United States District Court, D. Nevada
VALERIE P. COOKE, Magistrate Judge.
Before the court is defendants' United Government Security Officers of America and United Government Security Officers of America, Local 283 motion to disqualify plaintiffs' counsel (#47). Plaintiffs opposed (#75), and defendants replied (#78). For the reasons discussed below, defendants' motion is denied.
I. FACTUAL & PROCEDURAL BACKGROUND
On April 3, 2013, plaintiffs Isaac Avendano and Rolando Duenas ("plaintiffs") filed a complaint against Security Consultants Group, Inc., Paragon Systems, Inc., Securitas Security Services USA, Inc. ("corporate defendants") and United Government Security Officers of America, International Union and United Government Security Officers of America, Local 283 ("union defendants") (#1). In their amended complaint, filed on February 14, 2014, plaintiffs allege that defendants have engaged in retaliation, harassment, and discrimination, and created a hostile work environment due to plaintiffs' race and national origin in violation of Title VII of the Civil Rights Act of 1964 (#58, p. 2). They also allege breach of contract under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, as well as 42 U.S.C. § 1981 and Nevada state-law claims. Id.
As to the union defendants only, plaintiffs allege that they breached their duty of fair representation of plaintiffs, who were union members, pursuant to NLRA § 301. Id. at 53-57. Plaintiffs allege that they held positions as federal court security for the corporate defendants. Id. Following a disciplinary incident, the corporate defendants suspended them without pay; they grieved the employers' actions, and the union defendants represented them in an arbitration with the corporate defendants. Id. In a July 24, 2012 arbitration award, the arbitrator ordered plaintiffs be reinstated to their previous posts and receive back pay. Id. The union defendants breached their duty to fairly represent plaintiffs when they failed to pursue the enforcement of the arbitration award. Id. The union defendants delayed the recovery of plaintiffs' back pay and failed to seek recovery of the full amount of back pay, lost overtime, compensatory time and all other related compensation to which plaintiffs were entitled. Id. The union defendants failed to challenge the employers' position that any post assignment, regardless of the location, duties, shift, schedule and seniority, was acceptable and in compliance with the award. Id. Plaintiffs seek compensatory and punitive damages. Id. at 59-60.
On January 17, 2014, the union defendants filed a motion to disqualify John A. Tucker Co., LPA ("Tucker"), plaintiffs' counsel (#47). They state that Tucker represented the union defendants in 2011 and 2012 in the arbitration of the grievances the union defendants filed on behalf of plaintiffs. Id. at 3. Therefore, they argue that the Nevada Rules of Professional Conduct prohibit Tucker from now representing plaintiffs against the union defendants. Id.
II. LEGAL STANDARDS
Local Rule IA 10-7 provides that an attorney admitted to practice in the District of Nevada shall adhere to the standards of conduct prescribed in the Nevada Rules of Professional Conduct ("NRPC"), unless modified by this court. Thus, the NRPC generally govern the disqualification of an attorney appearing before this court. See In re County of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000); Ipatt Group, Inc. v. Scotts Miracle-Gro Co., 2013 WL 3043677 *5 (D. Nev. 2013). NRPC 1.9(a) provides that "a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." For a potentially disqualifying conflict to exist, the party seeking disqualification must establish three elements: (1) that it had an attorney-client relationship with the lawyer, (2) that the former matter and the current matter are substantially related, and (3) that the current representation is adverse to the party seeking disqualification. Nevada Yellow Cab Corp. v. Eighth Judicial Dist. Court, 152 P.3d 737, 741 (Nev. 2007).
The Nevada Supreme Court has recognized that "[i]n proving that a prior representation is substantially related to present litigation, however, the moving party is not required to divulge the confidences actually communicated, nor should a court inquire into whether an attorney actually acquired confidential information in the prior representation which is related to the current representation. The court should instead undertake a realistic appraisal of whether confidences might have been disclosed in the prior matter that will be harmful to the client in the later matter." Waid v. Eighth Judicial Dist. Court, 119 P.3d 1219, 1222-1223 (Nev. 2005) (internal quotations and citations omitted). That court further determined that a superficial similarity between the two matters is insufficient and that "the focus is properly on the precise relationship between the present and former representation." Id. at 1223. The Nevada Supreme Court adopted a test that requires that the district court: (1) make a factual determination concerning the scope of the former representation; (2) evaluate whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters; and (3) determine whether that information is relevant to the issues raised in the present litigation. Id.
Finally, if a potentially disqualifying conflict exists, the court must consider a variety of factors before granting a motion for disqualification, including: (1) whether the moving party not only "establish[ed] at least a reasonable possibility that some specifically identifiable impropriety did in fact occur, " but "that the likelihood of public suspicion or obloquy outweighs the social interests which will be served by a lawyer's continued participation in a particular case;" (2) "balanc[ing] the prejudices that will inure to the parties as a result of its decision, " and (3) imposing disqualification "only after a careful consideration of the client's right to be represented by the counsel of his choice, and the nature and extent of the ethics violation." Brown v. Eighth Judicial Dist. Ct., 14 P.3d 1266, 1270 (Nev. 2000) (abrogated on other grounds by State v. Eighth Judicial Dist. Ct., 321 P.3d 882, 885 (Nev. 2014) (internal citations and quotation marks omitted); see also Palmer v. Pioneer Hotel & Casino, 19 F.Supp.2d 1157, 1162 (D. Nev. 1998).
III. DISCUSSION & ANALYSIS
In their motion to disqualify Tucker, union defendants state that Tucker acted as general counsel for United Government Security Officers of America ("UGSOA") for almost thirteen years, until May 2012, and Tucker represented the union defendants in the arbitration of the grievances filed on behalf of plaintiffs when they were terminated (#47, p. 3). They argue that plaintiffs' claims in this case are based on those grievances and the arbitration award. Id. Union defendants gave Tucker the entire file that they had compiled regarding that case. Id . The file contained confidential information and confidential communications with the plaintiffs, witnesses, and union officials. Id. Tucker and Rachel Baldridge-another attorney with the Tucker firm-were solely responsible for preparing the case and presenting it to the arbitrator at the five-day hearing. Id. Union defendants provided confidential information in the form of Local 283 internal documents, discussions with Local 283 President Tim Reynolds, UGSOA confidential documents and discussions with UGSOA employees. Id. Tucker and Baldridge created the majority of the confidential information regarding plaintiffs' grievances and arbitration, including legal strategy and notes. Id. at 3-4. The union defendants contend that the former matter and the current matter are substantially related, and disqualification is warranted. Id. at 6.
The parties do not dispute that Tucker previously represented the union defendants and that Tucker currently represents parties whose interests are adverse to the union defendants. Union defendants next argue that the factors laid out by the Nevada Supreme Court in Waid- (1) a factual determination concerning the scope of the former representation; (2) an evaluation of whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters; and (3) a determination of whether that information is relevant to the issues raised in the present litigation-compel the conclusion that the two matters are substantially related. Id. at 7. The union defendants state that Tucker had access to confidential information, had sole control over the preparation of the plaintiffs' cases, and that he then appeared on behalf of plaintiffs and union defendants at the grievance arbitration. Id. at 8. Plaintiffs now allege that union defendants breached their duty to enforce the award, and union defendants contend that "[t]here can be no question that the two cases are related." Id. Union defendants attach the sworn affidavits of Desiree Sullivan, United Government Security Officers of America, International Union ("UGSOAIU") President; Michael Burke, UGSOAIU Regional Director; and Tim Reynolds, an officer with Local 283 (#47, Ex.'s 1-3). Each affiant states that the union defendants provided Tucker with the entire file related to the grievances and arbitration, that the Tucker firm had complete authority and responsibility to prepare the case and conduct the arbitration hearings, and that he or she had "confidential communications" with Tucker and Baldridge regarding that case. Id
In their opposition, plaintiffs do not dispute that their current counsel, Tucker, along with Baldridge, prepared for and conducted plaintiffs' arbitration on behalf of the union defendants on January 27-28, 2012 and April 13-15, 2012 (#75, p. 2). However, plaintiffs contend that, despite a superficial similarity, the prior and current matters are not substantially related. Id. Plaintiffs' position is that the issue in the arbitration was whether plaintiffs and a third grievant were terminated for just cause in December 2010, pursuant to the Collective Bargaining Agreement ("CBA") between the union defendants and defendant Security Consultants Group. Id. The Tucker firm represented the plaintiffs and union defendants at the arbitration hearing, which occurred over the five dates indicated above. Id. Apparently at the union defendants' direction, the Tucker firm's involvement ceased on May 11, 2012, and union defendants-through other counsel-finalized and filed their post-hearing brief in June 2012. Id. at 9. On July 25, 2012, the arbitrator issued a sixtyone-page arbitration award that discussed the evidence presented about the discipline imposed and found that the terminations were not for just cause (#75, Ex. 1). At the conclusion of the order, the arbitrator directs that the "Employer shall offer to reinstate each of the Grievants to a comparable position in the Reno, Nevada area and shall make ...