . § 704. In this case, the plaintiff contends that the defendants violated the Sunshine Act by undertaking official County action or business - namely, considering and denying his request for access to the AOAA - in private and outside of a public meeting.
The plaintiff also claims that the County's actions, through two of its three Commissioners, constituted violations of the First Amendment, both as a prior restraint on public speech, and as retaliation for the plaintiff's exercise of protected First Amendment activity through his public criticism of the Commissioners.
Now pending in this action is the defendants' motion for entry of an order disqualifying the plaintiff's lawyers, Kymberly L. Best and David A. Bowers, from representing the plaintiff in this action, on the grounds that counsel were formerly employed by Northumberland County in legal and administrative capacities, and represented the county in litigation and other legal matters, including early matters involving the creation of the AOAA, thereby giving rise to an impermissible conflict of interest in the instant lawsuit. The defendants claim that counsel's representation of Kaleta runs afoul of Rules 1.6, 1.9, and 1.11 of the Pennsylvania Rules of Professional Conduct, and requires disqualification.
For their part, the plaintiff's counsel maintain that the cited rules of professional conduct are inapplicable to the situation presented in this case, and argue further that there is no basis for disqualification under the facts of this case, which involve claims for conduct that occurred long after counsel ceased working for the County, events that are temporally and topically far removed from the events at issue in this lawsuit, and which in no way can be considered to be substantially related to the legal services the lawyers rendered while employed or retained by the County.
The motion to disqualify counsel is fully briefed and ripe for disposition. We held oral argument on the motion on February 5, 2013, during which Kaleta's counsel addressed the court directly in order to respond to, and thoroughly deny, the defendants' allegations and suspicions regarding the nature of their past representation of Northumberland County and County Commissioner Vincent Clausi, and the impact of that representation upon the claims at issue in this case. Upon consideration of the briefs, the affidavits submitted in support of the motion, the parties' respective arguments, and counsel's representations to the court regarding their past representation and its relationship to the instant litigation, the defendants' motion to disqualify will be denied.
B. Counsel's Professional Relationship With Northumberland County
The plaintiff is represented in this litigation by two lawyers, Kymberly L. Best and Timothy A. Bowers. Ms. Best currently maintains a law practice in Sunbury, Pennsylvania, and Mr. Bowers has a separate law practice in Danville, Pennsylvania. Previously, both of these lawyers worked in different capacities for Northumberland County.
On or around September 15, 2009, Ms. Best began her employment with the County as an Assistant Solicitor. Subsequently, Ms. Best was also employed in the capacity as Chief Clerk, and she continued to work in both of these roles until March 18, 2011, when her employment with Northumberland County ceased.
Mr. Bowers was hired as County Solicitor on April 29, 2010. He left this position just a little over four months later on September 3, 2010, in order to run, unsuccessfully, for local public office. Following the termination of his brief employment with Northumberland County, Bowers continued to be retained by the County as outside counsel in certain ongoing legal engagements, including a condemnation proceeding involving a 32-acre parcel of land situated within the 6, 500 acres that comprise the AOAA site. Additionally, Bowers continued to assist the County in connection with two real estate tax assessment appeals in other parts of the County, and in litigation involving certain Sheriff's deputies. Lastly, Bowers represented that he was tasked with speaking for the County at a single public meeting regarding the County's authority to impose use restrictions within the AOAA.
The defendants now contend that Bowers and Best should be disqualified from representing the plaintiff, David Kaleta, on the grounds that these lawyers' past professional relationship with the County gives rise to a substantial conflict of interest that compels disqualification. The defendants have provided affidavits from certain County officials in support for the defendants' assertion that the nature of the legal representation that Best and Bowers provided to the County or its commissioners or employees one or more years prior to the initiation of this lawsuit now requires disqualification. None of these affiants attended the hearing on the motion.
In addition, the defendants rely largely on suggestion that during counsel's legal service to the County, they must have become privy to confidential information that alone should warrant disqualification; in addition, the defendants assert that Best and Bowers are now attacking the very policies that they helped to formulate with respect to the creation and use of the AOAA. The defendants thus insist that disqualification of counsel is compelled because their representation of Kaleta in this action, against counsel's former clients, is "substantially related" to counsel's past representation of the County and its Commissioners.
In response, during the hearing held on the motion, Best and Bowers responded directly to questioning from the court, and to arguments of opposing counsel, in unequivocally denying that their past representation created an impermissible conflict; clarifying that their past representation of the County and Clausi was entirely distinct from the instant dispute involving Kaleta; and in assuring the court that nothing that the lawyers may have learned during their past representation of Northumberland County or Clausi gives rise to a conflict, ...