Free Letter - District Court of Delaware - Delaware

Case 1 :07-cv-00775—GIV|S-LPS Document 50 Filed 04/23/2008 Page 1 of 3
Potter
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Attorney at Law
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Wilmington, DE 19899-0951
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By CMIECF
The Honorable Leonard P. Stark
United States District Court
844 King Street, Lock Box 26
Wilmington, Delaware l980l
Re: Madukwe v. Delaware State Univ., et. al., C.A. No. 07-·775 (GMS/LPS)
Ozoemelam v. Delaware State Univ., et. al., C.A. No. 07-804 {SLR/LPS}
Dear Judge Stark:
Pursuant to the Court’s Order of April 2l, 2008, please allow this letter to serve as
Defendant Delaware State University’s supplemental brief in further support of its motions to
disqualify plaintiffs counsel inthe above—ret`erenced matters.
Brief Background F acts
Both Mr. Madukwe and Ms. Ozoemelam were terminated from employment with
Delaware State University (the "University") on September 26, 2006. Although the timing of
events is nearly identical for both plaintiffs, neither their employment, nor termination from
employment, were otherwise related. Following their respective terminations, plaintiffs were
afforded review of that decision through the University’s grievance procedure, in accordance
with its Professional Employee Handbook. Apparently, both plaintiffs retained Schmittinger &
Rodriguez, P.A. ("S&R") shortly thereafter. Indeed, Mr. Rodriguez accompanied Ms.
Ozoemelarn to her initial grievance hearing on October 20, 2006.
Once it was aware of S&R’s representation of Ms. Ozoemelam, the University
immediately notitied Mr. Rodriguez that it considered his representation of the plaintiff to be a
conflict of interest given the fact that S&R had been the U`niversity’s labor and employment
counsel for decades. (§_@ Mr. Casarino’s l0/25/06 letter to Mr. Rodriguez, attached as Ex. D to
Noel Primos’ Affidavit (D.l. 32).) Mr. Rodriguez responded by letter dated October 27, 2006,
indicating that he did not consider his firm’s representation of Ms. Ozoemelam to present a 1
conflict of interest. (Attached as Ex. E to Mr. Primos’ Affidavit.) Mr. Primos was a joint
signatory to that letter. Mr. Rodriguez’s letter left little doubt that further entreaties for S&R to
voluntarily withdrawal would have been futile. Nor was there any reason for the University to
believe that S&R’s position would have been different with regard to their representation of Mr.
Madukwe, which raised the exact same ethical considerations.

Case 1 :07-cv-OO775—GIV|S-LPS Document 50 Filed O4/23/2008 Page 2 ot 3
The Honorable Leonard P. Stark =
April 23, 2008 i
Page 2
The University Has Not Waived its Ability to Obi ect to S&R’s Conilict of Interest
As the Court has recognized, the case of United States v. Gordon, 334 F.Supp.2d 581 (D.
Dei. 2004) is instinctive on this point. Although Gordon was a criminai case, therefore
implicating slightly different rules, it makes clear that a delay between initial, pre-Compiaint
proceedings and the commencement of litigation in this Court is not a delay that is sufficient or
substantive enough to waive a party’s ability to object to the conflict of interest of opposing
counsel.
In Gordon, Mr. Fox acted as cormsei for New Castle County in connection with the
United States’ government’s initiai investigation of then·County Executive Thomas Gordon and
his Chief Administrative Officer, Sherry Freebery. Id at 583. Shortly after the investigation
began, Mr. Fox began to represent Ms. Freebery personally. Id The United States Attorney
spoke with Mr. Fox at the start of the investigation and made clear that the government believed
the County and Ms. Freebery (and Mr. Gordon) should have separate representation. Id at 584.
After Ms. Freebery was indicted, Mr. Fox moved to be admitted to this Court pro hoc vice in
order to continue to represent Ms. Freebery during the criminal proceedings. The government,
several citizens groups, and three County Council Members objected to the motion, arguing that
Mr. Fox was conflicted. Ultimately, this Court agreed, and denied the motion for his pro hoc
vice admission.1
One of the arguments advanced by Mr. Fox in support of his motion was that the
government waited too long to assert its objection and therefore waived its ability to do so.
Gordon, 334 F.Supp.2d at 597. The delay between the investigation and indictment (equivalent
to a civii complaint in this Court) was approximately two years. Mr. Fox argued that, during that
time, "no one ever suggested" that he had a conflict. The Court rejected that argument, finding
that “there were other direct communications demonstrating that Mr. Fox was welt aware that
this was an issue from the start." Id
As in Gordon, in the cases at issue here there is no question that S&R was on notice from
the very beginning of their representation that the University believed they had a conflict of
interest. They nonetheless proceeded to represent the plaintiffs through preliminary,
investigative processes — much like the criminal investigation process that took place in Gordon.
Recognizing the "dark shadow" that would be cast over that matter if Mr. Fox’s representation
continued, the Court went so far as to state that it would have disailowed the representation even
if the govermnent had not previously raised the issue. Id at 597. Given the uncontroverted
evidence of S&R’s longstanding and comprehensive representation ofthe University in labor
1 The University assumes that the reason cotmsel’s research on the disqualification issue did not
lead to the discovery of the Gordon case is that the Gordon case arose in the context of a pro hac
vice motion. In any event, counsel apologizes to the Court for not addressing United Stores v.
Gordon in its prior briefing.

Case 1 :07-cv-00775—GlV|S-LPS Document 50 Filed 04/23/2008 Page 3 ot 3 .
The Honorable Leonard P. Stark j
April 23, 2008 ·
Page 3
and employment matters, including their assistance in drafting some of the employment policies
at issue and recent review of the University’s risk management strategies, a similar "dark ‘
shadow" would linger over these matters should S&R be permitted to continue representation of
the plaintiffs.
Moreover, in Gordon, the Court effectively required Mr. Fox’s withdrawal even though it
worked a financial hardship upon Ms. Freebery. Id at 596. flaintiffs here have advanced no
argument that they will suffer a financial hardship, or even be significantly prejudiced, by S&R‘s
disqualification. Indeed, as the Court noted at oral argument, it is often the case that plaintiffs
are represented by one counsel at the outset of a matter, who are later replaced by different
counsel later in the litigation. ‘
Finally, in contrast to the University’s steadfast belief that S&R’s representation of
plaintiffs is unethical, the former client in Gordon (New Castle County) took steps to
affirmatively waive any conflict. Although the Court determined that those efforts were
ineffective, the evidence was clear that the individuals then in control of the County consented to
Mr. Fox’s representation of Ms. Freebery. Gordon, 334 F.Supp.2d at 595-596. The University
has never been asked to, nor would it, consent to S&R’s representation ofthe plaintiffs.
As demonstrated above, any waiver issue presented in the Ozoemelom and Modukwe
cases is much more akin to the Gordon waiver issue than in the case of Conley v. Chojinch, 431 .
li`.Supp.2d 494 (D. Del. 2006), which is relied on by plaintiffs. In Conley, the action was pending
before this Court for nearly nine months, through the entire discovery process, before the former
client raised any objection. Indeed, upon discovering the potential conflict, plaintiff indicated
she had no problem with her former counse1’s representation of the opposing party. lol at 500.
Such is not the case here. The University took immediate, reasonable steps to put S&R on notice
of its conflict of interest and never waivered from that position. As soon as the parties were
before this Court, and an appropriate remedy was available to correct the conflict, the University
sought it promptly.
Counsel are available at the Court’s convenience if Your Honor wishes to discuss the
foregoing. . q l
· ectful1y, gf
. Oran Qi
Sarah E. Dilouzio Vw/VEV-éy
(Delaware Bar l.D. 4085)
cc: Clerk ofthe Court (by CMCF)
Noel E. Primos, Esquire (by CM/ECF)
Marc S. Casarinc, Esquire (by CM/ECF)
86t l42

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