And we do not know if Plaintiffs’ remaining counsel will represent Bradley. At the present time
she has only retained Vrdolyak. Once this Court has ruled on class certification, we expect that
Plainu ffs’ counsel will promptly determine whether and how they plan to represent Bradley. At
that time, this Court will determine the appropriate measures to cnsure that Bradley is unlikely to
provide Plaintiffs’ remaining counsel with any confidential information. Finally, this Court
orders Plaintiffs’ counsel to return to Bradley all documents and information received from her
and to destroy all notes, attorney work product and any other documentation related to her.’
IL. Conflict of Interests

Defendant asserts that Plaintiffs’ counsel should be disqualified because they have an
actual conflict of interests as they also represent the Gorman dealerships. Local Rule 83.51.7
describes two types of conflicts: section (a) pertains to directly adverse representations and
section (b) pertains to materially limited representation. Defendant claims that Plaintiffs’ counsel
have a section (b) conflict as their ability to advocate on behalf of Plaintiffs is materially limited.

This Court will only disqualify Plaintiffs’ counsel if we determine that there is a
substantial likelihood that Plaintiffs’ representation of the Gorman dealerships will materially
interfere with Plaintiffs’ counscl’s “independent professional judgment in considering
alternatives or foreclose courses of action that reasonably should be pursued.” L.R. 83.51.7,
Comm. Comment. There is some likelihood that Plaintiff's represeniation of the Gorman
dealerships will materially interfere with Plaintiff's counsel’s duty of zealous advocacy. Indeed,

this Court has alrcady noted that Bradley and Vrdolyak’s testimony regarding whom Bradley

? For clarity’s sake this opinion has referred exclusively to Karen Bradley, even though
we are aware that Vrdolyak also represents her husband, Larry Bradley. This order pertains to all
contacts with, information reccived from and information about Larry Bradlcy as well.

13



approximately ten times and Vrdolyak estimates that they spoke a half dozen times (/d., Tab 2,
Vrdolyak Dep. at 123; Tab 6, Bradley Dep. at 245.) On June 23 this Court ordered Plaintiffs’
counsel to have no further communications with Bradley pending resolution of the
disqualification issue, Except for one conversation when Vrdolyak called Bradley to inform
her that a different attomey, William Rodegheir, would represent her at her

deposition. —Vrdolyak has complied with this Court’s order. (Id., Tab 6, Bradicy Dep. at 26.)
However, Bradley did speak with Sean Howard, Vrdolyak’s paid consultant. (id. al 427.) Not
only did Bradley call Howard, but Howard also called Bradley. (Id., Tab 14, Howard Dep. at
242; Tab 24, Howard Phone Record.) Phone records show that Howard called her thirty-six
times in a twenty-one day period ending on the day Bradley was deposed. (Jd., Tab 24, Howard
Phone Record.) Howard stated that the purpose of the calls was “prayer or comforting.” (Id.,
Tab 14 at 283-84.)

Contacts Between Vrdolyak and Plainti fis’ Other Counsel

In addition to Vrdolyak, Plaintiffs are also represented by William Harte, Dennis Both,
Eugenc Pincham, Nicholas Geanopoulos, William Hooks, Steve Berman, Christopher O'Hara
and Thomas Rakowski. Harte is the only lawyer, besides Vrdolyak, who has had any contacts
with Bradley, and his sole contact was at her deposition. (R. 54, Pls.” App., Ex. F, Harte Aff. at {|
14.) O’Hara, Harte, Hooks and Pincham’s knowledge of Bradley is based entirely on their
conversations with Vrdolyak. (/d., Ex. A, O’Hara Dep. at 35-36, 94-114; fixs. F-H, Harte, Hooks
and Pincham Affs.) Berman’s knowledge of Bradley is based on his conversations with O”Hara.
Ud., Ex. E, Berman Aff, at FJ 6-13.) O” Hara, Harte, Hooks, Pincham and Berman’s testimony is

consistent with the facts provided above. (id., Ex. A, O’Hara Dep. at 94-114; Exs. E-H, Berman,


ANALYSIS

Chrysler Financial raises two arguments in its motion to disqualify Plaintiffs’ counscl.
First, Chrys)er Financial argues that Plaintiffs’ counsel should be disqualilicd because their
contacts with Bradley provides them with access to confidential information. (R. 49, Defs.’ Mot.
at 1.) Second, Chrysler Financial argues that Plaintiffs’ counsel should be disqualiticd because
their treatment of Bradley, by diverting her grievance against Rochester Jeep into a claim against
Chrysler Financial, proves that their ability to advocate on behalf of Plaintiffs is limited by their
representation of the Gorman dealerships. (Id.)

1, Confidential Information

There is no dispute regarding the first two steps of the Schiess/e disqualification test.
First, there is a substantial relationship between the subject matter of the prior and prescnt
representations. Bradley was the administrative assistant to Defendant's assistant general
counsel and then became Plaintiffs’ counsel’s client. Second, Plaintiffs do not even attempt to
rebut the presumption that Bradley possessed confidential information, Bradley's testimony
establishes that she did. The only disputed issue is whether Plaintiffs can rebut the presumption
that Bradley provided or is likely to provide their counsel with confidential information.

Partics traditionally rebut this presumption by proving that effective screening
mechanisms were in place when the disqualifying event occurred, The disqualifying event in this
case was a telephone conversation between Bradley and Vrdolyak. The unique facts of this case,
however, do not require that screening mechanisms were in place at that time, First, Plaintiffs’
counsel do not work in a single law firm; they work in several different firms located in Chicago

and Seattle. This loose association of lawyers should not be required to implement the formal



matter of the prior and present representations. If we conclude a substantial

relationship does exist, we must next ascertain whether the presumption of shared

confidences with respect to the prior representation has been rebutted. If we
conclude this presumption has not been rebutted, we must then determine whether

the presumption of shared. confidences has been rebutted with respect to the present

representation. Failure to rebut this presumption would also make disqualification

proper.
Schiessle, 717 F.2d at 420. Schiessle dealt with a lawyer switching from one law firm to another,
so the terminology of the test is not directly applicable to the facts of this case. Nonetheless, the
test applies with equal force to non-lawyers: paralegals, secretarics and clients.' Thus, the test,
restated in language appropriate to the facts of this case, is: if a court finds that there isa
substantial relationship between Bradley’s work and claim, the court will presume that she
obtained confidential information while working for Defendant and provided that confidential
information to Plaintiff's counsel when she hired them to represent her.

The Seventh Circuit has identified general principles a court should adhere to when
dctermining whether the non-moving party has rebutted these presumptions. First, a court must
apply a “very strict standard of proof” and “any doubts as to the existence of an asserted conflict
of interest must be resolved in favor of disqualification.” LaSalle Nat'l Bank v. County of Lake,
703 F.2d 252, 257 (7th Cir. 1983), cited with approval in United States v. Goot, 894 F.2d 231,

235 (7th Cir. 1990). Second, the non-moving party must submit “objective and verifiable

evidence” that “clearly and effectively” tebuts each presumption. Schiessle, 717 F.2d at 420-21;

1 See Burrow v. Northeast J. Reg'l Commuter R.R. Corp., No. 00 C 3648, 2002 WL
924857, at *5 (N.D. Ill. May 6, 2002); Kapco Mfg. Co. v. C&O Faters,, Inc., 637 F. Supp. 1231,
1236 n.1 (N.D. Ll. 1985); Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037, 1043 (W.D.
Mo. 1984), cited with approval in Kapco, 637 F. Supp. at 1236 n.11 (stating that “a persuasive
argument can be made that a non-lawyer would be more likely to reveal confidential
information”).


Harte, Hooks and Pincham Affs.) In particular, they maintain that they were informed that
Vrdolyak instructed Bradley not to reveal any confidential information and that Bradley has not
provided Vrdolyak with any confidential information. (/d., Ex. A, O’Hara Dep. at 35-36, 94~
114; Bx. E, Berman Aff. at 79; £x. F, O'Hara Aff. at 4 12, 17; Ex. G, Hooks Aff. at fff 11, 16;
Sx. H, Pincham Aff. at ff] 5, 13.) Neither party discussed whether Both, Geanopoulos or
Rakowski knew anything about or learned anything from Bradley.

Finally, Vrdolyak sent Berman copies of the Bradley documents. (R. 49, Def.’s App.,
Tab 2, Vrdolyak Aff. at 141.) Plaintiffs’ counsel stated in a July 17 hearing before this Court that
the cnvelope containing these documents was not opened, but O”Hara testified during his J uly 28
deposition that hc opened the envelope, but did not read the documents. (R. 49, Def.’s App., Tab
13, O’Hara Dep. at 151; R. 56, Def.’s App., Tab 37, July 17 Hearing Transcript at 13.)

LEGAL STANDARDS

Disqualifying an attorncy is a “drastic measure which courts should hesitate to impose
except when absolutely necessary.” Schiessle v, Stephens, 717 F.2d 417, 420 (7th Cir. 1983).
Courts must carefully balance “the sacrosanct privacy of the attorney-client relationship” with
“the prerogative of a party to procced with counsel of its choice.” Jd. Motions to disqualify
should be “viewed with extreme caution for they can be misused as techniques of harassment.”
Freeman v, Chi. Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982).
Confidential Information

The Seventh Circuit, in Schiessle, enunciated a three-part test to determine when a court

should grant a motion to disqualify due to unfair access to confidential information:
we must determine whether a substantial relationship exists between the subject

5


(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after disclosure.

LR. 83.51.7(b). The committee comments to this rule explain that:

Loyalty to a client is also impaired when a lawyer cannot consider, recommend or
carry out an appropriate course of action for the client because of the lawyer’s other
responsibilities or interests. The conflict in effect forecloses alternatives that would
otherwise be available to the client. Section (b) addresses such situations. A
possible conflict does not itself preclude the representation. The critical questions
are the likelihood that a conflict will eventuate and, if it does, whether it will
materially interfere with the lawyer’s independent professional judgment in
considering alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client. Consideration should be given to whether the client
wishes to accommodate the other interests involved.

7d,, Comm. Comment. The local rule and the committee comments indicate that a motion to
disqualify does not require an actual conflict; the rule uses the verb “may” and the comment

”? Because

states that a court should consider “the likelihood that a conflict will eventuate.
disqualifying an allomey is a “drastic measure,” this Court will only do so if it finds that there is

a substantial “likelihood that a conflict will eventuate” and that the conflict “will materially

interfere” with the lawyer’s duty to be a zealous advocate. Id.

? This Court is aware that in our previous order we stated that an actual conflict was
required for disqualification. In that order, we relied on Local Rule 83.61.7(a), which does
require an actual conflict, not Local Rule 83.61.7(b) which requires slightly less than an actual
conflict. See Burrow, 2002 WL 924857, at *4 (deciding a motion to disqualify based on an
alleged violation of local rule 83.61.7(b) by determining whether the lawyer’s other clicnt will
cause the lawyer to “temper” his advocacy); Guillen v. City of Chi., 956 F. Supp. 1416, 1426-27
(N.D. II. 1997) (interpreting Rule of Professional Conduct 1.7(b), an earlier, but identical,
version of Local Rule 83.61.7, and noting that Local Rule 83.61.7(b) is “arguably broader” than
Local Rule 83.61.7(a) which concems “directly adverse” representations and requires an actual
conflict); Clay v. Doherty, 608 F. Supp. 295, 302 (D.C. Ill. 1985) (interpreting District Court
General Rule 5-105(B), an earlier version of Local Rule 83.61.1(b), and noting that, absent an
actual conflict, the likelihood of an adverse effect must be “powerful” in order to disqualify an
attomey).



Mivuty Gree Form (06497)

United States District Court, Northern District of Ulinois

Name of Assigned Judge Ruben Castillo Sitting dudge if Other
or Magistrate Judge than Assigned Judge
~~]
CASE NUMBER 03 C 759 DATE 10/22/2003
CASE Cobum, ct al. vs. DaimlerChrysler Services North America, LLC
TITLE

{fn the tallowing Ins (a) indicate the party Hing the motion, ¢.g., plaintiff, defendant, 3rd party plaintit. and (b) state bricily the nature

' of the motion being presented.|
MOTION: © eins Pe

DOCKET ENTRY:

(ty 0 Filed motion of [ use listing in “Mation” box above,]

(2) im Brief in support of motion due.

(3) o Answer brie?to motion due___, Reply to answer brief due

(4) 0 Ruling/Hearingon set for at.

(5) Q Status hearing[held/continued to] [set for/re-set for}on ss _set for at

(6) Oo Pretrial conference[held/continued to [set for/re-sct for] on set for at,
(7) Qo Trial[set for/re-set for]on at

(8) im [Bench/Jury trial] [Hearing] held/continued to at__

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) [1 Local Rule 41.1 OOFRCP41 (a1) 0) FRCP41(4)(2).

ao [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion for
disqualification is granted in part and denied in part.

dl) [For further detail see order attached to the original minute order. |

No notices required, advised int open court, Document

Number

No notices required. sunbae of nol

Notices mailed by jndye’s staff. orl 2 3, Bibe

Nolified counsel by telephone sine docket

wv | Docketing to mail notices,

Mail AO 450 fom,

lo \

Cony to judge/magistrate judge, apne
ace gil wien
courtroom do
RO deputy’s a
initials }-—
Date/time received in
__cantral Cletk’s Ottice wing eu



at 1065. Vrdolyak states that he did not receive any confidential information. While there is no
evidence that directly contradicts this statement, Vrdolyak’s testimony does not “clearly and
effectively” rebut this presumption. First, Howard, Vrdolyak’s paid consultant, spoke with
Bradley regularly afier the Court ordered Vrdolyak to have no contact with Bradley. The
frequency, duration and timing of the calls raises doubts about whether the purpose of these calls
was actually “prayer and comfort.” Second, Vrdolyak and Bradley’s description of the August 18
mecting in the Detroit airport are materially inconsistent. Vrdolyak stated that Bradley’s “anger
was directed at Chrysler Financial.” Bradley stated that she specifically told Vrdolyak that she
wanted to sue Rochester Jeep, not Chrysler Financial. While this contradiction does not directly
undermine Vrdolyak’s claim that he received no confidential information, it raises doubts about
the reliability of his testimony. The Seventh Circuit requires a “strict standard of proof” and
instructs this Court to resolve any doubts in favor of disqualification. Accordingly, we resolve
thesc doubts in favor of Defendant and disqualify the law firm of Edward R. Vrdolyak, Ltd.,
including both Vrdolyak and Geanopoulos.

This Court is aware that Vrdolyak did not create this ethical dilemma. Bradley’s husband
called him secking counsel. Vrdolyak is, however, personally responsible for the disqualification
of his law firm. He acted aggressively. This Court has previously stated that

counsel . . . must take a conservative rather than aggressive approach. The “chalk

lines” drawn by the ethical rules are meant to be avoided at all costs. The goals

should not be to come so close to the “chalk lines” that one is covered in white dust.

The goal must be to operate at all times well within the ethical “chalk lines” drawn

by our ethical rules.

Jin re Air Crash Disaster Near Roselawn, Ind. on October 31, 1994, 909 F. Supp. 1116, 1122

(N.D, Tl. 1995). While Vrdolyak took the precautions he thought were necessary, he is covered

il



prophylactic screening mechanisms that are required of most law firms. Second, the
disqualifying event was a communication from a potential client. A lawyer can only discover
that a client has confidential information through discussion. Appropriately, this Court focuses
on Vrdolyak’s actions taken after he learned where Bradley worked, rather than on whether
scrcening mechanisms were in place before they spoke.

As soon as Vrdolyak learned that Bradley worked for Chrysler Financial’s assistant
general counsel, he told her not to tell him anything about her work. This instruction does not
“clearly and effectively” demonstrate that Vrdolyak did not reccive and is not likely to receive
any confidential information. First, Bradley, as a potential plaintiff in this case, has a personal
incentive to transmit confidential information. Second, the information Vrdolyak requested
(everything about the two cars Chrysler Financial financed for Bradley) and the information
Vrdolyak prohibited (anything about the pending discriminatory financing case) are closely
related. As the dispute over the documents that Bradley gave to Vrdolyak exemplifies, the
distinction between confidential and non-confidential information is ambiguous. Finally,
Bradlcy is not a lawyer, so in light of the close relationship between the sought-after and the
screencd-off information, she is not qualified to determine confidentiality. See Kapco, 637 F.
Supp. at 1236 n.11. The effectiveness of Vrdolyak’s screen—asking her not to tell him anything
about her work—hinges on her ability to identify confidential information. The combination of
these three facts convinces this Court that Vrdolyak’s instruction does not “clearly and
effectively” rebut the presumption that Bradley provided him with confidential information.

Yet effective screening mechanisms are not the only way to rebut the presumption of

shared confidences. Uncontradicted testimony can also rebut the presumption. Cromley, 17 F.3d

10



see also Goot, 894 F.2d at 235; Freeman, 689 F.2d at 723 (stating that requiring evidence that
“clearly and effectively” rebuts the presumption is reasonable and is not “unattainably high”).
Finally, “[uJncontroverted [sic] affidavits are sufficient rebuttal evidence.” Cromley v. Bd. of
Educ. of Lockport Township High Sch, Dist. 205,17 F.3d 1059, 1065 (7th Cir. 1994).

The first presumption is rebutted if the court finds that the individual received no
confidential information during the prior representation. Schiessle, 717 F.2d at 420, The second
presumption is rebutted if the court finds that the individual did not and is not likely to
communicate any confidential information in the present representation. Jd. at 421. The
principal manner through which a party can demonstrate that no confidential information was or
is likely to be communicated is by “demonstrating that ‘specific institutional mechanisms’ (e.g.,
‘Chinese Walls’) had been implcmented to effectively insulate against any flow of confidential
information.” /d.; Cromley, 17 F.3d at 1095 (identifying “types of institutional mechanisms” and
factors that determine a screen’s effectiveness), Screening, however, is not the exclusive means
of rebutting this presumplion. See Kapco, 637 F. Supp. at 1240. In situations where formal
mechanisms are impractical, for example in very small firms, the presumption can be rebutted
with affidavits that “clearly and effectively” demonstrate that no confidential information was or
is likely to be communicated, Jd.

Conflict of Interests
The local rule for conflicts of interests in the Northern District of Illinois, which is based

on the ABA Model Rules, provides that:

(b) A lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer’s responsibilities to another client or to a third
person, or by the lawyer’s own interests, unless:



On June 18 Vrdolyak traveled to Detroit with Scan Howard, a paid consultant, to meet
Bradley and to execute a retention contract. (R. 49, Def.’s App., Tab 6, Vrdolyak Dep. at 276-
77, Tab 14, Howard Dep. at 27.) Bradley testified at her deposition that she told Vrdolyak that
she only wanted him to bring claims against Rochester Jeep. (/d., Tab 6 at 214 (“I basically told
him who we are specifically going after.”), 220-21 (“we were retaining him as an attormcy and we
gave him information as to our claim against Rochester Jeep. ... We wanied to be sure that we
did have an action against Rochester Jeep and he said definitely you do.”).) She subsequently
qualified thesc statements, in response to leading questions from her own lawyer, by stating that
she “soon realized that Chrysler Financial was an active party in the racial discrimination.” (R.
54, Pls.” App., Ex. B, Bradley Dep. at 456-58.) Her testimony, however, is inconsistent with the
language of the retention contract. The contract, which she signed, clearly states that Vrdolyak
would represent her with respect to her claims against Chrysler Financial, (R. 49, Def.’s App.,
Tab 12, Retention Contract.) The contract does not mention Rochester Jecp. Finally, Vrdolyak
testified that Bradley's “anger was directed at Chrysler Financial” and that she thought “the
dealer really doesn’t have that much to say about it.” (/d., Tab 2, Vrdolyak Dep. at 108.)

At the airport meeting, Bradley gave Vrdolyak documents that he had requested (“every
document that she had on the two cars”), some of which she printed out during work hours from
Chrysler Financial’s computer system. (/d., Tab 2, Vrdolyak Dep. at 87; Tab 6, Bradley Dep. at
205.) Bradley described the documents she gave Vrdolyak as “information on [her] vehicles with
Rochester Jeep.” (/d., Tab 6, Bradley Dep. at 276.) Vrdolyak did not ask Bradley if the
documents were confidential, (/d., Tab 2, Bradley Dep. at 151.)

Between June 12 and June 23, Bradley estimates that she spoke with Vrdolyak


wanted to sue is inconsistent, Yet we are unconvinced that this likelihood is substantial.
Defendant assumes that the only reason Plaintiffs and Bradlcy have not sued any car dealerships
is because Plaintiffs’ counse] have not advised them to or, even worse, dissuaded them from
doing so. ‘This Court finds that Plaintiffs’ counsel’s conclusion that their representation will not
be adversely affected is objectively reasonable. Additionally, Plaintiffs’ counsel have
represented to this Court that Plaintiffs have consented to the dual representation. (R. 16,
Berman Declaration.) This Court believes that litigants, even in class actions, are active parties,
not passive pawns. Depriving Plaintiffs of their chosen counsel is much too drastic a measure for
this Court. Thus, we deny Defendant’s motion to disqualify Plaintiffs’ counsel on these grounds

This Court, nonethcless, is keenly aware that one of the requirements of class certification
is that “the representative partics will fairly and adequately protect the interests of the class.”
Fed. R. Civ. P. 23(a). This requirement applies to both Plaintiffs and Plaintiffs’ counscl.
Retired Chi. Police Ass'n v, City of Chi., 7 F.3d 584, 598 (7th Cir. 1993). This Court has some
doubts whether Plaintiffs’ counsel, while representing Plaintiffs and the Gorman dealerships, will
“fairly and adequately protect the interests of the class.” See DeLeo v. Swirsky, No. 00 C 6917,
2002 WL 989526, at *3 (ND. Ill. May 14, 2002). This Court strongly encourages Plaintiffs’
remaining counsel to address this issue prior to seeking class certification. Plaintiffs’ motion for
class certification is due on or before December 30, 2003.

CONCLUSION

Defendant's motion for disqualification is partially granted and partially denied. (R. 49-

1.) The law firm of Edward R. Vrdolyak, Ltd. is disqualified. Plaintiffs’ counsel are ordered to

return to Karen and Larry Bradley all documents and information received from them and to

14



confidential letters, including letters to outside counsel. She also had access to Chrysler
Financial's litigation files. (R. 49, Def.’s App., Tab 6, Bradley Dep. at 53-54, 59, 64, 67-69.)

On February 6 Bradley purchased a Jeep Grand Cherokee from Rochester Jeep, receiving
a $2,500 rebate and 10.54% financing. (/d., Tab 7, Sales Contract.) Bradley was unhappy with
her purchase as she believed that the salesman lied to her, failed to disclose important
information and concealed the true interest rate offered by Chrysler Financial. (/d., Tab 8,
Bradley Email at 4.) Bradicy asked some of her colleagues at Chrysler Financial for assistance,
and they helped her obtain new financing at 2.9% without the $2,500 rebate. (/d., Tab 32, Lahey
Aff.) In March Bradley contacted numerous attorneys about potentially suing Rochester Jecp.
(id., Tab 6, Bradley Dep. at 243; Tab 10, Bradley Emails.) She sent two emails explicitly stating
that she was “only going after the Dealership.” (/d., Tab 10, Bradley Emails.)
Contacts Between Bradley and Vrdolyak

On June 11, 2003, Bradley’s husband called Edward Vrdolyak, one of Plaintiffs’ lawyers.
(Id., Tab 2, Vrdolyak Dep. at 66.) Bradley and Vrdolyak spoke the next day. At this time,
Bradley wanted to sue Rochester Jeep and did not want to suc Chrysler Financial. (/d., Tab 6,
Bradley Dep. at 244 (“I was not interested —Edward Vrdolyak was interested in suing Chrysler
Financial, everybody. That is not who I wanted to bring litigation against. I just wanted
Rochester Jeep only”).) As soon as Vrdolyak learned about Bradley’s employment at Chrysler
Financial, Vrdolyak told her not to tell him anything about her work at Chrysler Financial. (/d.,
Tab 2, Vrdolyak Dep. at 32.) The following day, June 13, Bradley informed Chrysler Financial
that she had hired Vrdolyak, and Chrysler Financial promptly transferred her to the insurance

department, (R. 54, Pls.’ App., Ex. C, Vrdolyak Dep. at 35.)



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

EASTERN DIVISION
JERRELL D. COBURN, et al. )
)
Plaintiffs, )
) No. 03 C759
)
) Honorable Ruben Castillo
DAIMLERCHRYSLER SERVICES )
NORTH AMERICA, L.L.C., d/b/a )
CHRYSLER FINANCIAL COMPANY, L.L.C. )
) aye
Defendant. y
MEMORANDUM OPINION AND ORDER we

Presently before this Court is Defendant’s motion to disqualify Plaintiffs’ counsel. (R.
49-1.) Defendant, DaimlerChrysler Services North America, L.L.C., d/b/a Chrysler Financial
Company, L.L.C. (“Chrysler Financial”), argues that Plaintiffs’ counsel should be disqualified
because: (1) their contacts with Karen Bradley, administrative assistant to Chrysler Financial’s
assistant general counsel, has provided and is likely to provide them with confidential
information; and (2) their treatment of Bradley demonstrates that their ability to represent
Plaintiffs is materially limited by their representation of two dealerships, Marquette Chrysler
Jeep Dealership and Dodge of Midlothian, owned by Gerald Gorman (“Gorman dealerships”).
For the reasons provided below, this Court partially grants Defendant’s motion to disqualify. (R.
49-1.)

RELEVANT FACTS

Karen Bradley was the administrative assistant to Patricia Musso, Chrysler Financial’s

assistant gencral counsel. As part of her job, Bradley processed all legal documents received by

Chrysler Financial, including confidential Jegal information and privileged documents, and typed

(,\



in ethical white dust. Vrdolyak’s first instinct was correct. He informed Bradley not to provide
him with any confidential information. His next instinct was not. He continued to speak with
her, obtained documents from her and agreed to represent her. Instead of aggressively seeking lo
secure a new client, Vrdolyak should have acted conservatively; he should have ceased all
contacts and immediately sought guidance from this Court. It is much easier for this Court to
advise litiganis on how to comply with ethical rules than it is to determine afler the fact whether
they should be disqualified. Litigants faced with an ethical dilemma should act conservatively;
they should immediately seek guidance from the Court.

This Court next considers whether Plaintiffs’ remaining counsel should be disqualified.
Like Vrdolyak, they have submitted uncontradicted affidavits stating that they received no
confidential information. Unlike Vrdolyak, however, they have had no proxy contacts, via
Howard, with Bradley. Additionally, this Court is unable to identify a single material
inconsistency that undermines the reliability of their testimony. O’Hara’s testimony
contradicting a statement made in open court regarding whether the envelope containing the
Bradley documents was opencd is not material. Thus, this Court finds that Plaintiffs’ remainmg
counsel have “clearly and effectively” rcbutted the presumption that they received confidential
information. Accordingly, we deny Defendant’s motion to disqualify in regard to Plaintiffs’
remaining counscl.

Nonetheless, this Court orders Plaintiffs’ remaining counsel to have no additional
contacts with Bradley until we have ruled on class certification. This Court cannot predict the
future of Bradley’s relationship with Plaintiffs’ remaining counsel. We do not know if Bradley

will be a plaintiff in this case or if she will bring a separate action against Chrysler Financial.

12



destroy all notes, attorncy work product and any other documentation related to them. Plaintiffs’
remaining counsel are ordered to have no contacts, directly or indirectly, with Karen or Larry
Bradley. Once this Court has ruled on class certification and Plaintiffs’ remaining counsel have
informed this Court of how they intend to represent Bradley, we will instruct Plaintiffs’

remaining counsel on the measures required to ensure that Bradley is unlikely to provide them

wi
ENTERED: 0 Beli

Judge Ruben Castillo
United States District Court

with any confidential information.

Dated: October 22, 2003

15