UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JEROME P. GENOVA, )

)

Plaintiff, )

)

vs. ) 12 C 3105

)

ERIC KELLOGG, JOSEPH LETKE, )

LETKE & ASSOCIATES, INC., and )

the CITY OF HARVEY, )

)

Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Now before the Court is Defendants Eric Kellogg’s (“Kellogg”) and the City of

Harvey’s (“Harvey”) (together “ Defendants”) motion to disqualify Plaintiff’s counsel

under Northern District of Illinois Local Rules 83.51.9(a) (“Rule 1.9(a)”). For the

following reasons, the motion is granted.

BACKGROUND

From April of 2003 until June 16, 2011, attorney Eydie R. Glassman

(“Glassman”) represented Harvey, an Illinois municipality, its mayor, officers, elected

officials, or employees in over sixty civil cases while with the law firm Johnson & Bell,

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Ltd (“J&B”). The vast majority of these cases called for Glassman to defend against

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claims brought under 42 U.S.C. § 1983 (“section 1983”) arising from allegations of

police misconduct and corrupt hiring practices. Glassman leftJ&B in July 2012 to open

her own law practice and has not represented Harvey or any of its officers or employees

since that time.

On April 26, 2012, Plaintiff Jerome Genova (“Genova”) filed a claim under

section 1983 against Harvey; Kellogg, Harvey’s mayor; Joseph Letke (“Letke”),

Harvey’s comptroller; and Letke & Associates, Inc. (“L&A”), Genova’s former

employer and the accounting firm which Letke served as president. The complaint

alleges that Genova and his wife were supporters of Kellogg’s opponent during the

1999 and 2003 Harvey mayoral elections, that Kellogg threatened to remove Letke from

his position as comptroller unless he fired Genova from L&A, and that Letke

succumbed to Kellogg’s threats by discharging Genova on April 29, 2010. On August

11, 2012, Glassman filed her appearance with the Court as Genova’s attorney. Prior to

appearing in this matter, Glassman atteststhatshe conducted a conflict of interest check

by reviewing court records and her own case files to ensure that no conflict existed in

Although Glassman claims that her last representation of Harvey ceased in April of 2012, 1

the Court’s review of PACER records indicates that she remained as counsel for Harvey and two

police officers in Hobby v. P.O. Waltz, No. 11-cv-1064, until the case was dismissed on June 16,

2011.

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this matter. Satisfied that none existed, Glassman proceeded to represent Genova in this

matter.

On September 7, 2012, Defendants’ counselsent a letter to Glassman demanding

that she withdraw from this matter in light of her continuing duties of loyalty and

confidentiality to the Defendants. Glassman refused to do so, denying that her prior

representation of the Defendants imparted any confidential information relevant to this

matter. The Defendants now bring the instant motion, and with the parties having fully

briefed their arguments, we proceed to decide whether disqualification is appropriate.

LEGAL STANDARD

When considering a motion to disqualify counsel, courts must strike a balance

between two important values: “the sacrosanct privacy of the attorney-client

relationship (and the professional integrity implicated by that relationship) and the

prerogative of a party to proceed with counsel of its choice.” Schiessle v. Stephens, 717

F.2d 417, 419-20 (7th Cir. 1983). Disqualification is a “drastic measure,” a remedy that

is appropriate only when “absolutely necessary.” Id. at 420. The moving party bears

the burden of showing facts warranting disqualification. Van Jackson v. Check ‘N Go

of Ill., 114 F. Supp. 2d 731, 732 (N.D. Ill. 2000). Nevertheless, doubts as to the

existence of a conflict must be resolved in favor of disqualification. Id. (citing United

States v. Goot, 894 F.2d 231, 235 (7th Cir. 1990)).

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DISCUSSION

The Defendants urge the Court to disqualify Glassman from this matter because

the factual circumstances underlying Genova’s claim are sufficiently similar to claims

that Glassman defended against on behalf of the Defendants. Genova responds that the

Defendants have not met their burden in establishing a conflict of interest. Rule 1.9,

adopted from the Model American Bar Association Model Rules of Professional

Conduct, governs whether a conflict of interest with a former client precludes an

attorney from representing another client. Rule 1.9(a) provides:

A lawyer who has formerly represented a client in a matter shall not

thereafter represent another person in the same or a substantially related

matter in which the person’s interests are materially adverse to the

interests of the former client unless the former client consents after

disclosure.

There is no dispute that Genova’sinterests are adverse to those of the Defendants

and that the Defendants have not consented to Glassman’s representation of Genova.

The propriety of Glassman’s representation therefore depends on whether Genova’s

claim against the Defendants is “substantially related” to her prior representation of the

Defendants.

In determining whether two cases are “substantially related,” the Court considers

“whether it could reasonably be said that during the former representation the attorney

might have acquired information related to the subject matter of the subsequent

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representation.” LaSalle Nat’l Bank v. Lake Cnty., 703 F.2d 252, 255 (7th Cir. 1983).

The following three-step inquiry guides our analysis on this question:

First, the trial judge must make a factual reconstruction of the scope of the

prior legal representation. Second, it must be determined whether it is

reasonable to infer that the confidential information allegedly given would

have been given to a lawyer representing a client in those matters. Third,

it must be determined whether that information is relevant to the issues

raised in the litigation pending against the former client.

Id. at 255-56.

The Defendants cite three cases with similar circumstances as the instant action

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in which Glassman acted as their attorney. In the three cases, brought in 2006 and

2007, the Defendants were sued for Kellogg’s alleged hiring, disciplining or termination

of police officers based solely on the officers’ political allegiance to him. All three

cases eventually settled and were dismissed pursuant to Federal Rule of Civil Procedure

41. In light of the factual allegations giving rise to the three actions coupled with

Glassman’s representation of the Defendants in those actions, the Court finds it

reasonable to infer that Glassman learned of confidential information pertaining to

Harvey’s employment practices and Kellogg’s use of political power as a means to

affect Harvey’s employment practices.

 Glassman represented the Defendants in Sutton v. City of Harvey, Case No. 06-cv-1365; 2

Loggins v. City of Harvey, Case No. 06-cv-3248; and Mason v. Kellogg, Case No. 07-cv-1809.

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Glassman responds in her brief and affidavit that she never actually learned of

any confidential information that would be prejudicial to the Defendants in this matter.

Glassman may well be correct. However, our inquiry does not turn on whether

confidential information was in fact exchanged. Rather, the appropriate focus is

whether “the lawyer could have obtained confidential information in the first

representation that would have been relevant in the second.” Analytica, Inc. v. NPD

Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983) (emphasis added). Whether

Glassman actually learned of confidential information pertaining to the Defendants is

irrelevant to our determination. Id. at 1267.

Finally, as in the prior actions, the focus of Genova’s action is centered on

Kellogg’s alleged political corruption. Genova claims that Kellogg leveraged his

political power to have him fired for supporting Kellogg’s erstwhile political rival. As

was the case in the prior three actions, allegations of Kellogg improperly using his

political power to have persons hired or fired serve as a necessary predicate to Genova’s

claim. Furthermore, it is reasonable to infer that Glassman’s prior representation

informed her of Kellogg’s modus operandi with respect to his use of clout to make

hiring and firing decisions. In light of the similarities in the circumstances underlying

the instant claim and the three prior actions, the Court finds that the confidential

information likely to have been shared with Glassman during her representation of the

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Defendants is relevant to the instant claim. Accordingly, the Court concludes that

Glassman’s current representation is substantially related to her prior representation,

and that disqualification is appropriate.

CONCLUSION

For the foregoing reasons, the Defendants motion to disqualify Glassman from

representing Genova in this matter is granted.

Charles P. Kocoras

United States District Judge

Dated: November 21, 2012

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