United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE.
Integrity National Corporation (“Integrity”) has
filed an application for confirmation of an arbitration award
issued against Respondent DSS Services, Inc.
(“DSS”) on December 15, 2016. Pet., ECF No. 1. In
its Answer, DSS argued that the application could not be
brought by Integrity's counsel, Janice Davis, because she
had previously represented DSS in related proceedings. Answer
3-4, ECF No. 9. At a telephone conference held pursuant to
Fed.R.Civ.P. 16, I ordered DSS to file a Motion to Disqualify
Counsel. ECF No. 20. Thereafter, DSS filed its Motion, ECF
No. 21, which is fully briefed, Resp't's Mem., ECF
No. 21-1; Pet'r's Opp'n, ECF No. 22;
Resp't's Reply, ECF No. 24. No hearing is necessary,
Loc. R. 105.6 (D. Md.). While Davis represented
DSS-Integrity, LLC (“DSS-Integrity”), a joint
venture between DSS and Integrity, DSS has not established
that she ever represented DSS itself. I will therefore deny
DSS's Motion to Disqualify, and Integrity may proceed by
filing a Motion to Confirm Arbitration Award.
Small Businesses Administration's Business Development
Program (also known as the “8(a) program”)
provides assistance to firms owned and controlled by socially
and economically disadvantaged individuals. 15 U.S.C. §
637(a). Among the forms of assistance available under the
program, participating firms can form joint ventures with
mentor firms for the purpose of jointly competing for federal
government contracts. 13 C.F.R. § 124.520. In January
2012, Integrity-a janitorial services contractor and a
“graduate” of the 8(a) program- agreed to partner
with DSS-a general construction company and participant in
the program- and form a joint venture for the purpose of
participating in the 8(a) program's
mentor-protégé program. Hines Decl. ¶ 4,
Pet'r's Opp'n Ex. 2, ECF No. 22-1. A Joint
Venture Agreement signed by the two company's principals
established DSS-Integrity as the corporate manifestation of
the joint venture and assigned 51% of profits and losses from
the venture to DSS and 49% to Integrity. Joint Venture
Agreement 1-2, Resp't's Mot. Ex., ECF No.
21-4. Pursuant to the Agreement, the Parties
secured several government contracts. Hines Decl.
¶¶ 6, 12, 19, 22.
August or September 2013, DSS-Integrity submitted a bid in
response to a solicitation for proposals issued by the U.S.
Department of Defense, Enterprise Facilities and Construction
Division, Washington Headquarters Acquisition Directorate for
clinical custodial services to be provided at the DiLorenzo
TRICARE Health Clinic. Resp't's Mot. ¶ 5.
DSS-Integrity failed to secure the contract and submitted a
bid protest to the Government Accountability Office (GAO).
Id. ¶ 7; Hines Decl. ¶ 9. Davis, who has
represented Integrity in various legal matters over the past
seventeen years, represented DSS-Integrity in the bid
protest. Hines Decl. ¶¶ 2, 9; Davis Decl. ¶ 2,
5, Resp't's Opp'n Ex. 1, ECF No. 22-1. The
arbitration that is the subject of this case dealt with
another unrelated prime-sub contract between the two
companies that Integrity alleges DSS breached. Pet.
explained in Jarallah v. Thompson, 123 F.Supp.3d 719
(D. Md. 2015):
A motion to disqualify is a serious matter, which must be
decided on a case-by-case basis. This is so because two
significant interests are implicated by a disqualification
motion: the client's free choice of counsel and the
maintenance of the highest ethical and professional standards
in the legal community. Nevertheless, the guiding principle
in considering a motion to disqualify counsel is safeguarding
the integrity of the court proceedings. Thus, this court must
not weigh the competing issues with hair-splitting nicety
but, in the proper exercise of its supervisory power over the
members of the bar and with a view of preventing an
appearance of impropriety, [this Court] is to resolve all
doubts in favor of disqualification.
Id. at 731 (quoting Penn Mut. Life Ins. Co. v.
Berck, No. DKC 09-0578, 2010 WL 3294309, at *3) (D. Md.
Aug. 20, 2010) (alterations in original)). In light of this
balance, the movant bears “a high standard of proof,
” Franklin v. Clark, 454 F.Supp.2d 356, 364
(D. Md. 2006), to demonstrate that the attorney has violated
“a rule of professional conduct that requires
disqualification, ” Jarallah, 123 F.Supp.3d at
732; see also Loc. R. 704 (making applicable the
Maryland Lawyer's Rules of Professional Conduct (MLRPC)
established by the Maryland Court of Appeals).
moves for Davis to be disqualified pursuant to MLRPC 1.9,
which governs an attorney's obligation to a former
client; MLRPC 1.7, which addresses conflicts of interest as
they pertain to current clients; and MLRPC 3.7, which
restricts a lawyer's ability to serve as a witness in his
client's case. Resp't's Mem. 3-4;
Resp't's Reply 7-8.
1.9 prohibits an attorney from representing a client
“in the same or a substantially related matter”
in which she has represented a former client, if the current
and former clients' interests are “materially
adverse, ” absent informed consent from the former
client. MLRPC 1.9(a). For MLRPC 1.9 to come into play in this
case, Davis must have represented DSS.
The Maryland Court of Appeals has “acknowledge[d] that
determining ‘what constitutes an attorney-client
relationship is a rather elusive concept.' ”
Attorney Grievance Comm'n v. Shoup, 979 A.2d
120, 135 (Md. 2009) (quoting Attorney Grievance
Comm'n v. Shaw, 732 A.2d 876, 883 (Md. 1999)) Such a
relationship may arise through an explicit agreement or
“by implication from a client's reasonable
expectation of legal representation and the attorney's