Summary
In Babineaux, a former government attorney for the City of Hammond, Louisiana, filed an employment discrimination lawsuit on behalf of a private litigant against the city and the mayor.
Summary of this case from Franklin v. ClarkOpinion
Civil Action No. 04-1679 Section I/5.
March 21, 2005
ORDER AND REASONS
Before the Court is a motion to disqualify plaintiff's counsel filed on behalf of defendants, the City of Hammond and Mayor Mayson Foster. Defendants argue that plaintiff's counsel, Douglas D. Brown, should be disqualified because his previous employment as an Assistant City Attorney for the City of Hammond creates a conflict of interest. After considering the law, the arguments of the parties, and the record, defendants' motion to disqualify is DENIED.
Rec. Doc. No. 4.
Background
Plaintiff, Tysonia Babineaux ("Babineaux"), was the City of Hammond's Recreation Director until she was dismissed in July 2003. In connection with her dismissal, she has sued the City of Hammond and Mayor Foster (collectively "the City") for violations of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000(e), and Louisiana's anti-employment discrimination statute.Babineaux retained attorney Douglas D. Brown to represent her in her employment discrimination lawsuit. Brown was an Assistant City Attorney for the City of Hammond during the administration of former Mayor Louis J. Tallo which ended on December 31, 2002, when the City's current mayor, defendant Mayson Foster, took office. Since leaving the Hammond City Attorney's office, Brown has entered private practice, representing a number of individuals in lawsuits against the City of Hammond.
Mayor Foster is being sued in his official capacity as Mayor of the City of Hammond.
Rec. Doc. No. 24.
The thrust of the City's motion to disqualify centers around an employment grievance filed by Babineaux in 2001, while Brown was an Assistant City Attorney for the City of Hammond. Specifically, the City alleges that (1) the subject matter of Babineaux's 2001 grievance is "similar in all material respects" to plaintiff's current allegations and (2) Brown presumably has knowledge of confidential information relating to the prior complaint. Therefore, the City argues that Louisiana law and the Louisiana Rules of Professional Conduct require Brown to withdraw from the case.
Rec. Doc. No. 18, exhibit A.
The City also argues that requiring Brown to withdraw from the case would not prejudice Babineaux.
Brown argues, on behalf of the plaintiff, that no conflict of interest exists because all of the events giving rise to the current allegations occurred after he left the Hammond City Attorney's office. Further, Brown claims that the City and the Mayor hold a grudge against him for "making a living suing his former client," and, that the defendants are only bringing this motion to disqualify him because of "secondary motives." Brown also points out that he has offered to amend Paragraph 35 of plaintiff's complaint to limit the temporal reach of the action to events occurring after he left the City Attorney's office. Finally, Brown argues that Babineaux's right to counsel of her choice should outweigh any relationship between this case and Babineaux's 2001 complaint.
Rec. Doc. No. 24.
On December 16, 2004, Brown voluntarily withdrew as Babineaux's counsel in response to the City's first urging this motion at a conference. Rec. Doc. No. 20. Although the Court granted plaintiff time to find substitute counsel, Babineaux was unsuccessful in finding another attorney and Brown withdrew his voluntary withdrawal. See Rec. Doc. No. 22.
Law and Analysis
I. Standard for Analyzing Disqualification Motions"[I]t is beyond dispute that lawyers are officers of the court and that the courts have the inherent authority to regulate their professional conduct." In re Gopman, 531 F.2d 262, 266 (5th Cir. 1976). In the Fifth Circuit, disqualification cases are governed by state and national ethical standards adopted by the court. FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1311-12 (5th Cir. 1995) (quoting In re American Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992)); In re Dresser Indus., Inc., 972 F.2d 540, 543 (5th Cir. 1992). The relevant standards include (1) the Local Rules for the Eastern District of Louisiana; (2) the American Bar Association's (ABA's) Model Rules of Professional Conduct; (3) the ABA's Model Code of Professional Responsibility; and (4) the state rules of conduct. See Horaist v. Doctor's Hosp. Of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001). The Eastern District of Louisiana has expressly adopted the State of Louisiana's Rules of Professional Conduct. L.R. 83.2.4E.
Local Rule 83.2.4E states:
This court hereby adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter may be amended from time to time by the Louisiana Supreme Court, except as otherwise provided by a specific rule or general order of a court.
U.S. District Courts in the Fifth Circuit and the Louisiana Supreme Court have explained that the burden of proof is on the party seeking the disqualification. See, e.g., Parker v. Rowan Companies, Inc., No. 03-CV-545, 2003 WL 22208569, at *8 (E.D. La. Sept. 23, 2003); Cramer v. Sabine Transp. Co., 141 F. Supp. 2d 727, 730 (S.D. Tex. 2001); Walker v. State Dep't of Transp. and Dev., 817 So. 2d 57, 60 (La. 2002) ("the burden of proving disqualification . . . rests on the party making the challenge").
II. Inapplicability of Louisiana Rule of Professional Conduct 1.9
The City bases much of this motion to disqualify on Louisiana Rule of Professional Conduct 1.9(a). The City argues that Rule 1.9 provides the governing principles underlying the propriety of a prospective legal representation adverse to a former client. Brown responds that Rule 1.9 is inapplicable to this case because he never "represented" the City of Hammond in relation to Babineaux's 2001 grievance.
Louisiana Rule 1.9(a) is identical to ABA Model Rule 1.9(a). Both Rules provide:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
Rec. Doc. No. 24.
Brown is correct that subsection (a) of Rule 1.9 is inapplicable to this case, but not because he did not represent the City of Hammond in 2001. Rather, because Brown is a former government attorney, any conflict with his former employer is governed by Rule 1.11.
Louisiana Rule 1.11 is identical to ABA Model Rule 1.11. Both state in pertinent part:
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
. . .
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.
A. ABA Formal Opinion 97-409
While the City is correct that Rule 1.9 generally governs conflicts of interest relating to former clients, the American Bar Association, in a Formal Ethics Opinion, has stated that subsections (a) and (b) of Rule 1.9 should be inapplicable to former government attorneys. See ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 409 (1997) (hereinafter "Formal Op. 409") ("The Committee concludes that Rule 1.11 alone determines the conflict of interest obligations of a former government lawyer, and that the provisions of Rule 1.9 (a) and (b) do not apply.") (emphasis added). The ABA's conclusion is bolstered by Official Comment 1 to the current version of ABA Model Rule 1.9, which states in pertinent part: "[c]urrent and former government lawyers must comply with this Rule to the extent required by Rule 1.11." Model Rules of Prof. Cond. Rule 1.9 cmt.1 (2004) (emphasis added).
While ABA Ethics Opinions are not binding on this Court, federal courts often look to them for guidance in interpreting the Model Rules of Professional Conduct. See Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., 144 F. Supp. 2d 1147, 1159 (D.S.D. 2001); see also United States v. Cavin, 39 F.3d 1299, 1309 n. 25 (5th Cir. 1994) (citing an ABA Formal Ethics Opinion with approval). The City does not cite ABA Formal Opinion 409 in its memorandum of law. Rather, in contending that Rule 1.9(a) applies to this case, it relies on an outdated version of the Louisiana Rules of Professional Conduct. In January, 2004, the Louisiana Supreme Court adopted a substantively new version of its ethical rules in connection with the ABA's well-publicized "Ethics 2000" revisions to the Model Rules.
Rec. Doc. No. 18. The City cites Rule 1.9, which prior to January, 2004 provided:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.
The current version of Rule 1.9 is located at footnote 10, supra.
In this case, the changes to the Louisiana Rules of Professional Conduct are significant. The current version of Louisiana Rule 1.11(a) expressly applies to a lawyer "who has previously served as a public officer or employee of the government." La. R. Prof. Cond. 1.11(a) (2005). Current Rule 1.11(a)(1) expressly subjects former government attorneys to Rule 1.9(c), but makes no mention of Rules 1.9(a) or (b). Id. This reference to Rule 1.9(c) did not exist in the previous version of the Rules. See La. R. Prof. Cond. 1.11(a) (2000). This Court finds the specific reference to subsection (c) of Rule 1.9, to the exclusion of the other subsections of 1.9, to be significant in the context of this case.
Because Rule 1.11(a) only refers to 1.9(c), this Court finds the ABA's reasoning that subsections (a) and (b) of Rule 1.9 do not apply to former government attorneys to be extremely persuasive. See Formal Op. 409; see also Cho v. Superior Court, 45 Cal. Rptr. 2d 863, 867 (Cal.Ct.App. 1995) ("Public attorneys moving to the private sector are treated separately under the American Bar Association's Model Rules of Professional Conduct, rule 1.11"). Furthermore, the traditional maxim of statutory construction "expressio unis est exclusio alterius," i.e. "the expression of one thing is the exclusion of others," supports the conclusion that Rule 1.11(a) applies in this case rather than Rule 1.9(a). See Copeland v. Comm'r of Internal Revenue, 290 F.3d 326, 334 (5th Cir. 2002).
The ABA Reporter's Explanation of Changes is also instructive. Explaining the change in comment 1 to Rule 1.9, the Reporter notes: "[t]he comment has also been amended to make the important point that Rule 1.11 now determines when Rule 1.9 is applicable to present and former government lawyers." Reporter's Explanation of Changes, available at http://www.abanet.org/cpr/e2k/10-85rem.pdf (last visited March 21, 2005). Further, the change in Rule 1.11(a) was intended to "[c]larify that [an] individual lawyer who formerly served as [a] public officer or government employee is subject only to this Rule [Rule 1.11] and not to Rule 1.9." Id. (emphasis in original). The Reporter goes on to explain that:
There has been disagreement whether individual lawyers who have served as government officials or employees are subject to Rule 1.9 regarding their obligations to former clients or whether their obligations under Rule 1.11(a) are exclusive. The question is an important one, for the individual lawyer, for the lawyer's firm, and for the government. The Commission decided that representation adverse to a former government client is better determined under Rule 1.11(a) . . . In order not to inhibit transfer of employment to and from the government, the Commission believes that disqualification resulting from representation adverse to the former government client should be limited to particular matters in which the lawyer participated personally and substantially. . . .Id. (emphasis added).
B. The Federal Courts' Interpretation of Rules 1.9 and 1.11
Notwithstanding the ABA's interpretation, few federal courts have squarely addressed the issue of whether Rule 1.9(a) applies to former government attorneys. In construing the Pennsylvania Rules of Professional Conduct, a federal district court recently concluded that former government attorneys are subject to Rule 1.9(a) in addition to Rule 1.11. See Jordan v. Philadelphia Hous. Auth., 337 F. Supp. 2d 666, 678 (E.D. Pa. 2004). The Jordan court relied on Wisdom v. Philadelphia Housing Authority, an unpublished decision in the same district, in support of its interpretation. See Wisdom v. Philadelphia Hous. Auth., No. 03-CV-4701, 2003 WL 303945, at *1 (E.D. Pa. Feb. 12, 2003). In a footnote, the Philadelphia Housing Authority court curiously noted that had the governmental agency chosen to pursue its motion to disqualify under Rule 1.11, instead of Rule 1.9, the court would have applied Rule 1.11. See id. at *1 n. 4. However, because the Housing Authority based its motion to disqualify its former in-house counsel on Rule 1.9, the court analyzed the disqualification issue pursuant to Rule 1.9. Id. The wisdom of the court's conclusion is questionable. Finally, the Jordan court did not address ABA Formal Opinion 409. As such, this Court finds the ABA's interpretation of Rules 1.9 and 1.11 more persuasive than the Jordan court's interpretation of the Pennsylvania Rules of Professional Conduct.
The Court notes that pursuant to the plain language of the current version of Rule 1.11, subsection (c) of Rule 1.9 is applicable to former government attorneys. However, while the City mentions 1.9(c), the City fails to cite any case where that subsection served as the basis for an attorney's disqualification. At least two federal district courts have suggested that Rule 1.9(c) does not provide an independent basis for disqualification. See Sykes v. Matter, 316 F. Supp. 2d 630, 636 (M.D. Tenn. 2004); Commonwealth Ins. Co. v. Stone Container Corp., No. 99-C-8471, 2002 WL 385559 (N.D. Ill. Mar. 12, 2002).
Because Rule 1.9 would require disqualification of former non-government attorneys who have formerly represented a client in any "substantially related" matter, regardless of the attorney's involvement, it imposes a higher ethical duty on attorneys exclusively engaged in private practice. See Formal Op. 409. On the other hand, Rule 1.11 requires a former government attorney to have "personally and substantially" participated in a previous "matter" which, therefore, requires a higher threshold for disqualification. See La. R. Prof. Cond. 1.11(a) (2005). If parties seeking to disqualify any opposing attorney (even former government counsel) could rely on Rule 1.9(a), it would render 1.11(a) "surplusage in adverse representations." Formal Op. 409. In other words, if the City is correct that 1.9(a) applies in cases like this one, no party seeking disqualification of a former government attorney would ever rely on Rule 1.11(a), considering that it provides a former government attorney substantially less chance of disqualification.
The City cites a Louisiana Supreme Court case where a current government attorney was disqualified pursuant to Rule 1.9 for previously representing a criminal defendant in a bankruptcy matter. See State v. Allen, 539 So. 2d 1232 (La. 1989). However, there is no dispute that Rule 1.9 applies to attorneys who move from private practice to government service. See La. R. Prof. Conduct 1.11(d) ("a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9. . . .")
The United States Supreme Court has noted that it is a "cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 449, 151 L. Ed. 2d 339 (2001). This Court, following the general rule of statutory construction, agrees with the ABA that accepting the City's interpretation of Rule 1.9 would render Rule 1.11 "superfluous."
In addition to the Pennsylvania federal courts, the United States Court of Veterans Appeals, in a case decided before the ABA Ethics 2000 revisions were adopted, also strictly construed Rule 1.9(a) and held that it applies to all attorneys, including former government lawyers. Violet v. Brown, 9 Vet. App. 530, 532 (Vet. App. 1996); c.f. Kelly v. Brown, 9 Vet. App. 37, 40 (Vet. App. 1996) (noting that Charles Wolfram, a prominent professor of Legal Ethics at Cornell Law School, believes that Rule 1.9 does not apply to former government attorneys). Of course, decisions of the Court of Veterans Appeals do not bind this Court. Regardless, in view of the plain language of revised Rules 1.9 and 1.11 and the sound reasoning of ABA Formal Op. 409, this Court finds the Violet court's reasoning to be unpersuasive.
C. Policy Considerations
ABA Model Rule 1.11 was intended to "deal with the problems peculiar to government service." Formal Op. 409. Although the Louisiana version of Rule 1.11 does not include official comments, this Court finds the ABA comments to Model Rule 1.11 persuasive. In particular, comment 4 to Rule 1.11 states the reasons behind the more lenient standard for former government lawyers:
[T]he rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially.
Model Rules of Prof. Conduct R. 1.11 cmt.4 (2004). Governments need and want good young lawyers to devote some time to public service without depriving themselves of the ability to obtain employment thereafter. See Barnes ex rel. Estate of Barnes v. District of Columbia, 266 F. Supp. 2d 138, 141 (D.D.C. 2003).
For the above reasons, this Court finds that Rule 1.11, and not Rule 1.9(a) or (c), applies to this case. The City, however, does not solely rely on Rule 1.9 in its motion to disqualify Brown. It also argues that Rule 1.11 requires disqualification because Brown was "personally and arguably substantially involved as counsel for Mayor Tallo" in connection with the 2001 grievance.
The City purports to quote subsections (a) and (b) of Louisiana Rule 1.11. However, the provision the City quotes as subsection (b) is now actually subsection (c). See La. R. Prof'l. Cond. 1.11(c) (2005). Based on the 2004 revisions to 1.11, subsection (b) is inapplicable to this case because it involves imputed conflicts in a law firm setting. This Court will treat the City's motion as being made pursuant to Rule 1.11(a) and (c) of the current Rule.
III. Applying Rule 1.11
The current version of Louisiana Rule of Professional Conduct 1.11(a) and (c) requires the party moving for disqualification to show either that the former government attorney participated "personally and substantially" in a previous "matter" or that the attorney actually possesses confidential government information. See La. R. Prof. Cond. 1.11(a), (c), and (e).
La. R. Prof. Cond. 1.11(e) defines the term "matter" to include: "(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties. . . ."
A. Personal and Substantial Involvement
Neither the Fifth Circuit nor the Louisiana Supreme Court has clearly defined what constitutes "personal and substantial" participation in a previous matter. However, the Fifth Circuit has suggested that if a lawyer is only "tenuously and nominally" connected to the prior case, the personal and substantial requirement is not met. See Hernandez v. Johnson, 108 F.3d 554, 560 (5th Cir. 1997). A Wisconsin federal district court has explained that a former government lawyer substantially participates in a case where the lawyer's involvement was of significance to the matter, or sufficient to create a "reasonable appearance of such significance." United States v. Clark, 333 F. Supp. 2d 789, 794 (E.D. Wis. 2004). Personal and substantial involvement can be created through "decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise." Id. In a Formal Ethics Opinion addressing Rule 1.11's predecessor, DR 9-101(B), the ABA stated that:
In Clark, the government brought a motion to disqualify a former Assistant United States Attorney based on a federal criminal statute prohibiting former government attorneys from undertaking certain private representations. While the Court did not directly address the language in ABA Model Rule 1.11, the criminal statute at issue in Clark prohibited representation in which "the person participated personally and substantially as such officer or employee." 18 U.S.C. § 207(a)(1)(B). This language mirrors Rule 1.11, which forbids a former government attorney from representing a client "in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee." ABA Model Rule 1.11(a) (2).
'substantial responsibility' envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question. ABA Formal Ethics Op. 342 (1975) (addressing Disciplinary Rule 9-101(B)). With these guidelines in mind, the Court turns to the City's arguments.
The Court notes that although the predecessor to Rule 1.11 spoke in terms of "substantial responsibility," the current Rule speaks of personal and substantial "participation." Notwithstanding the difference in verbiage, this historical reference places the current Rule in perspective.
The City contends that Brown should be disqualified pursuant to Rule 1.11 for two reasons. First, the City argues that Brown was "personally and substantially" involved in Babineaux's 2001 grievance. Second, the City argues that Brown was privy to confidential information in connection with the 2001 grievance. Specifically, the City claims that Mayor Tallo copied Brown on a "confidential" response to Babineaux's complaint. The City also argues that, based on Brown's receipt of this response letter, "it can be presumed that other confidential information transpired during Brown's representation of the City of Hammond."
Rec. Doc. No. 18.
In United States v. Clark, the district court disqualified a former Assistant United States Attorney from representing a criminal defendant where the attorney (1) was currently defending a client on the same charge that he was previously assigned to prosecute; (2) had received and reviewed investigative reports in connection with the prosecution; and (3) had previously discussed the matter with the head law enforcement agent in charge of the investigation and arrest. Clark, 333 F. Supp. 2d at 794. In United States v. Phillip Morris, Inc., 312 F. Supp. 2d 27 (D.D.C. 2004), the district court disqualified a former Food and Drug Administration attorney from representing a tobacco company after the government produced timesheets indicating that the attorney had logged 382 hours on substantially-related litigation. Phillip Morris, 312 F. Supp. 2d at 39-40.
Neither Clark nor Phillip Morris is analogous to this case. There is no evidence that Brown conducted any investigation in connection with the 2001 complaint. There is also no evidence that Brown spent any substantial amount of time on the matter. While Brown does not dispute receiving the two letters in connection with the 2001 matter, he has submitted a declaration that he does not recall receiving the letters. Further, Brown has stated, under penalty of perjury, that any involvement he did have in the 2001 matter was limited to being copied on those two letters. In other words, he avers that he did not participate in any investigation in connection with Babineaux's 2001 claim, nor did he render legal advice to then-Mayor Tallo. The City has not submitted any evidence that questions the validity of these statements.
Rec. Doc. No. 24, exhibit 5.
"Professional ethics are self-enforcing, and lawyers are entitled to the presumption of being ethical, until the contrary is shown in specific instances." Wallace on Behalf of Northeast Util. v. Fox, 7 F. Supp. 2d 132, 137 (D. Conn. 1998). Therefore, this Court finds that Brown's cursory involvement in the 2001 matter does not rise to the level of "personal and substantial" participation in a matter which would require his disqualification pursuant to Rule 1.11.
B. Possession of Confidential Information
Even if Brown did not "personally and substantially participate" in the 2001 matter, Rule 1.11(c) requires disqualification if he possesses information he knows to be confidential and that information could be used to the material disadvantage of his former client. La. R. Prof. Cond. 1.11(c). "Confidential government information" is defined in Louisiana Rule 1.11 as "information that has been obtained under governmental authority and which, at the time [the] Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public." La. R. Prof. Cond. 1.11(c). Comment 8 to ABA Model Rule 1.11 states that Rule 1.11(c) only operates "when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer." Model Rules of Prof. Cond. Rule 1.11 cmt.8 (2004).
The City does not contend that Brown possesses any specific confidential information beyond the information contained in the two letters on which Brown was copied. Rather, the City contends that "it can be presumed that other confidential communications transpired" during Brown's 2001 representation of the City of Hammond. Considering all of the evidence submitted, this Court finds that Brown does not possess confidential government information that could be used to the material disadvantage of the City. Consequently, the Court finds that the City has not carried its burden in showing that Brown personally and substantially participated in the 2001 grievance or possesses confidential information, and, therefore, Brown should not be disqualified pursuant to Rule 1.11.
Brown has repeatedly stated that in connection with his representation of Babineaux, he does not intend to use against the City any of the scant factual information contained in the two letters.
Rec. Doc. No. 18.
IV. Inapplicability of Louisiana Revised Statute 42:1121(C)
Louisiana Revised Statute 42:1121(C) sets forth a revolving door law which generally prevents legal entities from profiting from the connections of their employees by prohibiting former government employees from assisting another for compensation in a matter in which they participated as a public servant for a period of two years. See, e.g., Fulda v. State, 668 So. 2d 1381, 1384-85 (La.App. 1st Cir.) (recognizing purpose of 42:1121(B) as preventing former public employees from gaining personal benefit through contracts with their former public employers), rev'd by Fulda v. Louisiana Office of Public Health, 673 So. 2d 201 (La. 1996). Louisiana Revised Statute 42:1121(C) provides:
La.R.S. 1121 is part of the Louisiana Code of Governmental Ethics. See La.R.S. 42:1101 et seq (2005).
No legal entity in which a former public servant is an officer, director, trustee, partner, or employee shall, for a period of two years following the termination of his public service, assist another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which such public servant at any time participated during his public service and involving the agency by which he was formerly employed or in which he formerly held office.
Assuming that La.R.S. 42:1121(C) applies to individual lawyers, Brown's employment with the City of Hammond ended on December 31, 2002. See Midboe v. Comm'n on Ethics for Public Employees, 646 So. 2d 351 (La. 1996) ("The ethics code provisions act on attorneys in their primary role as citizens. An attorney who is a public official or employee is subject to the Rules of Professional Conduct, as well as the ethics code which applies to all public servants, as long as the ethics code provisions do not impede or frustrate [the Louisiana Supreme Court's] authority to regulate the practice of law"). Therefore, the City argues that Brown's "continued representation of Ms. Babineaux clearly contravenes the ethical standards imposed upon former public servants under 42:1121 — at least until January 1, 2005."
La.R.S. 42:1121(C) prohibits a "legal entity" from assisting another person in a transaction. While the statute defines "person" to mean "an individual or legal entity other than a governmental agency, or an agency thereof," the statute does not define "legal entity." See La.R.S. 42:1101(16). By definition, a legal entity is a person; however, a legal entity is not necessarily an individual. Accordingly, the Court presumes for the purpose of La.R.S. 42:1121(C) that the term legal entity includes an individual person.
The Court agrees with the City that Brown's representation of Ms. Babineaux no longer presents an ethical dilemma since two years have passed. However, Brown commenced his representation of Babineaux within two years of his public service.
There is a dearth of case law on La.R.S. 42:1121(C). This Court has been unable to find any case which defined "participation" for the purpose of prohibiting a lawyer from undertaking a representation.
In Midboe v. Comm'n on Ethics for Pub. Employees, 646 So. 2d 351, 353-54 (La. 1996), abrogated on other grounds, Transit Mgmt. of Southeast Louisiana, Inc. v. Comm'n on Ethics for Pub. Employees, 703 So. 2d 576 (La. 1997), the only case cited by the City in support of its argument, the Louisiana Supreme Court merely held that the statute was constitutional. Midboe, 703 So. 2d at 360. Midboe involved a declaratory judgment filed with respect to the statute's constitutionality; it did not involve a motion to disqualify counsel. Id.
Brown's employment with the City of Hammond ended on December 31, 2002. Rec. Doc. No. 18. Babineaux's complaint was filed on June 16, 2004. Rec. Doc. No. 1.
The Court concludes that Brown's limited involvement with Babineaux's 2001 complaint does not constitute "participation" within the meaning of the statute. La.R.S. 42:1101 states that "'[p]articipate' means to take part in or to have or share responsibility for action of a governmental entity or a proceeding, personally, as a public servant of the governmental entity, through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or the failure to act or perform a duty." La.R.S. 42:1101(15). The fact that Brown was carbon copied on correspondence with respect to Babineaux's 2001 complaint does not rise to the level of personal participation necessary to trigger 42:1121(C)'s two-year prohibition. See id at 42:1101(15). As previously discussed, the City bears the burden of proof on this motion to disqualify. Based on the facts of this case, the Court finds that the City has failed to establish that Brown personally participated in a related transaction when he worked for the City of Hammond which would bar him from undertaking Babineaux's representation.
Conclusion
For the above and foregoing reasons, defendants' motion to disqualify Attorney Douglas Brown is DENIED.