has based its disqualification motion solely on the presumption that confidences have been or
will be disclosed and, as explained above, we reject that argument.
Conclusion
For the reasons explained above, the Court denies Metra’s motion to disqualify [Docket #
10-1]. The Court sets the following schedule on Metra’s motion for summary judgment:
plaintiffs response is due on or before June 6, 2002, and Metra’s reply is due on or before June

20, 2002. The Court will rule by mail.

Dated: May 9, 2002

(UM Lea

MATTHEW F. it le

United States District Judge


both she and Farina acknowledged that Emery was ethically bound by client disclosure rules; she
also states that she and Farina expressly agreed that she would strictly comply with the ethics
tules governing disclosure of client confidences and secrets and that she would not, under any
circumstances, reveal, divulge or disclose to Farina or HFD any confidences or secrets of Metra.
Emery Affidavit, {{]13-14. Additionally, HFD submitted affidavits from the other attorneys at
the firm stating that Emery has never provided them with any confidences or secrets of Metra.
See Affidavit of George Burgess, 5, 8; Affidavit of Craig Church, 95, 7; Affidavit of Robert
Drummond, 95, 7; Affidavit of Alan Fisher, 94; Affidavit of James Foley, §95,7; Affidavit of
Steven Garmisa, (4; Affidavit of Richard Haydu, 995, 8; Affidavit of J. Dillon Hoey, 4;
Affidavit of Michael Libman, (4; Affidavit of Frank Van Bree, 4. We find that Emery’s and
Farina’s affidavits, supported by the affidavits of the other attorneys at the firm, are sufficient to
rebut the presumption that Emery has shared or will share Metra’s confidences and secrets with
HFD. Accord, Burrow v. Northeast Illinois Regional Commuter Railroad Corp., No. 00 C 3648,
Memorandum Opinion and Order Denying Motion to Disqualify (N.D. Ill. May 6, 2002).

It is troubling that Emery appears to have continued to represent Metra in this case for
about a month after retaining HFD. And even then, she did not withdraw voluntarily; she was
temoved from the case by Metra’s general counsel. She should have gone to Metra immediately
upon consulting or at least upon retaining HFD to ask that she be removed and screened off from
cases in which HFD was acting as opposing counsel (and HFD should have advised her to do so).
She did not do so. But Metra has not argued that its defense in this case was in any way
compromised by Emery’s continued involvement during that last month. And after Emery was

removed from the case, we gave Metra’s new counsel additional time to prepare the case. Metra


Minute Order Form (06/97)

United States District Court, Northern District of Iinois

OOFRCP4(m) ClGeneral Rule 21 COFRCP41(a\(1) [1 FRCP41(a)(2).

ao) Mf [Other docket entry] For the reasons set forth on the attached Memorandum Opinio:
the Court denies Metra’s motion to disqualify (10-1). The Court sets the following schedul

on or before 6/20/02. The Court will rule by mail.

(1) ff [For further detail see order attached to the original minute order.}

Name of Assigned Judge Matthew F. Kennelly Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C 43 DATE 5/10/2002
CASE Keane vs. METRA
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) ao Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Q Answer brief to motion due___. Reply to answer briefdue__.
(4) Oo Ruling/Hearing on__setfor__at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on__setfor__at
(6) o Pretrial conference{held/continued to] [set for/re-set for]on____setfor__— at
(7) a Trial[set for/re-set for]on__at
(8) Qo [Bench/Jury trial] [Hearing] held/continuedto___at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

motion for summary judgment: plaintiffs response is due on or before 6/6/02 and Metra’s reply is due

n and Order,
le on Metra’s

No notices required, advised in open court.

No notices required.
a number of notices

Document
Number

Notices mailed by judge’s staff.

MAY 13 2002

date docketed

ate mailed notice

Notified counsel by telephone.

v | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

Lupa poereta “sn

courtroom
OR deputy’s
initials

Date/time received in

|

central Clerk's Office mailing deputy initials


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RAYMOND KEANE, )
Plaintiff, }
vs. ) Case No. 01 C 43
NORTHEAST ILLINOIS REGIONAL } DOCKETED
SUA METRA ROAD CORP., } MAY 1 3 2002
Defendant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Raymond Keane, a locomotive engineer for Metra, has sued Metra under the Federal
Employer’s Liability Act for neck and back injuries he sustained on the job. The case is before
the Court on Metra’s motion to disqualify Hoey Farina & Downes, the law firm representing
Keane. Metra seeks disqualification because of HFD’s representation of Ellen Emery, a former
Metra in-house attorney, in a personal injury action she filed against Metra for injuries she
sustained on the job. While at Metra, Emery handled Keane’s case on behalf of the railroad.

When deciding a motion to disqualify, the Court first determines whether a substantial
relationship exists between the subject matter of the prior and present representations. Cromley
v. Board of Education of Lockport H.S. District 205, 17 F.3d 1059, 1064 (7th Cir. 1994)
(citations omitted). If it does, we presume that client confidences have been or will be shared,
and then ask whether that presumption has been rebutted. Jd. Although Emery did not join

HFD’s team in a professional capacity and did not technically switch sides in that litigation, the

\\


substantial relationship test is probably met here because Emery defended Metra against the
allegations brought by Keane and HFD and because she became a client of HFD, which was
representing Keane at the time. Metra argues that because Emery handled Keane’s case, the
presumption that she has shared or will share client confidences and secrets with HFD and
Dennis Farina, the lead HFD attorney handling her FELA case, is irrebuttable and that
disqualification is therefore automatically warranted. But, as the Seventh Circuit has recognized,
the presumption of shared confidences has been held to be irrebuttable only when an entire law
firm switches from one side in a law suit to the other side in the same lawsuit. Cromley, 17 F.3d
at 1066. Because that is not the case here, we must determine whether HED has rebutted the
shared confidences presumption.

Metra’s arguments notwithstanding, nothing here suggests that the “public’s interest in
maintaining the highest standards of professional conduct and the scrupulous administration of
justice,” Defendant’s reply brief, p. 9, has been or will be compromised; on the contrary, HFD
has demonstrated its desire and ability to further these goals in the past, see Miller v. Chicago &
North Western Transportation Co., 938 F. Supp. 503, 504-05 (N.D. Ill. 1996), and the Court is
persuaded that they have done so again here. In response to Metra’s motion, Emery and Farina
submitted affidavits that make clear that Emery has never divulged to HFD any confidences or
secrets relating to Metra, including information about Metra’s litigation and trial strategies, case
reserves and settlement policies and practices. Affidavit of Ellen Emery, 12, 20, 24; Affidavit
of Dennis Farina, {]2-4. In fact, both Emery and Farina recognized that the representation could
give rise to ethical concerns and took steps to avoid any such disclosures. Emery stated that

during the course of her initial discussions with Farina about whether he would take her case,