Bleacher v. Bose ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BONITA BLEACHER,
Plaintiff,
V. C.A. NO. N16C-10-178 CEB
)
)
)
)
)
)
BIKASH BOSE, M.D., )
CHRISTIANA CARE HEALTH )
SERVICES, INC., a Delaware )
Corporation and NEUROSURGERY )
CONSULTANTS, P.A., )
)
)
Defendants.
Submitted: April 19, 2017
Decided: May 3, 2017
Defendant Bikash Bose, MD. ’s
Motz``on to Disqualzfv Plaintijj"s Counsel.
GRANTED.
Robert J. Leoni, Esquire, SHELSBY & LEONI, Stanton, Delaware. Attorney for
Plaintiff.
Dawn C. Doherty, Esquire, Norman H. Brooks, Esquire and Brett Norton, Esquire,
MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, P.C., Wilmington,
Delaware. Attorneys for Defendants Bikash Bose, M.D. and Neurosurgery
Consultants, P.A.
Richard Galperin, Esquire and Ryan T. Keating, Esquire, MORRIS JAMES, LLP,
Wilmington, Delaware. Attorneys for Christiana Care Health Services, Inc.
BUTLER, J.
In this case, Plaintiff Bonita Bleacher (“Plaintiff’), represented by Robert
Leoni, Esq. (“Leoni”) of the law firm of Shelsby & Leoni has sued Doctor Bikash
Bose, M.D. (“Bose”) for medical negligence. Discovery has not yet commenced
Bose, through his counsel, has filed a motion to disqualify Plaintiffs chosen
law firm. Bose alerts us that Leoni’s partner, Gilbert Shelsby, Esq. (“Shelsby”)
previously represented Bose in defense of a medical malpractice action captioned
McCusker v. Neurosurgery, PA.[ We are told that the McCusker case, filed in
2001, Was litigated through trial in 2005 and resulted in a $3.6 million verdict
against Doctor Bose. Shelsby represented Bose throughout the litigation and Was,
and remains, a law partner With Leoni. Bose says it is “beyond the pale for a firm
to achieve an unsuccessful trial result and then sue their client for that result.”2
In defense of his position that this does not present a conflict of interest,
Leoni states that he never met Bose, did not participate in his representation in the
McCusker matter and none of the current staff at Shelsby & Leoni - except for
Shelsby - had any involvement With the McCusker case.
Leoni’s relies heavily on a DelaWare Superior Court opinion bearing
remarkable similarities to the instant dispute. In Fernandez v. St. Francis Hospital,
Inc., the plaintiff, represented by Gilbert Shelsby, sued a Doctor Wiercinski for
1 The litigation Was filed in U.S. District Court in DelaWare. l:01-cv-0089l-KAJ .
2 Def. Motion at 2.
medical malpractice Doctor Wiercinski had been represented in a previous
medical malpractice action by Shelsby.3 On Wiercinski’s motion to disqualify
Shelsby from continued representation of the Plaintiff in the action against his
former client, the Court ruled that since both actions Were medical negligence
actions, there Was a “substantial relationship” between the prior representation and
the contemplated relationship, and Shelsby Was therefore precluded from
representing Fernandez.
None of this is particularly provocative as far as it goes. The McCusker case
and this case are both medical negligence matters, there seems little doubt that,
since the McCusker case Went through full discovery and trial, Shelsby Would have
been exposed to client confidences connected With Bose’s medical practices.
Leoni does not seriously argue otherwise.4
But the Court in Fernandez Went a step further. Commenting that “neither
party has submitted compelling arguments on this issue,” the Court stepped into
the thorny question of “imputed disqualification” of the Shelsby & Leoni law firm
and noted that “Rule l.lO(c) carves out an exception to imputed disqualification
3 2009 WL 2393713 (Dei. super Aug. 3, 2009).
4 Leoni argues that Shelsby Would not be conflicted in representing the plaintiff here because the
previous representation of Bose Was a long time ago. He points to no case suggesting there is a
temporal limit to the conflict and even if there Was, it is hard to imagine it Would save his
argument here. Notably, he does not even argue that confidential communications Were not
shared between Bose and Shelsby during his representation in McCusker. The Rule, and the
Court, presumes there Were such communications and that is as far as the “substantial
relationship” question need go.
2
when “the personally disqualified lawyer is timely screened from any participation
in the matter.”5 In light of the exception in subsection (c), the Court held that
Shelsby could essentially pass off the representation to his partner Leoni and so
long as they undertook to screen off any likelihood of confidential information
being shared, Leoni could represent the plaintiff in a case where Shelsby could not.
Here, Shelsby and Leoni have tendered affidavits to the Court promising to
keep Shelsby’s McCusker confidences in confidence. They promise a “cone of
silence” to wall off client confidences.6 Leoni says that is all that is required
under Fernandez, the case with which he and his firm have such familiarity
The Court has taken a long look at the Fernana’ez decision. With due
respect to our learned brothers and sisters on the bench, who, like the Court in
Fernandez, labor under the difficulty of parties who do not always “submit
937
compelling arguments on the issues, we think Ferncma'ez incorrectly applied
Rule l.lO(c) instead of Rule l.lO(a).
5 Fernandez, 2009 WL at *5.
6 The Court presumes that the proposed “cone of silence” is not the one used by Max and the
Chief`` for “secret” communications In 5 seasons, that cone ncver worked. See Get Smart (NBC
television broadcast 1965-1970). A better functioning “cone of silence” does indeed have some
currency in cases arising under Rule l.lO(c). See generally Nemours Foundation v. Gilbane,
Aetna, Federal Ins. C0., 632 F. Supp. 418, 428-29 (D. Del. 1986).
7 Fernandez, 2009 WL at *4.
The Delaware Lawyers’ Rules of Professional Conduct, Rule l.lO deals with
“Imputation of Conflicts of Interest: General Rule.” Rule l.10(a) states that:
Except as otherwise provided in this rule, while lawyers are associated
in a firm, none of them shall knowingly represent a client when any
one of them practicing alone would be prohibited from doing so by
Rules l.7 or l.9, unless the prohibition is based on a personal interest
of the prohibited lawyer and does not present a significant risk of
materially limiting the representation of the client by the remaining
lawyers in the firm.8
So, it is clear that if Shelsby would be barred from representation of the
Plaintiff in this matter, his firm is likewise barred. This “imputed conflict” is
firmly embedded in Delaware law. And it is quite clear that given his prior
representation of the Defendant in this lawsuit, Shelsby would be barred from
representing the Plaintiff here. As noted above, Leoni does not seriously argue
otherwise.
Rule l.lO has two exceptions to the general rule of imputed disqualification:
l) when a lawyer leaves his firm, the firm can represent clients adverse to the
former lawyer’s clients, Subject to some limits, and 2) when a lawyer arrives at a
new firm after a case has been filed where the new lawyer has a conflict with the
ongoing representation
Rule l.lO(c), relied on by the Court in Fernandez, says:
8 Del. Lawyers' R. Prof. Conduct Rule l.lO.
(c) When a lawyer becomes associated with a firm, no lawyer
associated in the firm shall knowingly represent a client in a matter in
which that lawyer is disqualified under Rule l.9 unless:
(l) the personally disqualified lawyer is timely screened f``rom
any participation in the matter and is apportioned no part of the fee
therefrom; and
(2) written notice is promptly given to the affected former
client.9
The important distinction between Rule l.lO(a) and l.lO(c) - aside from the
fact that they apply to different situations - is that Rule l.lO(c) provides a
mechanism for the firm to continue the “conf``licted” representation by screening off
the new lawyer. That is the remedy applied in Fernanclez. But that remedy is not
available for conflicts arising under Rule l.10(a). Here, Shelsby and Leoni were
partners during the previous representation of Bose and they continue to be
partners in this lawsuit against Bose. The remedy of “screening off’ applies only
in the case of a migrating attorney under Rule l.10(c), not in cases of a long
standing partnership, which are governed by Rule l.lO(a).
Having dissected these rules, the outcome is obvious: Shelsby would have a
conflict in representing the Plaintiff in this action pursuant to the “substantial
relationship” test of Rule l.9. As such, his law partner Leoni is equally conflicted
by application of Rule l.lO(a).
9 Del. Lawyers' R. Prof. Conduct Rule l.lO(c) (emphasis added).
5
Defendant’s motion is therefore GRANTED. Attorney Leoni should
counsel the Plaintiff on getting new representation Barring the filing of a
substitution of counsel, the Court would ask that Mr. Leoni advise the Court in
writing in 45 days of the status of the client’s efforts.
Judge %les E. Butl%r/