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Burnett v. Hinds County

United States District Court, S.D. Mississippi, Northern Division

July 20, 2017

MURPHY BURNETT PLAINTIFF
v.
HINDS COUNTY, MISSISSIPPI, et al., DEFENDANTS

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE

         Before the Court are the plaintiff's motions to disqualify counsel, to strike, and for sanctions. Docket Nos. 84 and 87. The motions have been fully briefed and the Court is ready to rule.

         I. Factual and Procedural History

         Murphy Burnett filed this action under 42 U.S.C. §§ 1983, 1985, and 1986 seeking redress for alleged violations of his constitutional rights, in addition to supplemental state law claims. Docket No. 1. Burnett named several defendants. Those that are relevant to this motion are the State of Mississippi through the Hinds County District Attorney's Office; Hinds County, Mississippi through its Board of Supervisors; the Hinds County Sheriff's Department and its Sheriff, Tyrone Lewis, in his official and individual capacities. Id.

         In an earlier ruling the Court dismissed with prejudice all federal claims against the District Attorney's Office due to Eleventh Amendment Immunity. Burnett v. Hinds Cty. ex rel. Bd. of Sup'rs, No. 3:14-CV-651-CWR-FKB, 2015 WL 5785562, at *4 (S.D.Miss. Sept. 11, 2015). The state law claims against that defendant were dismissed without prejudice “to [their] timely refiling in a state court of competent jurisdiction.” Id. Those claims have since been refiled in Hinds County Circuit Court. Docket No. 85.

         The facts giving rise to this suit were explained in the earlier decision, but essentially the harms for which Burnett seeks redress stem from his 2010 arrest, indictment, and detention for sexual battery, rape, kidnapping, and forced armed carjacking. Burnett's most troubling claim is that the District Attorney's Office knew of his innocence but withheld exculpatory DNA evidence from his counsel, Greta Harris, an assistant Hinds County public defender. This caused Burnett to languish in jail for nearly three years until the charges were dropped in 2013.

         During discovery in this suit, Burnett issued deposition subpoenas for Harris-now an assistant district attorney with the Hinds County District Attorney's Office-and her colleague, Shaunte Washington, the ADA who prosecuted Burnett. Their depositions were scheduled for November 29, 2016.

         Harris, uncertain as to why she was summoned, contacted Jason Dare, outside counsel for Hinds County, who informed her that he did not represent the District Attorney's Office. He directed her to Robert Sanders, counsel for the District Attorney's Office in the related state case. Harris and Dare discussed nothing about the substance of the case.

         Harris then called Sanders to notify him of her subpoena and inquire as to how she should respond. Later that day, Sanders met with Harris and Washington together, at which point he explained the nature of the suit. During this meeting, Washington recounted her prosecution of Burnett, but Harris did not discuss her representation of him. Harris and Washington met with Sanders once more on the day before the deposition to discuss the ground rules of the deposition and get advice on responding to questions. Sanders represented them both, in their official capacities, at the depositions.

         The instant motions concern the scope of Harris' conversations with Sanders, Dare, and Washington. Burnett alleges that Harris breached the duty of confidentiality owed to him, and that the others aided her in doing so. He contends that a conflict of interest exists that warrants disqualifying Sanders and Dare as counsel for their respective clients, striking Hinds County and Sheriff Lewis' answer, and sanctioning all of the attorneys involved for misconduct.[1] Harris remains adamant that at no time did she discuss anything about her defense of Burnett with Washington, Dare, or Sanders. In fact, she avers that she “never discussed [her] defense of Mr. Burnette [sic] with anyone other than Mr. Burnette [sic] and possibly other employees of the public defender's office at the time of the prosecution.” Docket No. 100, at 3.

         II. Discussion

         The Court's local rules compel attorneys to comply with the Mississippi Rules of Professional Conduct, including Rules 1.6, [2] 1.7, [3] 1.8, [4] 1.9, [5] and 1.11.[6] See L.U. Civ. R. 83.1. None of these Rules are implicated here.

         A. Disclosure and Improper Use of Confidential Information

         Generally speaking, Rules 1.6, 1.8, and 1.9 prohibit an attorney from disclosing a current or former client's confidential information or using such information to the client's disadvantage.

         Burnett's main argument for urging disqualification is that there is an irrebuttable presumption that Harris disclosed confidential information to Sanders, Washington, and Dare regarding her representation of Burnett. This argument is based on his reading of In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1347 (5th Cir. 1981).

         In that case, the Fifth Circuit held that when an attorney represents a former client's adversary in a matter substantially related to that former representation, there is a conclusive presumption that the former client disclosed confidential information to the attorney that could be used to the client's disadvantage. 659 F.2d at 1347. It is also presumed that the attorney disclosed the former client's confidences to other attorneys in his or her firm. Id. at 1346.

         Corrugated Container provides no support for Burnett. Harris is not representing any party in this case; she is a witness. The Court cannot presume that Harris disclosed Burnett's confidences to the other attorneys.

         There is also no factual support demonstrating that Harris did so. In fact, all evidence suggests the contrary. During Washington's deposition she was asked whether Harris gave her any insight into Burnett's criminal case after they were subpoenaed for depositions. Docket No. 87-3, at 7. Washington replied that “Harris did not recall the case.” Id. And Harris has provided a sworn statement avowing that she never discussed her defense of Burnett with anyone other than Burnett, “and possibly other employees of the public defender's office at the time of the prosecution.” Docket No. 100, at 3. Likewise, Dare's declaration explains that he “did not discuss with Attorney Harris either (a) her representation of Murphy Burnett in any criminal matters when ...


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