733 F.3d 647
6th Cir.2013Background
- Bowers, a former partner of The Ophthalmology Group, was expelled in March 2010 for bankruptcy and conduct deemed detrimental to the partnership.
- Bowers filed Title VII gender discrimination and retaliation claims and state-law claims in March 2012, and moved to disqualify opposing counsel (M&M Livingston PLLC, 'M&L').
- Bowers alleges two prior representations by M&L: (a) 2005 involvement in potential expulsion of a male partner; (b) 2008 counseling on forming Refractive Surgery of Louisville, PLLC.
- The district court granted summary judgment finding Bowers was a partner, thus not an employee under Title VII, and dismissed state-law claims without prejudice; disqualification was denied as moot.
- This appeal holds that M&L’s prior representation is substantially related to the current case, warrants disqualification, vacates the summary judgment, and remands for proceedings with instructions to disqualify M&L.
- The dissent would affirm summary judgment, finding no substantial relationship between the prior matters and the current discrimination claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether M&L’s prior representation of Bowers is substantially related to the current suit | Mowers seeks to protect confidential information; prior matters are substantially related. | Prior matters are not substantially related; differences in transactions predominate. | Yes; matters are substantially related; disqualification affirmed. |
| Whether the district court erred by granting summary judgment before ruling on disqualification | Disqualification should be resolved before dispositive motions. | Summary judgment stands independently of disqualification. | District court erred; vacate summary judgment and remand with disqualification on remand. |
Key Cases Cited
- Dana Corp. v. Blue Cross & Blue Shield Mut. of Northern Ohio, 900 F.2d 882 (6th Cir. 1990) (disqualification framework for prior attorney-client relationships)
- Koch v. Koch Indus., 798 F. Supp. 1525 (D. Kan. 1992) (substantial relationship test for confidential information)
- Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983) (substantial relationship due to information likely obtained)
- Weary v. Cochran, 377 F.3d 522 (6th Cir. 2004) (mixed question of employee status under common-law agency test)