GARY M. HARPER and SAMANTHA HARPER, husband and wife, Plaintiffs,
BEACON AIR, INC., HARVEY, HANNA & ASSOCIATES, INC., JOHN HARVEY, AND SUNDEW PAINTING, INC. Defendants,
Submitted: January 17, 2017
Defendant John Harvey's Motion to Disqualify
Plaintiffs' Counsel. DENIED.
S. Nitsche, Esquire and Joel H. Fredericks, Esquire, Weik,
Nitsche & Dougherty, Wilmington, Delaware, Attorneys for
Benjamin C. Wetzel, III, Esquire and Natalie M. Ippolito,
Esquire, Wetzel & Associates, P.A., Wilmington, Delaware,
Attorneys for Defendant John Harvey
M. Shalk, Esquire, Casarino Christman Shalk Ransom &
Doss, P.A., Wilmington, Delaware, Attorney for Defendant
Beacon Air, Inc.
S. Thompson, Esquire and William A. Crawford, Esquire,
Franklin & Prokopik, Wilmington, Delaware, Attorneys for
Defendant Harvey, Hanna & Associates, Inc.
L. Hauske, Esquire, Tybout, Redfearn & Pell, Wilmington,
Delaware, Attorney for Defendant Sundew Painting, Inc.
Richard R. Cooch, R.J.
the Court is Defendant John Harvey's Motion to Disqualify
Plaintiffs' Counsel. This motion arises from Plaintiff
Gary Harper's alleged slip and fall on Defendant John
Harvey's property. Mr. Harvey has moved to disqualify
Plaintiffs' counsel on grounds that a conflict of
interest exists, since Plaintiffs' counsel previously had
represented Mr. Harvey as a plaintiff in a separate unrelated
automobile accident case. Mr. Harvey contends that during his
previous automobile accident lawsuit, he "likely"
revealed information to Plaintiffs' counsel that now
gives Plaintiffs' counsel an advantage in this case,
creating a conflict of interest that warrants Plaintiffs'
 to Delaware Lawyers' Rule of Professional Conduct 1.9
guides this Court's analysis of whether two matters are
"substantially related." Under that Rule, two
matters are "substantially related" "if they
involve the same transaction or legal dispute or if there
otherwise is a substantial risk that confidential factual
information as would normally have been obtained in the prior
representation would materially advance the client's
position in the subsequent matter."
there is a "substantial risk that confidential factual
information as would normally have been obtained in the prior
representation [that] would materially advance the
client's position in [this] subsequent matter" is
the only factor of Rule 1.9 at issue in this case. The
parties agree that the two legal matters are not
"substantially related" in the sense that they do
not involve the same transaction or legal dispute.
Court concludes that Mr. Harvey, bearing the burden of proof,
has not set forth sufficient evidence to demonstrate a
"substantial risk" that he disclosed information to
Plaintiffs' counsel that now "materially
advance[s]" his clients' position in this case, thus
requiring disqualification. Rather, Mr. Harvey has simply
proffered that it is "likely" that he revealed
information to Plaintiffs' counsel that would give
Plaintiffs' counsel an "indirect advantage" in
this case.The Court understands that Mr. Harvey is
quite upset that his former counsel in the automobile
accident case have now brought a slip and fall case against
him. However, disqualification of prior counsel has been held
by this Court to be an "extreme remedy" which the
Court finds is not warranted by the facts of this particular
case. The Court thus DENIES the motion.
FACTS AND PROCEDURAL HISTORY
represented by present counsel Gary S. Nitsche and Joel H.
Fredericks, filed the instant slip and fall action on May 16,
2016. Plaintiffs allege that on October 15, 2014, while
performing plumbing work on a residential property owned by
Mr. Harvey, Plaintiff Gary Harper "fell through a hole
cut for an HVAC vent that was hidden by a
tarp." On the date of the accident, Mr. Harvey
had insurance for the property though The Travelers insurance
company ("Travelers"). Plaintiffs filed suit
against Harvey, Hanna & Associates, Inc. as the general
contractor, Beacon Air, Inc. as the HVAC subcontractor, and
Mr. Harvey as the property owner and the person who hired the
counsel, Gary S. Nitsche, had previously represented Mr.
Harvey as a plaintiff against an unrelated defendant in the
earlier automobile accident action. In that action, Mr. Nitsche
had the assistance of his associate, Samuel D. Pratcher, III,
who was the primary attorney handling that matter. That
action was instituted in this Court on June 5, 2013, and
involved a motor vehicle accident in which an unrelated party
had struck Mr. Harvey's vehicle with her vehicle on
Limestone Road in New Castle County. That action was
dismissed on January 12, 2015 after the parties agreed to
submit the case to binding arbitration.
Harvey opposes Mr. Nitsche and his law firm's
representation of Plaintiffs against him on grounds that a
conflict of interest exists. Although Mr. Harvey's
counsel had originally alleged in the Motion to Disqualify
that the two matters were "substantially related, "
Mr. Harvey's counsel now acknowledges that the two
matters are not "substantially related" as set
forth in Delaware Lawyers' Rule of Professional Conduct
1.9, in that this action does not arise from the same
transaction or legal dispute as the previous action. Mr.
Harvey had also originally contended "that a conflict of
interest exists based on the fact that the incident giving
rise to this action occurred at [Mr.] Harvey's residence
at the same time he was represented by Mr. Nitsche and his
firm, " and that there is a "great
likelihood that [Mr.] Harvey mentioned or discussed this
incident with [Mr.] Nitsche or another member of his
firm" during the prior representation. Mr. Harvey also
argues that Mr. Nitsche "would have the advantage of
knowing [Mr.] Harvey's settlement philosophy, " and
that "Harper's position in this action could be
materially advanced based on any information provided to
Nitsche during the Harper incident at [Mr. Harvey's]
in a later affidavit submitted to the Court, Mr. Harvey
stated in toto:
1. I am a defendant in the above-captioned action.
2. On October 15, 2013, when the plaintiff was allegedly
injured while working on my residence, I was represented by
Gary Nitsche, Esquire and his law firm as a plaintiff in a
personal injury action.
3. It is likely that I would have mentioned or
discussed this incident to Mr. Nitsche or someone from his
law firm around the time the incident occurred, because they
were my attorneys at the time.
4. In conclusion, Mr. Harvey asserts that "[w]alling off
Mr. Nitsche and Mr. Pratcher from this action allowing
plaintiff to continue to be represented by Mr. Fredericks
would satisfy Harvey's conflict of interest
response, Plaintiffs' counsel, Mr. Nitsche, contends that
no conflict of interest exists and that he should not be
disqualified from representing Plaintiffs. Mr. Nitsche argues
that this case and his previous case with Mr. Harvey
"involve separate and distinct incidents and
claims." Mr. Nitsche "certified" in his
Response that "he has spoken with all persons from his
office who would have communicated with [Mr.] Harvey during
the previous representation and that they have no
recollection of [Mr.] Harvey disclosing, or even mentioning,
any information regarding the incident involving [Mr.]
Harper." Mr. Nitsche also "certif[ies] that
Mr. Harvey never discussed the incident involving Mr. Harper
with [him]." Lastly, Plaintiffs contend that as Mr.
Harvey is insured by Travelers, Travelers will assume the
defense in its entirety, and that "[Mr.] Harvey does not
participate in or have a right to dictate any settlement
negotiations. The negotiations, to the extent there are any,
are through Travelers pursuant to the policy of
insurance." Mr. Harvey's counsel does not
dispute this contention. Mr. Nitsche has advised the Court,
however, that "as Mr. Pratcher was the primary attorney
handling the [previous] matter and in an effort to compromise
with Mr. Harvey, [Mr. Nitsche] will agree to 'wall
off' Mr. Pratcher from Mr. Harper's
A Test of Whether There Is a "Substantial Risk"
that Plaintiffs' Counsel's PriorRepresentation of Mr.
Harvey "Material Advances" Plaintiffs' Position
Governs a Motion for Disqualification
though the parties agree that Mr. Harvey's previous case
with Plaintiffs' counsel is not factually or legally
"substantially related" to the case at bar, a
statement of the test regarding disclosure of confidential
information that would "materially advance" the
lawyer's new client's position, thus requiring lawyer
disqualification pursuant to Delaware Lawyers' Rule of
Professional Conduct 1.9, is warranted.
disqualification motions are disfavored because they are
often filed for tactical reasons rather than bona fide
concerns about client loyalty.""The party moving for
disqualification bears the burden of proof. A movant for
disqualification must have evidence to buttress his claim of
conflict because a litigant should, as much as possible, be
able to use the counsel of his choice.""To
ensure that disqualification motions are not granted
liberally, the Court reviewing the motion must weigh the
effect of any alleged conflict on the fairness and integrity
of the proceedings before disqualifying the challenged
counsel."Notably, this Court has cautioned that
"disqualification of counsel is an extreme remedy that
should be employed only when necessary to ensure the fairness
of the litigation process."
a conflict of interest exists in a given case is governed by
the Delaware Lawyers' Rules of Professional Conduct. Rule
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 that person's
interests are materially adverse to the interests of the
former client unless the former client gives informed
consent, confirmed in writing.
 to Rule 1.9 states:
[m]atters are 'substantially related' for purposes of
this Rule  if they involve the same transaction or legal
dispute or  if there otherwise is a substantial risk that
confidential factual information as would normally have been
obtained in the prior representation would materially advance
the client's position in the subsequent
courts have previously analyzed the "substantially
related" requirement of Rule 1.9. Prior to the adoption
of Comment  in 2003, this Court held in Kanaga v.
Gannett Co., Inc that three factors existed as to
whether two actions were "substantially
related." First, the Court would inquire into the
nature and scope of the prior representation. Second, the
Court would determine the nature and scope of the present
litigation. Third, the Court would analyze "whether the
client might have disclosed confidences to counsel
in the course of the prior representation that were ...