Opinion
No. 03-3007
March 5, 2003
ORDER
This matter comes before the Court on the Plaintiffs' Motion to Disqualify Counsel for Defendants. For the reasons set forth below, the motion is denied.
Plaintiffs have alleged claims against the City of Springfield (City) and six individuals (Individual Defendants) who are, or were, officials or employees of the City. The Plaintiffs bring their claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983. Plaintiffs have named the Individual Defendants in their individual and official capacities. The City's Corporation Counsel represents all of the Defendants.
The Plaintiffs move to disqualify the Corporation Counsel from representing the Individual Defendants in both their individual and official capacities. An official capacity lawsuit against a municipal employee or official is a lawsuit against the municipality itself. Kentucky v. Graham, 473 U.S. 159, 165 (1985). The Plaintiffs argue that a conflict of interest exists between the City and the Individual Defendants in their individual capacities.
The Plaintiffs identify several possible conflicts between the City and the Individual Defendants. For example, the City may wish to avoid liability by arguing that an Individual Defendant acted outside the scope of his employment. See Dunton v. Suffolk County, State of N. Y., 729 F.2d 903, 907 (2nd Cir. 1984). An Individual Defendant may wish to concede that he violated one or more of the Plaintiffs' constitutional rights, but is entitled to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Such a defense would absolve the Individual Defendant of any liability, but could expose the City to liability because a municipality cannot raise qualified immunity as a defense. Board of County Com'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 436 (1997).
The Court agrees that potential conflicts exist, but disqualification of a party's counsel of choice is a drastic remedy that will only be imposed if an actual conflict exists. Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th Cir. 1982); Guillen v. City of Chicago, 956 F. Supp. 1416, 1420-21 (N.D.Ill. 1997). The movants must demonstrate that an actual conflict exists. Id. at 1421. The Plaintiffs have not met this burden. They have identified only potential conflicts of interest, not actual conflicts. The cases cited by the Plaintiffs concerned factual situations where actual conflicts existed. See Dunton, 729 F.2d at 907; In re LaPinska, 72 Ill.2d 461,381 N.E.2d 700, 703 (1978); Ivy v. Illinois State Police, 263 Ill. App.3d 12,636 N.E.2d 738 (1994); Illinois Mun. League Risk Management Ass'n v. Siebert, 223 Ill. App.3d 864, 585 N.E.2d 1130 (1992). No evidence of an actual conflict exists in this case at this time.
The motion is therefore denied.
The Court, however, recognizes that potential for conflicts of interest exist in this case. The Individual Defendants have submitted waivers in which each states that he or she has been informed of the potential conflicts and that the Corporation Council has agreed to monitor potential or actual conflicts of interest and to bring such conflicts to the attention of each Individual Defendant during the course of this litigation. These waivers are sufficient at this time to allow the Corporation Counsel to continue to represent the Individual Defendants.
The Corporation Counsel should also explain to both the Individual Defendants and the City that if an actual conflict arises, the Corporation Counsel may (depending on the circumstances) be required to withdraw from representing any party, including the City. At this time, however, no actual conflict exists.
THEREFORE, the Plaintiffs' Motion to Disqualify Counsel for Defendants (d/e 12) is DENIED.
IT IS THEREFORE SO ORDERED.