Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01394-GMS Document 226 Filed 05/15/2006 Page 1 of 3
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NEW CASTLE COUNTY KENT COUNTY SUSSEX COUNTY
Carvel State Building 102 West Water Street 114 E. Market Street
S20 N. French Street Dover, DE 19904 ` Georgetown, DE 19947 ‘
Wilmington, DE 19801 Criminal Division [302) 739-4211 (302) 856-5352
Criminal Division (302) 577-8500 Fax: (302} 739-6727 Fax: (3021 856-5369
Fax: (302) 577-2496 Civil Division (302) 739-7641 TTY: (302) 856-2500
Civil Division {302) 577-S400 Fax: (302} 739-7652
Fax: (302) 577-6630 TTY: (302) 739-1545
TTY: (302) 577-5783
PLEASE REPLY TO:
May 15, 2006
Hon. Gregory M. Sleet
United States District Cotut
Lock Box 19
844 North King Street
Wilmington, DE 19801
Re: Conley v. Chafiinch, et al. `
Civ. A. No. 04-1394-GMS
Dear Judge Sleet:
Please allow this to respond to Plaintiffs counsel’s letters of May l l, 2006 (D.I. 219) and
May 12, 2006 (D.I. 223). The parties have consented to Plaintiffs voluntary dismissal (with
prejudice) of Counts 1`I and lll and the dismissal of Delaware State Police and Colonel Chaftinch in
his official capacity, as to Count I. The trial has been rescheduled to begin on Monday, June 5,
2006. In order that the defense might proceed as contemplated, the undersigned Deputy Attorneys
General have entered their appearance as counsel for Colonel Chaftinch, in his individual capacity,
in conjunction with Mr. Li guori. Colonel Chaftinch has executed a written waiver, pursuant to Rule
1.9. .
There is no motion before the Court with regard to the status of counsel, other than the
pending motion to disqualify Mr. Liguori. The question of representation of Colonel Chaftineh has
been resolved by defendant and his counsel, subject, ofcourse, to the Court’s ruling on the pending
motion to disqualify.} There is no basis in the Rules for an adverse party to inquire into a party’s
arrangements as to a party’s choice of legal representation, under such circumstances. However,
1 In the event the pending motion is granted and Mr. Liguori is barred from the case, counsel would reserve the
right to revisit the issue with Colonel Chaiiinch, including the question of whether the matter could go forward at this
point without Mr. Liguori’s participation.

Case 1:04-cv-01394—Gl\/IS Document 226 Filed 05/15/2006 Page 2 of 3
Hon. Gregory M. Sleet
Re: Conley v. Chaffinch, etal.
May 15, 2006
Page 2
plaintiff s counsel, at the pre-trial conference, attempted to question whether counsel could continue
to collaborate in the defense of this matter following the voluntary dismissal ofthe other defendants,
and has submitted case law to the Court, to which this letter will respond.
None of the cases cited by Plaintiff provide or even suggest that the State Attorney General
cannot defend Chaftinch in his personal capacity. All that the cases stand for is the proposition that a
person al—capacity defendant cannot invoke the Eleventh Amendment to avoid standing trial merely
because that defendant may be indemnified for damages under a state indemnification statute.;
Defendant here docs not take issue with these holdings. They are simply iuapposite to the issue of
Colonel Chaffinch’s legal representation.
Here, unlike the defendants in the case law cited by Plaintiff] Colonel Chaffinch is not
attempting to invoke the Eleventh Amendment to avoid this lawsuit against him in his personal
capacity. Rather, he is ready and willing to defend the case. However, given the State will
indemnify him for damages pursuant to the terms of l 0 Del.C. §400l, and given that Chaffinch has
specifically requested representation by the State, the Attorney General is entitled to participate in
the defense ofthe lawsuit against Chaffinch in his individual capacity.
The defense of this case, prior to the pre-trial conference last week, had been carefully
planned in conjunction with Mr. Liguori. As Mr. Liguori pointed out to the Court, it was in the
interest of all the defendants to collaborate wherever possible in the defense ofthe case. Should the
Court grant the pending motion to disqualify Mr. Li guori, this would effectively prevent the matter
from going forward on June 5, 2006. Likewise, Colonel Chaffinch would be prejudiced if he were to
go forward to trial on June 5, 2006 without : the . participation of the defense team that was
contemplated in trial preparation. The plaintiff has created this issue by waiting until the pre-trial
conference to announce that most of her claims would be abandoned. In so doing, she effectively
eliminated the confl ict of interest that had precipitated the appointment of independent counsel. The
remaining defendant is merely attempting to put himself in a position where he is prepared to go
forward without delay of the trial, and without prejudice to his defense as planned.
The State chooses to have its Attorney General defend this case in conjunction with
Chaffi nch’s personal counsel. Colonel Chaftinch himself requests that the Attorney General’s office
defend him. To the extent any conflict between the Attorney General’s office and Chafiinch ever
2 See e. g. Sales v. Grant, 224 P.3d 293, 297 {4m Cir. 2000) ("[Defendants] contend that because, tmder Virginia law,
any monetary judgment against them would be paid out of a state-iianded insurance plan, . . . by a check drawn on the
state's general treasury, the suit is barred by the Eleventh Amendment. We disagree"); Hudson v. City of New
Orleans, 174 F,3d 677, 687, n,7 (Sm Cir. 1999) (“the existence of an indemnification statute promising to pay
judgments when an ofiicer is sued in his individual capacity does not extend the Eleventh Amendmenfs protections
around the officer?].

Case 1:04-cv-01394—Gl\/IS Document 226 Filed 05/15/2006 Page 3 of 3
Hon. Gregory M. Sleet
Re: Conley v. Chaffinch, et al.
May 15, 2006
Page 3
existed, it has been explicitly waived in writing by Colonel Chafiinch. Under these facts, there is no
legal or logical basis to exclude present counsel———who have been preparing this case for trial for 18
months—from representing Chaftinch in a trial which is set to begin in less than one month.
Plaintiff certainly should not be allowed to use her "eve of trial" di smissals ofthe State defendants as
a tactic to deprive Colonel Chaftinch of the attorneys of his choice and, in so doing, delay the
resolution of this already protracted case.
Respectfully submitted,
/s/Ralph K. Durstein Ill
/s/Stepbani J. Ballard
Deputy Attorneys General
xc: Thomas S. Neuberger, Esq.
James E. Liguori, Esq.