United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
CANDY W. DALE, Magistrate Judge.
Before the Court is Plaintiff's Objection to the Appearance of Joseph D. Mallet as counsel for Defendant. (Dkt. 185.) The Court construes the motion as a motion to disqualify counsel. The motion is fully briefed, and the Court conducted a telephonic hearing on the motion on April 1, 2015, during which Plaintiff and counsel for Defendant, including Mr. Mallet, participated. A five day jury trial is set to begin on April 27, 2015.
This case stems from the execution of a search warrant obtained via the use of allegedly falsified evidence. Late in the morning of January 6, 2010, Ada County Sheriff's Deputy Stephen Craig presented an affidavit in support of a search warrant for the McNelis residence to an Ada County Magistrate Judge. A search warrant was issued on January 6, 2010, and the search was conducted that same day. During the search, a marijuana grow operation allegedly was observed. McNelis was arrested and charged with various drug-related crimes. Later, the charges against McNelis were dismissed after the state court conducted a suppression hearing.
Plaintiff filed a lawsuit in this Court on January 5, 2012, against Officer Craig, Officer Del Rio, Ada County, and Sheriff Gary Raney, alleging Fourth Amendment violations. After adjudication of several motions to dismiss and a motion for summary judgment, only the judicial deception claim against Officer Craig in his individual capacity remains for adjudication.
Joseph Mallet has been employed at all times mentioned in the amended complaint, and is currently employed, by the Ada County Sheriff's Office (ACSO) as its Chief Legal Advisor. (Dkt. 46-2.) At the conclusion of the criminal proceedings against McNelis and before this lawsuit was filed, Mallet requested that John Lewis investigate the circumstances surrounding the validity of McNelis's allegations that Craig included false statements in his search warrant application leading to McNelis's arrest. (Dkt. 46-2; 186-1.) The purpose for doing so was to allow Ada County and the Sheriff's Office to assess its liability risk in the matter, and defend any lawsuit that may be filed. Id.
Mallet has authored two affidavits, one attesting to the contents of Craig's personnel file and the results of the internal investigation, and the second about the policies and procedures for requesting such an investigation. The first affidavit was signed June 9, 2011, and submitted in support of a motion to reconsider the suppression ruling in state court. (Dkt. 186-1 at 8.) The affidavit summarized the results of the internal investigation, and represented that Mallet had reviewed Craig's personnel file, which indicated an "excellent performance record" with "no prior discipline for any issue related to his truthfulness." (Dkt. 186-1 at 8.) The second affidavit was signed December 10, 2012, and was submitted in this case on April 24, 2013, in support of Defendant's motion for protective order. (Dkt. 46.) The affidavit addressed the report prepared by Mr. Lewis regarding the investigation conducted at Mr. Mallet's request.
Craig currently is represented by four attorneys presently employed by the Ada County Prosecutor's Office. Mallet did not enter an appearance on behalf of Craig or any other defendant until February 3, 2015. (Dkt. 185.) According to the notice, Mallet appears on Craig's behalf as a Special Civil Deputy for the Ada County Prosecutor's Office. (Dkt. 185.) Mallet never entered an appearance on behalf of Sheriff Raney, who was a named defendant until the Court dismissed the Sheriff as a named defendant on January 17, 2013. However, during the hearing on the pending motion, counsel indicated Mallet has assisted as counsel in his capacity as legal advisor for the Sheriff's Office and its employees throughout this lawsuit. For example, Mallet conducted McNelis's deposition in 2013, and other depositions in this matter. McNelis represents that Craig's employment with ACSO ended in October of 2011. During the hearing, counsel also confirmed that Craig is not presently employed with Ada County.
McNelis objects to Mallet's appearance as counsel for Craig for three reasons. First, Mallet signed the above mentioned affidavits. Second, Mallet is listed as a person with "knowledge of events surrounding the claims of the Plaintiffs' complaint" by the Defendants in their Initial Disclosures. Finally, McNelis states that he intends to call Mallet as a witness at trial. McNelis asserts that Mallet is in a "unique position" to testify regarding Mallet's communications with Craig, court documents for and about Craig, and knowledge about ACSO policies and procedures. During the hearing, McNelis indicated he intended to elicit testimony about the basis for the internal investigation of Craig by Lewis, and about statements in Craig's personnel file.
Craig argues the testimony McNelis may seek to introduce from Mallet is not relevant; any communications Craig had with Mallet are protected from disclosure by the attorney-client privilege; and, McNelis has not identified a proper basis for disqualifying Mallet as counsel because Mallet is not a "necessary witness." In response, McNelis argues that Craig should not be able to use the attorney client privilege to prevent discovery of or testimony about relevant information in this case, and that Mallet's representation of Craig may create a conflict of interest with ACSO.
Idaho Rules of Professional Conduct 1.7 (conflict of interest with respect to current client) and 3.7 (lawyer as witness) may be implicated. See Idaho Rules Prof'l Conduct 1.7, ...