Without warning, at approximately 5:15 p.m. Tuesday, April 28, 2009, and during the Government’s cross examination of a witness that Mr. Andry had just finished examining on direct, Mr. Andry and the Court were advised by Robin Smith of the filing of a Motion to Disqualify Mr. Andry and Ms. Sherman from this matter.
Robin Smith represented to the Court that the USA had not yet “ascertained” the facts, but was filing a motion in the event of a “potential” conflict of interest…Mr. Smith, as an officer of this Court, specifically declared,”We became aware of this conflict or potential conflict late last week and we sought guidance from our professional advisory office. We just received their report today advising us to go ahead and file this. It’s an issue for the Court to look into. It’s not something for us to determine. We can’t do it. We don’t know the facts. Opposition to USA’s Motion to Show Cause Why Plaintiffs’ Attorneys…Should not be Disqualified(emphasis in document)
Yesterday must have been Mr. Smith’s day to specifically declare. According to the attached Affidavit of attorney Elwood C. Stevens, Jr., his brief conversation with USA attorney Smith ended with Smith specifically declaring:
…he was tired of plaintiffs’ counsel offering him ethics advice and he declined to withdraw the motion.
Likely, Plaintiffs’ counsel was tired of the need to offer ethics advice to an attorney representing our government. Uncle Sam was probably embarrassed the Plaintiffs had to retain an outside Ethics expert but they did and the affidavit of attorney Basile Uddo is included, too, as are affidavits from the two attorneys whose names are specifically declared in the motion the ethics weary Mr. Smith filed with court yesterday.
Mr. Smith may have over exerted himself coming up with what the Plantiffs’ response referred to as a “phantom conflict,” however, one would think Plaintiffs’ counsel were beyond tired, if not totally exhausted, by the end of what appears to have become a very long day.
Within thirty (30) minutes of the adjournment of Court on the 28th day of April, 2009, Mr. Andry, Ms. Sherman, nine other lawyers, three paralegals, and outside ethics counsel began researching and organizing information in order to respond to the Motion to Disqualify filed by the USA.
The USA, in what can only be seen as an attempt to gain an improper advantage at trial, filed this motion to disqualify. It is important for this Court to be cognizant of the fact that this motion was filed at 5: 15 p.m., in the middle of the examination of the plaintiffs’ damages expert and on the eve of the day that the plaintiffs indicated to the defendant that the plaintiffs would be resting.
The plaintiffs devoted substantial resources to respond to this baseless motion because of the serious allegations made therein and to address the issues presented in the motion in an expeditious way so as not to upset this trial. While the cost of responding to this baseless motion have not been totaled, they can and will be substantial, in addition to time spent in support of the Motion for Sanctions under Rule 11 that Ms. Sherman and Mr. Andry will be filing against the lawyers for the USA and the USA. (emphasis added)
In addition to claiming there was no conflict, the Plaintiffs’ brief cited the waiver quoted in the most recent SLABBED update on the MRGO case – and then they went a step further:
While the lawyers for the USA have represented that it is only within the last few days the USA has become aware of a potential conflict, in fact and in reality, lawyers for the USA in this case were clearly aware of this alleged conflict as far back as the 2nd of October, 2008, when Kea Sherman in fact attended two depositions on behalf of the Robinson plaintiffs and/or the putative class representatives in the MR-GO Master Class Action Complaint…
Notably, Ms. Sherman appeared at a deposition on April 9,2008 as counsel for Jefferson Parish where the USA’s lead counsel, Robin Smith, was also in attendance. USA was therefore aware of Ms. Sherman’s previous representation of Jefferson Parish at the time she appeared in this litigation on behalf of the Robinson plaintiffs in early October, 2008.
In fact, one of the attorneys affiliated with the interests of the Robinson plaintiffs, Brendan O’Brien, who has been admitted pro hac vice to this Court, attended a deposition taken in the Robinson matter on the 2nd of October, 2008, when one or more of the attorneys for the USA, U.S. Department of Justice, were overheard by him (and by Kea Sherman) to say to Ms. Sherman a clear acknowledgment then that she was understood by them to now be a lawyer not for the Parish of Jefferson, Louisiana, but a lawyer now for the Robinson plaintiffs. At that deposition there was joking amongst all individuals present in the room that Ms. Sherman had “joined the dark side.” The foregoing is evidenced by the attached Affidavits of Brendan O’Brien and Kea Sherman.
Expect some choice words from Judge Duval. Keep your dictionary handy!