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Former Client Can’t Disqualify Law Firm

A Charlottesville U.S. District Court Magistrate Judge denies plaintiff’s motion for removal of defense counsel which seeks to disqualify the law firm of Williams Mullen from representing defendant U.S. Bank National Association on the basis of an alleged conflict because the firm represented plaintiff in a previous legal matter.

Plaintiff filed this breach of contract action in the Fluvanna County Circuit Court challenging the 2012 foreclosure by U.S. Bank on his residential property in Columbia, Va. U.S. Bank removed the suit to federal court on Dec. 9, 2013. Plaintiff alleges that U.S. Bank, through Chase Home Finance LLC, mismanaged plaintiff’s mortgage loan and failed to give the proper 30-day notice as provided for in the deed of trust. U.S. Bank retained Williams Mullen on Nov. 5, 2013, to represent it in this action.

Plaintiff alleges a conflict because the firm represented him in 2006 on an easement issue concerning the same property in this action. He argues his complaint in the present action places at issue the value of the property, and that Williams Mullen’s representation of him in the past is sufficiently related to the value of the property so as to ethically disqualify the firm from defending U.S. Bank in this contract action. Billing records indicate Williams Mullen’s representation of plaintiff in the easement matter was terminated on Dec. 19, 2006. The two attorneys who assisted plaintiff in the easement matter both left the firm in October 2007.

Virginia ethics rules govern the professional conduct of attorneys in this district.

Rule 1.10(b) of the Virginia Rules of Professional Conduct operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The plain language of Rule 1.10(b) prohibits a law firm’s representation of a person or entity with materially adverse interests to a former client only if the matter is the same or substantially related to the matter in the previous representation and where present member of the firm possess confidential information material to the present matter. I find plaintiff’s claim for the firm’s disqualification fails on both prongs.

The prior easement matter and the present breach of contract matter are neither the same matter nor substantially related. While plaintiff asserts the easement issue concerned the same property foreclosed on in this breach of contract action, this connection alone is insufficient to disqualify the firm. Plaintiff has not shown how an easement controversy is related to whether U.S. Bank met its contractual obligations when foreclosing on the property. The firm’s previous representation of plaintiff occurred some seven years prior to the conduct alleged in the present complaint against U.S. Bank. Plaintiff does not identify any lawyer or group of lawyers in the firm who may have knowledge of him or the value of his property. I cannot find that these matters are “substantially related” under Rule 1.10(b)(1).

Even assuming the matters are substantially related, there is insufficient evidence that any present members of the law firm possess any confidential information material to the instant suit that may have been obtained in the handling of plaintiff’s prior easement matter. The departure of the lawyers who worked on the easement matter and the lack of relatedness between the nature of the matter suggests the risk of exposure to confidential information material to the present case is exceedingly low.

Motion for disqualification denied.

Foster v. U.S. Bank NA (Ballou) No. 3:13cv51, March 7, 2014; USDC at Charlottesville, Va. VLW 014-3-138, 4 pp.

VLW 014-3-138

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