Hernandez v. Guglielmo
2011 U.S. Dist. LEXIS 73962
D. Nev.2011Background
- Plaintiffs Hernandez and Evans allege FDCPA violations by Defendant Guglielmo & Associates.
- Defendant sent form collection letters in 2008 that allegedly failed to include required notice language under FDCPA §1692g(a)(3)-(a)(5).
- Defendant moves to disqualify Plaintiffs’ counsel Mitchell D. Gliner based on a no-interest loan/settlement payment made to Evans in the Discover Bank action.
- Gliner paid $3,809.12 to settle Evans’ Discover Bank action; Evans repaid most of the loan and the balance was later forgiven.
- There was a close personal friendship between Evans and Gliner, with multiple lawsuits involved; the court discusses potential class certification implications and sanctions short of disqualification.
- The court concludes Rule 1.8 violation occurred but disqualification is not required; if class certification is granted, the issue may be revisited with Evans potentially not serving as class representative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disqualification is warranted for Rule 1.8 violation | Gliner violated Rule 1.8 by funding a client | Disqualification is necessary to preserve ethical standards | Disqualification not required; sanctions only admonish. |
| Whether Evans can serve as class representative given Gliner’s relationship | Close friendship undermines adequacy as class representative | No automatic disqualification; depends on class certification | Not disqualified at this stage; revisitable if class certification is granted. |
Key Cases Cited
- Rubio v. BNSF Railway Co., 548 F. Supp. 2d 1220 (D.N.M. 2008) (loan advances raised conflict of interest and supported disqualification in some contexts)
- Shade v. Great Lakes Dredge & Dock Co., 72 F. Supp. 2d 518 (E.D. Pa. 1999) (disqualification not warranted when humanitarian benefits did not create serious conflict)
- London v. Wal-Mart Stores, Inc., 340 F.3d 1246 (11th Cir. 2003) (close ties between named plaintiff and counsel can impair adequacy of representation)
- Waldman v. Waldman, 118 A.D.2d 577, 499 N.Y.S.2d 184 (N.Y. App. Div. 1986) (court allowed conditional denial of disqualification if client reimbursed advances)
- In re K.A.H., 967 P.2d 91 (Alaska 1998) (Rule 1.8(e) advances prohibited; sanctions vary by context)
- Rebel Communications, LLC v. Virgin Valley Water Dist., 2011 WL 677308 (D. Nev. 2011) (disqualification is a drastic sanction; consider less onerous remedies)
- In-N-Out Burger v. In & Out Tire & Auto, Inc., 2008 WL 2937294 (D. Nev. 2008) (cautionary approach to disqualification; avoid misuse of motions)