Indiana District Court Denies Motion to Disqualify Lawyer for Plaintiff and Third-Party Defendant

Kim v. Cellco Partnership, Dist. Court, ND Indiana 2015 – Google Scholar:

This case arises out of one misdirected phone call. Robert Kim sued Verizon under the Telephone Consumer Protection Act (TCPA) for calling him to inquire about his roommate’s account. Verizon defended by filing a third party complaint against the roommate, Tosha Tarter, alleging that she lives with Kim and that she provided Verizon with Kim’s phone number for her own Verizon account.

Verizon then moved to disqualify the attorney who represented Kim and Tarter on the ground that there was a conflict of interest in that the interests of Kim and Tarter could be in conflict.

The district court denied the motion to disqualify on the grounds that Verizon lacked standing to bring the motion to disqualify. The court explained that Kim and Tarter consented to the conflict.

“Furthermore, Kim and Tarter have produced affidavits stating that they consent to the concurrent representation after being informed of the potential conflict. (DE 36-1 to 36-2). “Any argument for [Cueller’s] disqualification is weakened further where, as here, the party that Rule 1.7 is designed to protect—[Cueller’s] client—has decided that the benefits of [her] representation outweigh whatever detriment [the concurrent representation] may present.” Mills, 992 F. Supp. 2d at 894; see also Tizes, 1997 WL 116797, at *2 (“Even if some kind of conflict did exist, it would have a negative effect on plaintiffs, not defendants. Yet plaintiffs have consented to the representation . . . after painfully full disclosure of any conceivable conflict….”). Thus, even if Cueller is not “ideally situated” to serve as both Kim’s and Tarter’s counsel in this case, Verizon “has not shown us that the ends of justice compel an intervention to disqualify [Cueller] and frustrate [Kim’s and Tarter’s] right to a representative of [their] own choosing.” Mills, 992 F. Supp. 2d at 894; see, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014)(TCPA case arising out of autodialed debt collection calls in which plaintiff and his housemate, who was named as a third-party defendant, were represented by the same counsel).”

Edward X. Clinton, Jr.

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