Free Letter - District Court of Delaware - Delaware

Case 1 :07-cv—OO775-GIVIS-LPS Document 49 Filed O4/22/2008, Page 1 of 3 {
LAW OFFICES HAROLD SCHMITTINGER
NICHOLAS H. R¤¤R»¤u¤z SCHMITTINGER AND RODRIGUEZ, P.A. 1928 - 2008
JOHN J. SCHMITFINGER I
DOUGLAS B. CA'I'I'S 414 SOUTH STATE STREET MICHELE PROCINO-WELLS I
WILLIAM D. FLETCHER, JR. OF COUNSEL `
CRAIG T. ELIASSEN
WILLIAM w. PEPPER SR. DOVER, DELAWARE 19901 NEWARK OFFICE I
CRYSTAL L. CAREY* * TELEPHONE 3O2_G74_O14O CHRISTIANA EXECUTIVE CAMPUS
?S€STAF+€$§ZEEE111 FAX 302-674-1830 22°Ni'$J1`3Z?'fJ£';1'?1T$EE1$%'i1 2°3 ,
NOEL E. PRIMOS . TELEPI-I0NE 302-894-1960 I
DAVID A. BOSWELL FAX soz-e94-mss I
WALT F. SCHMITTINGER
R. Sc0‘r‘r KAPPES REHOBOTH BEACH OFFICE
JEFFREY J. CLARK WAcI-I0vIA BANK BUILDING
KYLE KEMMER 18489 COASTAL HIGHWAY, 2ND FLR I
KATHRYN J. GARRISON REHc•EOTH BEACH, DELAWARE 19971 ,
ERIN K. FIUGERALD TELEPI-IoNE 302-227-1400 I
KRISTI N. Vrr0LA FAX 302-645-1843
B. BRIAN BRI'I'I'INGHAM
MIDDLETOWN OFFICE I
*A·-s¤ A¤M1rr¤¤ ·~ M~m»1~¤ 651 N. BR0AI:> swam, sn; 104
MI¤¤LETOwN, DELAWARE 19709
· TELEPHONE 302-378-1697 ,
FAX soz-ave-1659 I
April 22, 2008 I
I
The Honorable Leonard P. Stark
United States District Court 1
844 N. King Street, Lock Box 26
Wilmington, DE 19801 _ i
VIA ELECTRONIC FILING t
RE: Cyril Madukwe v. Delaware State University, et al. ;
C.A. NO. O'7—775—GMS—LPS 1
Angele A. Ozoemalam v. Delaware State University, et al.
C.A. NO. O7—804—SLR—LPS .
Dear Magistrate Judge Stark: *
1
On April 18, 2008, oral argument was held before Your Honor on two 1
Motions to Disqualify filed by Delaware State University and
certain related parties in the above—referenced cases. On April
21, 2008, the Court issued an Order directing that the parties
file letter briefs addressing the applicability, if any, of United
States v. Gordon, 334 F.Supp.2d 581 (D.Del. 2004), to the Motions
to Disqualify, and particularly to the issue of whether Defendants
waived their ability to assert a conflict of interest. This is
the letter brief in response to the Court's Order on behalf of
Plaintiffs Cyril Madukwe and Angele A. Ozoemalam.
It is Plaintiffs' position that the Gordon case is not applicable
to Defendants‘ pending motions because it is factually distinct.
when this Court addressed the issue of waiver, at pages 595 to E
596, it addressed only whether New Castle County had affirmatively I
waived the conflict of interest through the letter written by Mr. I
4 Mullaney, the County attorney. The Court did not address the 1
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Case 1:07-cv-OO775—GIV|S-LPS Document 49 Filed O4/22/2008 Page 2 of 3
April 22, 2008 i
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issue of whether the former client, New Castle County, had waived i
the conflict through its own delay, presumably because the issue
was not raised by any of the parties.
Of course, Defendant Freebery‘s attorney, Mr. Fox, did raise the
issue of the United States' delay in pursuing the conflict of
interest during the pre—litigation criminal investigation. 334
F.Supp.2d at 584. The United States, however, could not waiver
any conflict through its actions or inaction, because New Castle §
County, not the United States, was the former client. Again, in
Gordon, the issue was whether New Castle County had affirmatively
waived the conflict.
This Court's decision in Conley v. Chaffinch, 43l F.Supp.2d 494 I
(D.Del. 2006), decided after Gordonq is far more on point
factually. In Conley, the former client waited more than eight
months after learning of the representation of the adverse party
by her former attorney before raising the issue. Similarly, in
this case, the former client, Delaware State University ("DSU"), .
waited more than l4 months after learning of the conflict to E
either pursue the matter after receiving a clear response from
Plaintiff's counsel that there was no conflict (the Ozoemalam
case), or to raise the potential conflict at all (the Madukwe
case). In this case, as i11 Conley, there mms 1M> alleged
affirmative waiver, as in Gordon, but a waiver by delay and
apparent acquiescence in the representation of both Plaintiffs by
Schmittinger and Rodriguez ("S&R"). . g
An additional factor distinguishing the instant case from Gordon [
is that jll Gordon, the attorney· in question. had. actually )
represented the former client, New Castle County, in proceedings
involving the current client, Ms. Freebery. Indeed, the attorney
in question had represented both New Castle County and Freebery
with respect to the grand jury investigation. 334 F.Supp.2d at
583. Even in Conley, where this Court refused to disqualify the
attorney whose representation was challenged, the attorney had
represented the former client in disciplinary proceedings before
the same entity (the Delaware State Police) directed by the
attorney's current client.
By contrast, S&R never represented DSU in any matters related to E
the employment of Ms. Ozoemalam or Mr. Madukwe. Defendants have I
yet to explain how S&R's prior representation of DSU in completely
unrelated employment matters could have provided it with
confidential information that it can now use against DSU in the
Ozoemalam and Madukwe cases. To rule that there is a substantial 2
relationship here, without a showing of how confidences from the Q
former relationship could be used to give Plaintiffs an unfair
advantage in the current litigation, would eviscerate the proper
boundaries of Rule l.9 as explained in comment 2 to the Rule. §
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Case 1:07-cv—OO775-GIVIS-LPS Document 49 Filed O4/22/2008 Page30f3
April 22, 2008 I
Page 3 _ {
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Should the Court desire any further clarification of the matters
raised in the briefing, at oral argument, or in this supplemental
briefing, the undersigned stands ready to provide it.
Very truly ours, I
NOEL E. PRIMOS g
Bar I.D. #3124 I
NEP:pmw ,
cc: Kathleen Furey McDunough, Esquire {
Marc Stephen Casarino, Esquire {
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Case 1:07-cv-00775-GMS-LPS

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Case 1:07-cv-00775-GMS-LPS

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Case 1:07-cv-00775-GMS-LPS

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