By Robert Higgs
Advance Ohio Media
CLEVELAND, Ohio — Lawyers representing the city of Cleveland asked a federal judge Wednesday to disqualify the legal team representing a former fire official who claims in a lawsuit that he was improperly passed over for promotion.
The lawyers accused the Chandra Law Firm of violating the Ohio Rules of Professional Conduct for lawyers by improperly obtaining evidence for former Battalion Chief Sean DeCrane’s lawsuit. Those ethical violations are so severe, their motion states, that the court must disqualify the lawyers and suppress the statements they collected, their motion states.
The Chandra Law Firm, the founder of which is former city law director Subodh Chandra, says it can prove that the allegations in the court filing are not true.
“The city seeks to suppress the truth -- sworn testimony suggesting (Assistant Safety Director Edward) Eckart and the city retaliated against DeCrane because they thought he exercised First Amendment rights,” Chandra said in an interview.
“But the city must now account to taxpayers for why it’s wasting money on outside lawyers in trying to deprive DeCrane of his chosen counsel, by submitting demonstrably false testimony to the court,” Chandra said. “We look forward to disproving these falsehoods in court.”
Dan Williams, a spokesman for Mayor Frank Jackson, said the city’s policy is to not comment on pending litigation.
What’s the lawsuit?
DeCrane sued in 2016 shortly after leaving the fire department. He contends the city passed him over for promotions and targeted him for retaliation based on a mistaken belief that he had leaked damaging and embarrassing information about the department’s former chief at the time, Daryl McGinnis.
McGinnis was reassigned to non-supervisory duty on Aug.1, 2013 after cleveland.com reported he was short of the training hours required as a condition of employment in the city’s fire department. McGinnis resigned two weeks later.
DeCrane contends he warned city officials in January 2013, before McGinnis was named chief, that McGinnis lacked the required training and certification needed to hold his position. But he denies leaking information to the media.
Along with the city, Eckart and two officers from the public safety department’s Office of Integrity Control, James Votypka and Christopher Chumita, were named as defendants.
The court has set a deadline for next week for both sides to request summary judgment.
What’s the city’s accusation?
Lawyers for Zashin & Rich, hired by the city to assist on the case, accuse the Chandra firm of three violations of the Ohio Rules of Professional Conduct that they say are cause for disqualification. The complaints in their motion all center on the collection of statements from current and former fire department employees.
They argue that:
Representatives from the Chandra firm had multiple conversations with former fire Chief Patrick Kelly without instructing him not to disclose privileged communications he may have had with the city’s lawyers. They also improperly provided legal advice to Kelly by asking him to sign a sworn statement about his memory of what happened with DeCrane.
The firm had numerous conversations with city managers, despite instructions from the defense lawyers that those employees should be contacted through the city’s defense lawyers.
The firm has relied on work from a law clerk who interned with Cleveland’s law department in the summer of 2016. During that time, the intern was privy to privileged communications and information directly pertinent to the case, the motion says.
The motion, filed by lawyers Jon Dileno and David Vance, asks U.S. District Judge Christopher A. Boyko to disqualify the Chandra Law Firm from the case and to suppress sworn statements provided by Kelly and four other officers in the fire department.
What’s Chandra firm’s response?
Chandra says the firm has acted appropriately.
To support his claim, Chandra allowed a cleveland.com reporter to listen to excerpts from recordings of the interviews in which the interviewer, clerk Brian Bardwell can be heard telling the witnesses:
- That he is a law clerk with the Chandra firm and that the firm is representing DeCrane.
- That they should not talk about the substance of conversations they may have had with city lawyers.
- That he, the clerk, is not providing legal advice.
An opinion from the Ohio Board of Professional Conduct in 2016 makes clear that lawyers may communicate with certain employees of a corporation (in this case, the city) without the consent of opposing lawyers.
That communication could be prohibited, though, if the employee meets certain qualifications, such as holding a management position or regularly contacting lawyers regarding the subject of the case.
The city employees interviewed by Bardwell all were union members, as was DeCrane, and all held ranks in the fire department at or below DeCrane’s rank of battalion chief, Chandra said.
Also, at least two of the employees -- one of whom was the union president -- were subpoenaed by the city for their depositions and represented by their union’s lawyer -- not the city -- when they spoke.
In an email to the Chandra firm, a lawyer for the union said he had checked with the city and they expressed no hesitation about the Chandra firm interviewing employees.
Those prohibitions do not apply to former employees such as Kelly, the former chief, the opinion says.
The firm acknowledges that Bardwell, who is not yet an attorney, did work in the law director’s office, but cites a provision in the professional standards that it says shows would allow him to work on this case.
The provisions block a lawyer who has represented one client from doing work for another in a substantially related matter. Bardwell’s summer internship involved reviewing public records requests from two years prior to when DeCrane resigned and sued.
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