Hanlin-Cooney v. Frederick Cnty.

ANNETTE HANLIN-COONEY, Plaintiff, v. FREDERICK COUNTY, MARYLAND et al., Defendants.

Civil Case No. WDQ-13-1731

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Dated: July 9, 2014

MEMORANDUM

Plaintiff Annette Hanlin-Cooney, individually and as personal representative of the estate of her deceased son, William John Hanlin, filed the instant lawsuit against Defendant Frederick County, MD ("Frederick County") and several others, including Frederick County Sheriff Charles Jenkins, Warden William V. DeLauter, and Correctional Officers David DeGrange and Robert Swailes (collectively "the Defendants").¹ Ms. Hanlin-Cooney's nine-count Complaint alleges tortious conduct and several violations of Mr. Hanlin's constitutional rights, stemming from Mr. Hanlin's suicide while an inmate at the Frederick County Adult Detention Center ("FCADC"). Now pending is the Defendants' Motion for Appropriate Relief, which has been referred to me for disposition. [ECF Nos. 30, 36]. I have considered Plaintiff's Response in Opposition [ECF No. 35] and the Defendants' Reply thereto. [ECF No. 38]. An evidentiary hearing was held on May 29, 2014, at which the Defendants adduced the evidence supporting their motion.² Although a continued hearing was scheduled to allow Plaintiff's witnesses totestify, for the reasons described below, I do not need to hear from Plaintiff's witnesses in order to rule in her favor. The Defendants' motion is DENIED.

I. BACKGROUND

This dispute arises from communications between Plaintiff's attorneys who work at the law firm of Bode & Grenier, LLP ("Bode & Grenier"), and Defendant David DeGrange. Bode & Grenier attorneys currently represent plaintiffs in three pending cases, including the instant lawsuit, where claims have been asserted against Frederick County for inmate suicides. See Fether v. Frederick Co. et al., No. 12-1674-CCB; Hosie v. Jenkins et al., 13-3033-JFM.³ Ms. Hanlin-Cooney commenced this lawsuit on June 14, 2013. See Compl., ECF No. 1. Most of the facts relevant to this motion are undisputed. To the extent that there are discrepancies between the facts presented by the Plaintiff and the Defendants, the Court has relied upon the facts as presented by the Defendants, as the moving party, for the limited purpose of adjudicating this motion.

Both parties acknowledge that at times before the filing of this suit, attorneys at Bode & Grenier communicated with Mr. DeGrange. Defs.' Mem. 11-15; Pl.'s Resp. 4-12. Mr. DeGrange was not represented by counsel during those communications. The communications between Mr. DeGrange and attorneys with Bode & Grenier began when Mr. DeGrange learned from a newspaper article that Bode & Grenier was representing the family of Ms. Valerie Miller, an inmate at FCADC who committed suicide. DeGrange Aff. ¶ 1. As a former correctional officer at FCADC, Mr. DeGrange reached out to Bode & Grenier to "give them some insight into some practices that [he] thought would improve conditions for the inmates and also make things better for the correctional officers at the Frederick County Adult Detention Center." Id. Mr.DeGrange initially spoke with a lawyer he identified as "Brett" from Bode & Grenier.⁴ DeGrange Aff. ¶ 2. Mr. DeGrange spoke with that lawyer several times. DeGrange Aff. ¶ 2. Mr. DeGrange was aware that Bode & Grenier was representing Plaintiff Hanlin-Cooney, but, at the time of the communications in question, no lawsuit had yet been filed. Id.

Mr. DeGrange's next contact with counsel from Bode & Grenier arose when Jacob C. Lebowitz, a Bode & Grenier attorney, contacted Mr. DeGrange to arrange a meeting for the purpose of signing a declaration that Mr. Lebowitz had drafted. Pl.'s Resp. 5. Mr. Lebowitz met Mr. DeGrange in Frederick, Maryland on June 24, 2011, and Mr. DeGrange signed the declaration. Id. The declaration described certain details surrounding the deaths of inmates Valerie Miller and William John Hanlin. Lebowitz Decl. Ex. A.

On July 3, 2012, William Cowden, Esq. and a private investigator from Bode & Grenier traveled to Frederick County to speak with witnesses, including Mr. DeGrange. Pl.'s Resp. 9; DeGrange Aff. ¶ 4. During that meeting, Mr. Cowden and Mr. DeGrange spoke about the suicide of Mr. Hanlin. DeGrange Aff. ¶¶ 4-7. Mr. Cowden attests that before any questioning began, he informed Mr. DeGrange that he worked for Bode & Grenier, and that the firm represented Mr. Hanlin's mother as well as several other plaintiffs in FCADC suicide cases. Cowden Decl. ¶ 6. Mr. Cowden states that he then asked Mr. DeGrange whether he was represented by counsel, to which Mr. DeGrange replied that he was not. Cowden Decl. ¶ 7.

Thereafter, Mr. DeGrange spoke with Mr. Cowden on several occasions. DeGrange Aff. ¶ 4. Mr. DeGrange felt that Mr. Cowden was his friend and "on [his] side from the beginning." Id. Although Mr. Cowden told Mr. DeGrange that he would be named in the lawsuit, Mr. Cowden also assured Mr. DeGrange that, "when they sue, they would be going after the County,and I [Mr. DeGrange] would be covered by the County's insurance". Id. at ¶ 3. Mr. DeGrange asked on multiple occasions whether the Plaintiff would be going after him. Id. Mr. Cowden repeatedly assured him that "they were not going to sue [him] personally." Id. When the lawsuit was ultimately filed, Mr. DeGrange "had no idea they were going to sue [him] personally for five million dollars and for punitive damages." Id. at ¶ 6.

On approximately the fourth or fifth occasion that Mr. DeGrange spoke with Mr. Cowden, they discussed a potential lawsuit Mr. DeGrange could bring for overtime pay at FCADC. Id. at ¶ 5. Mr. DeGrange thought Mr. Cowden "was trying to help [him]." Id. Mr. Cowden introduced Mr. DeGrange to other attorneys who handled those types of cases. Id.. At no point did Mr. DeGrange believe that the attorneys introduced by Mr. Cowden were also attorneys at Bode & Grenier, or were in any way connected to the instant lawsuit. (Partial Tr., 20:3-20:21).

Mr. Cowden reached out to Mr. DeGrange by telephone at least twice between July 3, 2012 and October 23, 2012 for the purpose of determining whether Mr. DeGrange had located a CD containing FCADC policies and procedures, and to clarify whether FCADC Correctional Officers were Deputy Sheriffs. Cowden Decl. ¶¶ 11-16. Mr. Cowden met with Mr. DeGrange in person on October 23, 2012, and Mr. DeGrange signed two additional declarations at that meeting. Cowden Decl. ¶ 16. The declarations outlined the role of correctional officers at FCADC and described Mr. DeGrange's account of the events surrounding Mr. Hanlin's suicide at the prison. Defs.' Mot. Ex. 5, A, D. Before the present action was filed on June 14, 2013, Mr. Cowden informed Mr. DeGrange that they could no longer communicate, and the two have not been in contact since that conversation. Cowden Decl. ¶¶ 18-19; DeGrange Aff. ¶ 9.

II. ANALYSIS

The Defendants allege that Plaintiff's counsel violated Rules 4.1, 4.3, 4.4, and 8.4 of the Maryland Rules of Professional Conduct ("MRPC").⁵ This district applies the Rules of Professional Conduct as they have been adopted by the Maryland Court of Appeals. Local Rule 704 (D. Md. 2011). The Defendants ask this Court to disqualify Plaintiff's counsel from representing Ms. Hanlin-Cooney, as sanctions for the alleged ethical breach. Defs.' Mot. 1-3. In the alternative, the Defendants ask that this Court sanction Plaintiff's counsel by precluding their use of any information obtained from Mr. DeGrange in this litigation, or by imposing other sanctions that this Court deems appropriate. Id.

"Disqualification is a drastic remedy since it deprives litigants of their right to freely choose their own counsel." Gross v. SES Americom, Inc., 307 F. Supp. 2d 719, 722 (D. Md. 2004). The movant bears the burden of proof and must "satisfy a high standard" that disqualification is warranted. Harris v. Keystone Ins. Co., No. CCB-13-2839, 2013 WL 6198160, at *2 (Nov. 26, 2013). "Disqualification at the urging of opposing counsel is permitted only "[w]here the conflict is such as clearly to call into question the fair and efficient administration of justice." Gross, 307 F. Supp. 2d at 723. In lieu of disqualification, the district court may fashion a less severe remedy. See Hudak v. I.R.S., MJG-11-1271, 2012 WL 6726705, at *5 (D. Md. Dec. 26, 2012).

A district court has the inherent power to impose sanctions. See United States v. Shaffer Equip. Co., 11 F.3d 450, 461-62 (4th Cir. 1993). This Court, as well as other courts within this Circuit, have held that a moving party must prove misconduct by clear and convincing evidence. See Glynn v. EDO Corp., JFM-07-1660, 2010 WL 3294347 (D. Md. Aug. 20, 2010) (stating that"proving misconduct occurred by clear and convincing evidence, as opposed to by a mere preponderance, certainly suffices.") (internal quotations omitted); see also Balcar v. Bell and Assoc., LLC, 295 F. Supp. 2d 635, 640-41 (N.D.W. Va. 2003) (finding that the court should require proving misconduct by clear and convincing evidence, in line with precedent from other circuits). The Fourth Circuit, sitting in a disciplinary hearing, applied a clear and convincing standard to violations arising under the New York Rules of Professional Conduct. In re Liotti, 667 F.3d 419, 423 (4th Cir. 2011). The Court derived that standard from the American Bar Association Standards for Imposing Lawyer Sanctions. See ABA Standards § 1.3. Likewise, the Maryland Rules require a court sitting as a disciplinary hearing to place upon the petitioner "the burden of proving the averments of the petition by clear and convincing evidence." Maryland Rules § 16-757. Therefore, I may only impose sanctions if the Defendants have established violations by clear and convincing evidence.

This decision is being rendered prior to the continued evidentiary hearing because, after presenting their evidence in full, the Defendants have not met their evidentiary burden that disqualification is warranted, or...