Opinion
C.A. No. 06C-11-021 (JTV).
Submitted: February 16, 2007.
Decided: May 31, 2007.
Upon Consideration of Plaintiffs' Motion For Reconsideration DENIED.
Herbert W. Mondros, Esq., Margolis Edelstein, Wilmington, Delaware. Attorney for Plaintiffs.
Jeffrey A. Young, Esq., Young McNelis, Dover, Delaware. Attorney for Defendant Eggers.
Deborah J. Massaro, Esq., White Williams, Wilmington, Delaware. Attorney for Defendant Christiana Health Care System.
Patricia D. Murphy, Esq., Department of Justice, Wilmington, Delaware. Attorney for Defendant Silverman Meconi.
ORDER
Upon consideration of the plaintiffs' motion for reconsideration of the order granting appointment of counsel pursuant to 10 Del. C. § 3925, the defendants' opposition to the motion, and the record of the case, it appears that:
1. The plaintiffs filed a complaint against the defendants, Paula Eggers, individually and in her official capacity as Delaware State Epidemiologist in the Delaware Division of Public Health; Vincent Meconi, in his official capacity as Secretary of the Delaware Department of Health and Social Services; Paul Silverman in his official capacity as Junior Associate Deputy Director of Public Health; and Christiana Care Health System. Due to a conflict of interest between defendants Paula Eggers, Vincent Meconi, and Paul Silverman, the Department of Justice requested that private counsel be appointed for Ms. Eggers pursuant to 10 Del. C. § 3925 and Supreme Court Rule 68. The motion was granted and private counsel was appointed.
2. The plaintiffs have now filed this motion asking that the appointment of counsel be reconsidered and denied. They raise two arguments in support of their motion. The first is that the motion to appoint conflict counsel was untimely and, second, that the State should not pay for Ms. Eggers' counsel because her actions were outside the scope of her employment for the State.
3. Supreme Court Rule 68(a) provides, in pertinent part, that a state employee named as a defendant in a civil action for acts arising out of the employee's employment may petition for appointment of counsel. Rule 68(c) requires that such petitions be filed within ten days of service of the summons and complaint. In this case, however, the petition for appointment of counsel was filed by the Department of Justice under Supreme Court Rule 68(f), That section provides in pertinent part as follows:
Whenever the Department of Justice certifies to the appointing court that a conflict of interest exists, or may exist because of the appointment of a Department of Justice attorney, as a result of any statute or disciplinary rule under the Delaware Lawyers' Rules of Professional Conduct, the court may appoint an attorney from the private bar, if the court is satisfied that such conflict exists or may exist.
I find that the above-mentioned ten day time requirement does not apply to petitions filed by the Department of Justice under (f). Conflicts of interest may not be discovered or comprehended so soon after the employee is served. Therefore, the plaintiffs' first contention is rejected.
4. Turning to the second contention, I first observe that the plaintiffs' complaint sues Ms. Eggars not only individually, but in her capacity as a state employee. In addition, upon review of the record of the case, I remain persuaded that at least some of the acts complained of arise from her employment as a state employee. Therefore, the plaintiff's second contention is also rejected.
5. Therefore, the Motion to Reconsider Appointment of Conflict Counsel is denied .
IT IS SO ORDERED.