MICHAEL C. THREATT v. Sylacauga Housing Authority

Anniston, AL - Wrongful Discharge lawyer represented Plaintiff with alleging that each of the Defendants discriminated against him and retaliated against him in violation of various constitutional and federal

statutory rights claim.

Mr. Threatt served at the Chief Executive Officer of the SHA from October

2018 until his termination in October 2019. (Tr. at 28, 31; Doc. 31 at ¶ 28). Mr.

Threatt was responsible for coordinating the SHA's day-to-day operations and

overseeing public housing management, maintenance, development, and

construction. (Tr. at 57; Doc. 31 at ¶ 24).

In February 2019, Mr. Threatt learned that the U.S. Department of Housing

and Urban Development ("HUD”) had identified the SHA as high-risk for

segregation in its housing programs. (Tr. at 28). In response, and in his capacity as

SHA CEO, Mr. Threatt contacted Mr. Rice and another attorney, April Collins, to

ask whether they could provide a civil rights and fair housing assessment for the

1 A court reporter was present, and a transcript is available upon request. Throughout this

opinion, the court cites to the draft transcript as Tr. with the corresponding page number(s).

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SHA. (Tr. at 32–33, 137–41; Doc. 79-1 at 1). The intended purpose of the

assessment was to help the SHA correct the deficiencies identified by HUD and

ensure compliance going forward. (Id.). The SHA wanted Mr. Rice to handle the

civil rights portion of the assessment, and Ms. Collins to work on the fair housing

portion of the assessment. (Tr. at 137 ; Doc. 79-1 at 1, 5).

Mr. Threatt, Mr. Rice, and Ms. Collins met in early March 2019 to review Mr.

Threatt's request and to tour the City of Sylacauga and some of the properties that

the SHA manages. (Tr. at 33–34, 140–41; Doc. 79-1 at 4). During this meeting, the

three discussed fair housing laws and how the SHA could address the identified

segregation issue through an assessment that would create a plan to improve quality

of life and civil rights issues. (Tr. at 34, 128–29,140, 144–45).

About a week after the tour, Mr. Rice emailed Mr. Threatt and thanked him

for the opportunity "to provide the civil rights assessment for your Housing

Authority.” (Doc. 79-1 at 9). Mr. Threatt forwarded a copy of Mr. Rice's email to

two other SHA employees and explained that the email was "from the Civil Rights

attorney.” (Doc. 80-1 at 1).

Several days later, Mr. Threatt emailed a draft scope of work for the fair

housing and civil rights assessment to Mr. Rice and Ms. Collins. (Doc. 79-1 at 11;

see also Doc. 80-2 at 3–8). Mr. Rice and Ms. Collins expressed doubts about

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completing the scope of the work with the limited budget available for the

assessment. (Doc. 80-2 at 1–2).

Mr. Threatt responded to Mr. Rice and Ms. Collins and stated that a proactive

assessment and plan for both Fair Housing and Civil Rights was cost-effective and

promised to "have more information soon” after he had an opportunity to follow-up

with his staff regarding an "administratively feasible scope of work.” (Id. at 1). Mr.

Threatt asked whether Mr. Rice and Ms. Collins could "perform this work for the

SHA” in April 2019. (Id.). Mr. Rice and Ms. Collins confirmed that they could

perform the work they discussed during their tour of Sylacauga. (Doc. 80-2 at 1–

2). There is no evidence that Mr. Rice or Ms. Collins entered a written contract with

the SHA to provide the assessment or that they received any payment from the SHA.

And neither Mr. Rice nor Ms. Collins performed the assessment. (Tr. at 45).

Still, during the spring and summer of 2019, Mr. Threatt emailed several

documents to three SHA employees in which he referred to Mr. Rice as the SHA's

"civil rights attorney” or otherwise identified Mr. Rice's law firm as providing an

assessment for the SHA. (Doc. 80-1 at 1; Doc. 80-4 at 3; Doc. 80-5 at 4; Doc. 80-7

at 3–4). Mr. Threatt also forwarded earlier emails from Mr. Rice and Ms. Collins to

his staff and stated that he needed their help securing Mr. Rice and Ms. Collins for

the assessments. (Doc. 80-9 at 1).

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In July 2019, Mr. Threatt hired Mr. Rice to represent him with respect to a

personal employment dispute with the SHA. (Tr. at 47). Shortly after, Mr. Rice

forwarded an email to Mr. Threatt with the subject line "QUI TAM.” (Doc. 80-10).

The email contained information about "ground-breaking” False Claims Act

litigation regarding allegations that a county falsely certified that it had complied

with its responsibility under the Fair Housing Act to affirmatively further fair

housing in order to receive HUD funding. (Id. at 1).

In early September 2019, the SHA placed Mr. Threatt on administrative leave

(doc. 31 at ¶ 87–89), and Mr. Rice sent a letter to Commissioners Hubbard, Morris,

Cook, Lozito, and Adams explaining that he represented Mr. Threatt with respect to

his employment with the SHA (doc. 56-8).

The SHA terminated Mr. Threatt's employment in late October 2019. (Tr. at

28). In January 2020, Mr. Rice, on behalf of Mr. Threatt, filed this lawsuit against

the SHA, alleging that the SHA discriminated and retaliated against him in violation

of Title VII, the False Claims Act, and the Fair Housing Act when it terminated his

employment. (Doc 1). With leave of court, Mr. Threatt filed an amended complaint

that added claims against SHA Commissioners Adams, Cook, Hubbard, Lozito, and

Morris and Sylacauga Mayor Jim Heigl. (Doc. 31).

The amended complaint alleges that Mr. Threatt suffered personal race

discrimination and retaliation in the workplace. (Doc. 31 at ¶¶ 43, 54.a–b, 59, 61,

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106–110, 157–58). The amended complaint also alleges that Mr. Threatt reported

to the SHA Board of Commissioners and various outside local and federal agencies

concerns about alleged fraudulent billing practices, discriminatory housing

programs, the SHA's high risk for segregation, and his belief that the SHA's use of

federal funds did not comply with Fair Housing Act and HUD reporting and

recording requirements. (Doc. 31 at ¶¶ 43–44, 55–57, 71–73, 82–85). According to

the amended complaint, the SHA placed Mr. Threatt on leave and terminated his

employment after he reported these issues. (Doc. 31 at ¶¶ 55–57, 71–73, 82–83, 87,

98, 129–139, 142–155) .

The amended complaint asserts the following counts: (1) race discrimination

in violation of Title VII and § 1981, via § 1983, against the SHA; (2) race retaliation

in violation of Title VII and § 1981, via § 1983, against the SHA; (3) retaliation in

violation of the Fair Housing Act against the SHA; (4) retaliation in violation of the

False Claims Act against the SHA; and (5) § 1983 race discrimination against SHA

Commissioners Adams Cook, Hubbard, Lozito, and Morris and Mayor Heigl. (Doc.

31 at 23–30).

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II. DISCUSSION

Two sources of authority govern motions to disqualify. Herrmann v.

Gutterguard, Inc., 199 F. App'x 745, 752 (11th Cir. 2006) (per curiam).2

"First,

attorneys are bound by the local rules of the court in which they appear.” Id. The

Alabama Rules of Professional Conduct and the American Bar Association Model

Rules of Professional Conduct, when not inconsistent with the Alabama Rules,

govern the conduct of attorneys who appear in this court. See N.D. Ala. R. 83.1(f).

Second, federal common law "governs attorneys' professional conduct because

motions to disqualify are substantive motions affecting the rights of the parties.”

Herrmann, 199 F. App'x at 752.

"The party moving to disqualify counsel bears the burden of proving the

grounds for disqualification.” In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir.

2003). "Because a party is presumptively entitled to the counsel of his choice, that

right may be overridden only if 'compelling reasons' exist.” Id. One of those

compelling reasons is a violation of applicable rules of professional conduct. See

Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997). Where a

party seeks disqualification based on an alleged ethical violation, "[t]he court must

2 Herrmann is an unpublished opinion; "[u]npublished opinions are not considered binding

precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2. The court cites and

relies on Herrmann for its persuasive value.

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clearly identify a specific Rule of Professional Conduct which is applicable to the

relevant jurisdiction and must conclude that the attorney violated that rule.” Id.

"Disqualification is a harsh sanction, often working substantial hardship on the

client,” and "should be resorted to sparingly.” Norton v. Tallahassee Mem'l Hosp.,

689 F.2d 938, 941 n.4 (11th Cir. 1982)

Defendants argue that the court should disqualify Mr. Rice because he

formerly represented or currently represents the SHA on "civil rights” issues, and he

has "switched sides” to represent Mr. Threatt in this action, in violation of Alabama

Rules of Professional Conduct 1.9 and 1.7 and their Model Rules counterparts.

(Doc. 57 at 2). The court considers each set of rules in turn.

1. Rule 1.9

Defendants ask the court to disqualify Mr. Rice because they claim he

previously represented the SHA, and his representation of Mr. Threatt in this action

violates Rule 1.9 of the Alabama Rules of Professional Conduct and the Model Rules

regarding conflicts of interest involving former clients. (Doc. 57 at 12–21).

Alabama Rule of Professional Conduct 1.9 provides that "[a] lawyer who

formerly represented a client in a matter shall not” then "[r]epresent another person

in the same or a substantially related matter in which that person's interests are

materially adverse to the interests of the former client, unless the former client

consents after consultation” or "[u]se information relating to the representation to

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the disadvantage of the former client” except as certain rules permit or require "or

when the information has become generally known.” Ala. Rules of Prof'l Conduct

R. 1.9(a)-(b).

Model Rule 1.9 similarly prohibits an attorney "who has formerly represented

a client in a matter” from representing another person "in the same or a substantially

related matter in which that person's interests are materially adverse to the interests

of the former client unless the former client gives informed consent, confirmed in

writing” and from "us[ing] information relating to the representation to the

disadvantage of the former client” except as allowed by the Model Rules "or when

the information has become generally known.” Model Rules of Prof'l Conduct R.

1.9(a), (c).

A former client seeking disqualification under Rule 1.9 must show that it had

an attorney-client relationship with the attorney it seeks to disqualify, and that the

attorney represented the former client in a substantially related matter. Ex parte

Tiffin, 879 So. 2d 1160, 1165 (Ala. 2003). If—and only if—a former client

demonstrates that the previous and current representation is substantially similar,

then the former client is entitled to an irrebuttable presumption "that relevant

confidential information was disclosed during the former period of representation.”

Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999); see id. at 859–60

("[U]pon a showing of substantial relatedness, we presume that the former client

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. . . divulged to the lawyer . . . all of his or her confidences relevant to the subject of

the representation.”) (emphasis added).

As explained below, the question of whether Mr. Rice had an attorney-client

relationship with the SHA is a close call. But even if Mr. Rice had an attorney-client

relationship with the SHA, Defendants have failed to satisfy their burden of showing

that any previous representation is substantially related to this action. And because

Mr. Rice did not represent the SHA in a substantially related matter, the court does

not presume that Mr. Threatt disclosed relevant confidential information to Mr. Rice

as part of the previous representation.

a. Attorney-Client Relationship

"To create an attorney-client relationship, there must be an employment

contract 'either express or implied' between an attorney and the party for whom he

purports to act or someone authorized to represent such party.” Mississippi Valley

Title Ins. Co. v. Thompson, 802 F.3d 1248, 1253 (11th Cir. 2015) (quotations

omitted). "In this context, the perception and intent of the putative client as to the

formation of that contract is particularly relevant.” Id.

But an attorney-client relationship may exist before a client formally hires an

attorney because a "fiduciary relationship extends to preliminary consultation by a

prospective client with a view to retention of the lawyer, although actual

employment does not result.” Green v. Montgomery Cnty., 784 F. Supp. 841, 845

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(M.D. Ala. 1992) (quotations omitted). Thus, the "existence of an express contract

of employment, or the payment of legal fees, or the length of the consultation” is not

dispositive. Id. Instead, the test for determining the existence of an attorney-client

relationship is subjective and "hinges upon the client's belief that he is consulting a

lawyer in that capacity and his manifested intention is to seek professional legal

advice.” Id. at 845–46.

Although the record contains no evidence that the SHA formally hired Mr.

Rice or paid him any fees, the evidence demonstrates that Mr. Threatt, in his capacity

as SHA CEO, subjectively intended to seek professional legal advice from Mr. Rice

for purposes of providing the SHA with a civil rights assessment. Mr. Threatt

contacted Mr. Rice and met with him for an initial discussion about the scope of

work that Mr. Threatt hoped Mr. Rice would perform as part of his civil rights

assessment for the SHA. (Tr. at 32–33). After Mr. Rice expressed hesitation about

the initial scope of work, Mr. Threatt agreed that a cost-effective approach was

desirable, promised to get more information, and asked whether Mr. Rice could

"perform this work for the SHA.” (Doc. 80-2 at 1). Mr. Rice confirmed that he could

perform the work discussed during the March meeting. (Id.) Consistent with Mr.

Threatt's promise to provide "more information,” in July 2019, emailed his

executive staff and requested their help securing Mr. Rice for the assessment. (Doc.

80-9 at 1).

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Mr. Threatt's subjective intent to engage Mr. Rice as an attorney for the SHA

also is evidenced by a number of other emails that Mr. Threatt sent to members of

his executive staff. On multiple occasions during the spring and summer of 2019,

Mr. Threatt frequently referred to Mr. Rice or the Rice Law Firm as the SHA's "civil

rights attorney” in communications to other SHA employees. (Doc. 80-1 at 1; Doc.

80-4 at 3; Doc. 80-5 at 3–4; Doc. 80-6 at 5; Doc. 80-6-6 at 3–4).

Whether this evidence demonstrates that Mr. Rice had an attorney-client

relationship with the SHA is a difficult question. The record shows that Mr. Threatt

manifested an intention to consult Mr. Rice in his capacity as an attorney to conduct

a civil rights assessment on behalf of the SHA and that Mr. Threatt subjectively

considered Mr. Rice to be the SHA's "civil rights attorney.” But the record also

shows that limited initial discussions about the civil rights assessment did not

materialize into a formal agreement about the scope of the work, and the work was

not done.

Ultimately, whether there was an attorney-client relationship is not dispositive

because as explained below, Defendants cannot show that any prior representation

is substantially related to Mr. Rice's representation of Mr. Threatt in this lawsuit.

Therefore, the court assumes without deciding that Mr. Rice and the SHA had an

attorney-client relationship.

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b. Mr. Rice's Previous Representation is not Substantially Related

to This Action

When determining whether prior and present matters are substantially related,

the focus of the court's inquiry "'should be on the precise nature of the relationship

between the present and former representations.'” Herrmann, 199 F. App'x at 752

(quoting Duncan v. Merrill Lynch, 646 F.2d 1020, 1029 (5th Cir. Unit B 1981)3

,

overruled on other grounds, Gibbs v. Paluk, 742 F.2d 181 (5th Cir. 1984)). "[T]he

[substantial relationship] test entails inquiry into the similarity between the factual

situations, the legal issues posed, and the nature and extent of the attorney's

involvement to see if information from the prior representation is material to the new

representation.” Ex parte Regions Bank, 914 So. 2d 843, 848 (Ala. 2005)

(quotations omitted)

"The court can only determine if the substantial relationship test has been met

'when the moving party delineates with specificity the subject matters, issues, and

causes of action presented in former representation.'” Hermann, 199 F. App'x at 753

(quoting Cox v. Am. Cast Iron Pipe Co., 847 F.2d 725, 730 (11th Cir. 1988)).

"'Merely pointing to a superficial resemblance between the present and prior

representations'” will not suffice. Ex parte State Farm Mut. Auto. Ins. Co., 469 So.

2d 574, 575–76 (quoting Duncan, 646 F.2d at 1029). "The moving party has to show

3 Decisions from a Unit B panel of the former Fifth Circuit are binding in the Eleventh

Circuit. See Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

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more than the mere fact that as a result of a former representation, the attorney has

knowledge of the moving party's practices and procedures.” Herrmann, 199 F.

App'x at 753. Instead, "[t]he moving party must demonstrate that the attorney 'has

knowledge of the particular practices and procedures which are the subject matter of

[the] suit.'” Id. (quoting Duncan, 646 F.2d at 1032).

Defendants have not met their burden of showing that Mr. Rice's prior

representation is substantially similar to Mr. Threatt's lawsuit.

The gist of Defendants' first argument is that Mr. Threatt's intention that Mr.

Rice would assess the SHA's "civil rights” issues necessarily means that that the

scope of work that Mr. Rice agreed to perform includes the "civil rights” claims that

Mr. Threatt now asserts against the SHA in this action. (Doc. 57 at 17–19). This

claim is an improper "blanket assertion,” see Ex Parte Regions Bank, 914 So. 2d at

849, that does not identify with any specificity any similarity between the facts and

legal issues surrounding the "civil rights” assessment that Mr. Rice was to perform

and the claims in this action.

Defendants' reliance on the information contained in the draft scope of work

that Mr. Threatt emailed to Mr. Rice (see doc. 57 at 18–19 & n.5) does not assist

them either. Defendants maintain that the draft scope of work contemplates an

analysis of racial concentrations and disparities in the SHA's public housing

offerings which they claim is related to Mr. Threatt's allegation in this action that

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the SHA retaliated against Mr. Threatt after he told Board members that the SHA

"'was engaging in unlawful housing practices that resulted in discrimination and

segregation'” and after he reported "'discriminatory housing practices.'” (Doc. 57

at 18, quoting Doc. 31 at ¶¶ 129, 135).

But this argument overlooks that Mr. Rice expressed concern with the initial

scope of work, did not agree to provide the assessment outlined in the initial scope

of work, and in fact, never actually performed a civil rights assessment for the SHA.

Therefore, to the extent the draft of scope of work identifies some topics for analysis

that generally overlap with any of Mr. Threatt's allegations in this case, the draft

scope of work does not show that the matters are substantially related because Mr.

Rice rejected the draft scope of work and never completed the tasks outlined in the

document. In this regard, the court is mindful that the extent of an attorney's

involvement bears on the determination of whether a matter is substantially related.

Although Mr. Rice and Mr. Threatt had preliminary discussions about a potential

"civil rights” assessment for the SHA, the work was not performed. Thus, the

evidence does not demonstrate that Mr. Rice "was so involved in the [previous]

matter that the subsequent representation can be justly regarded as a changing of

sides in the matter in question.” Ala. Rules of Prof'l Conduct R. 1.9 cmt.

Defendants also posit that because Mr. Threatt and Mr. Rice discussed

"housing segregation” during their initial meeting, any claims based on the

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allegation that the SHA retaliated against Mr. Threatt for complaining about

segregated or discriminatory housing is substantially related to Mr. Rice's previous

representation. (Doc. 64 at 7). Defendants' argument again relies on generalities

and does not establish how Mr. Rice's initial consultation and communications with

Mr. Threatt about segregated housing for purposes of a proposed "civil rights”

assessment are central to the legal issues present in Mr. Threatt's current

employment discrimination action.

In addition, Defendants have offered no evidence linking Mr. Threatt's

engagement of Mr. Rice for a "civil rights” assessment to the alleged personal racebased discrimination and retaliation. At best, counsel for Commissioner Cook

attempted to imply a link during the evidentiary hearing (see Tr. 123–27), but the

court rejects any notion that Mr. Threatt's allegations that the SHA and individual

defendants discriminated against him personally because he is African-American are

connected to any purported segregated housing issues with the SHA.

The court also is not persuaded by Defendants' contention that the previous

representation is substantially related to Mr. Threatt's False Claims Act retaliation

claim based on Mr. Rice's email to Mr. Threatt about unrelated False Claims Act

litigation. (See Doc. 57 at 18). The evidence in the record demonstrates that Mr.

Rice's civil rights assessment would have focused on correcting segregated housing

issues, not the SHA's use of federal funds or any purported false claims that the SHA

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was submitting to the federal government. (Tr. at 28, 32–34, 128–29, 140, 143–45).

Therefore, the court finds that the False Claims Act email does not bear on the Mr.

Rice's previous representation at all.

But even assuming the email is somehow connected to Mr. Rice's prior

representation, the summary of the lawsuit described in Mr. Rice's email does not

present the same legal issue or claim that Mr. Threatt asserts against the SHA. The

lawsuit described in the email concerned a relator's False Claims Act action against

a county based on allegations that the county obtained federal funds from HUD and

other governmental agencies by falsely certifying that it had complied with certain

obligations under the Fair Housing Act. (Doc. 56-7 at 1–2). Mr. Threatt has not

accused the SHA of obtaining federal funds under false pretenses. Rather, Mr.

Threatt claims that the SHA retaliated against him for reporting and opposing what

he believed to be fraudulent billing practices based on misappropriation of federal

funds and other improper spending. (Doc. 31 at ¶ 141–156). Therefore, the email

does not demonstrate that Mr. Rice's previous representation of the SHA is

substantially related to his representation of Mr. Threatt in this action.

Finally, Defendants submit that Mr. Threatt spoliated evidence by deleting

emails from his SHA electronic devices, and therefore, they are entitled to an

inference that the emails would demonstrate that the prior and present matters are

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substantially related. (Tr. at 84, 101, 113–14). This argument suffers from multiple

deficiencies.

Defendants attempt to show that Mr. Threatt deleted emails in two ways.

First, they offered testimony from two witnesses during the January 15, 2021

hearing. But neither witness had personal knowledge that Mr. Threatt deleted the

emails, and their testimony established only that there was a "big gap in emails”

between 2018 and 2020, not that Mr. Threatt deleted the emails. (Tr. at 85–94; see

also Tr. at 5–6).

Second, Defendants ask the court to find that Mr. Threatt deleted the emails

through an unanswered request for admission. (Tr. at 76–77, 115). Defendants filed

their motion to disqualify all three of Mr. Threatt's attorneys on October 8, 2020.

(Doc. 55). Then, while the parties were still briefing the motion to disqualify,

Defendants served a request for admission on Mr. Threatt's counsel asking

Mr. Threatt to admit that he "deleted all emails sent to or from

mthreatt@sylacauagha.com for the period March 28, 2018 through September 10,

2019.” (Doc. 81-1 at 1). It is undisputed that Mr. Threatt did not respond to the

request for admission within 30 days. Therefore, by operation of Federal Rule of

Civil Procedure 36(b), the matter is "conclusively established” in the absence of a

motion to withdraw or amend the admission. Fed. R. Civ. P. 36(b).

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The court finds it disingenuous that Defendants would issue requests for

admission to Mr. Threatt's attorneys while seeking their disqualification, and then

use an unanswered request to establish a fact supporting their disqualification. But

even if the court were to find, by operation of Mr. Threatt's unanswered request for

admission, that he deleted emails sent to or from his SHA email address, Defendants

are not entitled to the spoilation inference they seek for purposes of this motion.

Federal Rule of Civil Procedure 37(e) governs the court's analysis of

Defendants' request that the court draw an adverse inference against Mr. Threatt

based on the missing emails. Under Rule 37, if "electronically stored information

that should have been preserved in the anticipation or conduct of litigation is lost

because a party failed to take steps to preserve it” and the information "cannot be

restored or replaced through additional discovery,” the court may "presume that the

lost information was unfavorable to the party,” if the court finds "that the party acted

with the intent to deprive another party of the information's use in the

litigation. . . .” Fed. R. Civ. P. 37(e)(2)(A).

As an initial matter, the undisputed evidence shows that Mr. Rice did not

communicate with Mr. Threatt about any SHA-related business on any personal

email account, and Mr. Rice has provided a complete copy of all emails he sent to

and received from Mr. Threatt's SHA email address. (Tr. at 103–05, 113; see doc.

79-1). The SHA has not explained what emails Mr. Threatt could have exchanged

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with anyone other than Mr. Rice that would show that Mr. Rice's earlier

representation of SHA is substantially related to his current representation of

Mr. Threatt. And the SHA itself has been able to recover some of Mr. Threatt's

emails associated with his SHA account. (Doc. 80-1; Doc. 8-2; Doc. 80-3; Doc. 80-

4; Doc. 80-5; Doc. 80-6; Doc. 80-7; Doc. 80-8; Doc. 80-9; Doc. 80-10). Thus, it

appears that any missing emails relevant to question of whether the previous and

current representation are substantially related can or have been replaced through

other means.

Moreover, assuming Mr. Threatt deleted the emails, Defendants have

presented no evidence suggesting—much less establishing—that Mr. Threatt deleted

the emails "with the intent to deprive [Defendants] of the information's use” in

demonstrating that Mr. Rice's previous representation of the SHA is substantially

related to his representation of Mr. Threatt in this case. Fed. R. Civ. P. 37(e)(2).

Even if Mr. Threatt could have anticipated the need to preserve the emails with

respect to the claims and defenses in this case, there is simply no evidence in the

record showing that Mr. Threatt could have anticipated that Defendants would file a

motion to disqualify his counsel or that Mr. Threatt should have taken reasonable

steps to preserve the emails in connection with such a motion. Therefore, the court

cannot find that he acted with any intent to prevent Defendants from accessing the

emails for purposes of using those emails as evidence in support of their motion to

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disqualify. Accordingly, the court will not draw an adverse inference against Mr.

Threatt that the missing emails would demonstrate that the previous and current

representations are substantially related.

In sum, Defendants have not satisfied their burden of showing that Mr. Rice's

previous representation of the SHA is substantially related to his representation of

Mr. Threatt in this employment discrimination lawsuit. Therefore, Mr. Rice has not

violated Rule 1.9, and the court will not disqualify him on that basis.

2. Rule 1.7

Defendants argue that because there is no record of Mr. Rice terminating his

attorney-client relationship with the SHA before his representation of Mr. Threatt

began, the court should disqualify Mr. Rice for his violation of Alabama Rule of

Professional Conduct 1.7 regarding conflicts of interest involving current clients.

(Doc. 57 at 22–23).

Alabama Rule of Professional Conduct 1.7 states, in relevant part, that "[a]

lawyer shall not represent a client if the representation of that client will be directly

adverse to another client, unless: (1) The lawyer reasonably believes the

representation will not adversely affect the relationship with the other client; and (2)

Each client consents after consultation.” Ala. Rules of Prof'l Conduct R. 1.7(a).

Model Rule 1.7 likewise prohibits—subject to certain exceptions— an

attorney from representing a client if the representation will be "directly adverse” to

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another client or if "there is a significant risk that the representation of one or more

clients will be materially limited by the lawyer's responsibilities to another client, a

former client or a third person or by a personal interest of the lawyer.” Model Rule

of Prof'l Conduct R. 1.7(a)-(b)

A party seeking disqualification of an attorney for a violation of Rule 1.7 must

demonstrate: (1) that it is a current client of the lawyer whose representation is

challenged, and (2) that the party's interests 'conflict' with the interests of the other

client, or with the interests of the lawyer.” Ex parte Tiffin, 879 So. 2d 1160, 1164–

65 (Ala. 2003) (emphasis omitted).

Defendants have presented no evidence that the SHA is a current client of Mr.

Rice's. Rather, Defendants claim that because Mr. Rice previously represented the

SHA and there is no formal record of his terminating that relationship, then the SHA

remains a client of Mr. Rice's. (Doc. 57 at 22). Defendants' position asks too much.

It is unsurprising that there is no official record of Mr. Rice terminating his attorneyclient relationship with the SHA because the SHA did not formally hire Mr. Rice.

Instead, as explained above, an attorney-client relationship existed at one time

because Mr. Threatt subjectively intended to engage Mr. Rice's services on behalf

of the SHA to conduct the civil rights assessment. But the fact that an attorney-client

relationship existed for a brief time in 2019 does not affirmatively demonstrate that

Mr. Rice currently represents the SHA in any matter, and Defendants have offered

Case 1:20-cv-00096-ACA Document 83 Filed 02/12/21 Page 22 of 23

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no evidence to that effect. Indeed, the record contains no evidence of any substantive

work Mr. Rice actually performed or currently performs on behalf of the SHA.

Accordingly, because the SHA is not a current client of Mr. Rice's, Mr. Rice

has not violated Rule 1.7, and the court will not disqualify him on that basis.

For the reasons stated above, the court DENIES Defendants’ motion to

disqualify Mr. Rice from representing Mr. Threatt in this action. (Doc. 55).

The court SETS a Rule 16(b) scheduling conference for 10:00 a.m. on

February 25, 2021 in Courtroom 6B, Hugo L. Black United States Courthouse,

1729 5th Ave. N., Birmingham, AL 35203.

Counsel shall be prepared to discuss revised discovery deadlines.

DONE and ORDERED this February 12, 2021.