Jarrett Nathan Tapp

The court incorporates by reference in this paragraph and adopts as the findings and orders

of this court the document set forth below. This document was signed electronically at the

time and date indicated, which may be materially different from its entry on the record.

i | 2 ye LA.

' □□□ ay ‘5 Russ Kendig

er United States Bankruptcy Judge

Dated: 11:25 AM May 4, 2020

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: ) CHAPTER 7

)

JARRETT NATHAN TAPP, ) CASE NO. 19-62481

)

Debtor. ) JUDGE RUSS KENDIG

)

) MEMORANDUM OF OPINION

) (NOT FOR PUBLICATION)

Pro se Debtor Jarrett Nathan Tapp moved to disqualify attorneys Ashley Manfull, Kari

Coniglio and Marcel Duhamel individually, as well as their law firm, Vorys, Sater, Seymour, and

Pease LLP (“Vorys’”) (collectively “Respondents’’), from continued representation of Bob Evans

Restaurants, LLC (“Bob Evans”). He alleges multiple violations of Ohio’s Rules of

Professional Conduct. Respondents oppose disqualification.

The court has subject matter jurisdiction of this case under 28 U.S.C. § 1334 and the

general order of reference issued by the United States District Court for the Northern District of

Ohio. General Order 2012-7. The court has authority to enter final orders in this matter.

Pursuant to 28 U.S.C. § 1409, venue in this court is proper.

This opinion is not intended for publication or citation. The availability of this opinion,

in electronic or printed form, is not the result of a direct submission by the court.

BACKGROUND

Debtor is a former employee of Bob Evans. Prior to his bankruptcy case, Debtor filed

three cases against Bob Evans. Two were dismissed for failure to state a claim and the third was

voluntarily dismissed by Debtor. When Debtor filed his bankruptcy case, he was a defendant in

an action by Bob Evans in the Wayne County Court of Common Pleas. Counts in that action

include defamation, tortious interference with business relationship, vexatious litigator, and

more. Bob Evans Restaurants, LLC v. Tapp, Case No. 2019 CVC-H 000383. Bob Evans

obtained a preliminary injunction preventing Debtor from bringing counterclaims in its action.

When he filed this case, a postpetition deposition in the state court action was scheduled.

Debtor attended and participated in the deposition. Attorney Ashley Manfull conducted the

deposition for Bob Evans. Debtor contends his participation was coerced and that the

deposition violated the automatic stay. He also says he was prevented from asserting his Fifth

Amendment right against self-incrimination and Attorney Manfull’s attempt to contact the state

court judge during the deposition for a ruling on that issue was wrong. He filed a motion in this

court seeking damages for the purported stay violation. According to Debtor, Attorney Manfull

should be disqualified because she is a potential witness and her conduct violated various rules

of professional conduct.

Debtor seeks to disqualify Attorney Kari Coniglio for unbecoming conduct. He alleges,

prior to a hearing in this court, in an attempt to intimidate or harass him, she commented “he files

all of these fucking motions.” (“Statement”) She submitted an affidavit denying the comment

was either directed to him or about him.

He claims that Attorney Duhamel should be disqualified because he may be called to

testify regarding his intent to file a motion to dismiss Debtor’s motion for violation of the

automatic stay.

As for Vorys, Debtor argues that BER is maintaining an untenable legal position on the

issue of whether he is entitled to emotional damages for a violation of the stay. He also posits

that Vorys breached its ethical duties in not reporting criminal and/or fraudulent conduct by Bob

Evans and one of its managers.

He cites numerous rules of professional conduct as a basis for disqualification of

Respondents.

DISCUSSION

To start, the court will address Debtor’s request for a hearing his motion to disqualify.

Local Bankruptcy Rule 9013-1(e) provides:

(e) No Oral Arguments on Motions. Motions and applications

shall be decided without oral argument unless otherwise

provided in these rules or a hearing is scheduled by the Court.

Debtor does not cite any rule or other authority requiring a hearing on this matter. Upon review

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of the pleadings, the court finds that a hearing will not materially advance the court’s

understanding of the issues presented in either Debtor’s motion, the response, or the reply. The

court therefore declines to schedule a hearing.

While there is no set standard for disqualification, there are guiding principles. Per the

District Court for the Northern District of Ohio,

Disqualification of counsel is viewed with disfavor because it

impinges on the party's right to employ the attorney of its choice.

Disqualification is an extreme remedial measure, and the Court

should disqualify an attorney “only when there is a reasonable

possibility that some specifically identifiable impropriety actually

occurred and, in light of the interest underlying the standards of

ethics, the social need for ethical practice outweighs the party's

right to counsel of his own choice.” Lamson & Sessions Co. v.

Mundinger, No. 4:08CV1226, 2009 WL 1183217 (N.D. Ohio

May 1, 2009) (Boyko, J.) (citations and internal quotations

omitted).

The party seeking disqualification “bears the burden of demon-

strating the need to disqualify counsel even though the allegation

involves ethical considerations. Id. at *4 (citing Centimark Corp.

v. Brown Sprinkler Serv., Inc., 85 Ohio App.3d 485, 620 N.E.2d

134, 137 (11th Dist.Ohio App.1993)). Disqualification must be a

necessary remedy to the violation. Id.

FDIC v. Commonwealth Land Title Ins. Co., 2012 WL 3912764, *3 (N.D. Ohio 2012).

Pursuant to Local Bankruptcy Rule (“LBR”) 2090-2(a), “attorneys admitted to practice in

this Court shall be bound by the ethical standards of the Ohio Rules of Professional Conduct

adopted by the Supreme Court of the State of Ohio, so far as they are not inconsistent with

federal law.” Under LBR 2090-2(b), professional conduct and discipline are governed by Local

Civil Rule 83.7. Subpart (a) of the rule mimics LBR 2090-2(a). Rule 83.7(b) provides the

penalty for any failure to comply with applicable ethical standards:

(1) For misconduct defined in this Rule, and for good cause

shown, and after notice and opportunity to be heard, any attorney

admitted to practice before this Court may be subjected to such

disciplinary action as the circumstances warrant.

(2) Acts or omissions by an attorney admitted to practice before

this Court, individually or in concert with any other person or

persons, which violate the Ohio Rules of Professional Conduct

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adopted by this Court shall constitute misconduct and shall be

grounds for discipline, whether or not the act or omission

occurred in the course of an attorney-client relationship

With this backdrop, the court will examine each of Debtor’s allegations of misconduct.

1. Professional Rule of Conduct 3.7: Lawyer as Witness

Debtor contends all three attorneys are unable to continue to represent Bob Evans

because they are likely to be called as witnesses. Rule 3.7 provides:

(a) A lawyer shall not act as an advocate at a trial in which the

lawyer is likely to be a necessary witness unless one or more of

the following applies:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of

legal services rendered in the case;

(3) the disqualification of the lawyer would work sub-

stantial hardship on the client.

(b) A lawyer may act as an advocate in a trial in which another

lawyer in the lawyer’s firm is likely to be called as a witness

unless precluded from doing so by Rule 1.7 or 1.9.

Two matters are before the court which may conceivably lead to a trial or evidentiary hearing:

Debtor’s stay violation motion and Bob Evans’ complaint objecting to dischargeability. Debtor

has raised no issues regarding the latter, likely because it was filed after his motion, leaving the

court to consider only the former.

Since Attorney Manfull conducted the deposition at the heart of the alleged stay

violation, Debtor believes her testimony will be pertinent. At present, the parties have presented

legal memoranda on Debtor’s entitlement to damages. No factual issues are before the court

that require testimony and Respondents deny any exist. In the event a contested factual issue

does arise, the court sees no reason that Attorney Manfull would have to act as both witness and

advocate. Two other Vorys attorneys entered notices of appearance in this case and could

represent Bob Evans if Attorney Manfull must testify as outlined in subpart (b) of Rule 3.7.

Debtor also suggests that Attorney Coniglio’s Statement is worthy of disqualification.

Even if Debtor is correct, and she made the Statement and directed it to him, there is nothing

before the court which would lead to her need to testify regarding the Statement. In the unlikely

event her testimony would be required, other members of the firm can continue to represent Bob

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Evans. Further, based on what is contained in the motion to disqualify, and temporarily

assuming Debtor’s version of the facts, the single, isolated incident involving the Statement may

be unbecoming but is not clearly actionable.

Finally, Debtor wants Attorney Duhamel disqualified because he may be required to

testify regarding Bob Evans’ position that Debtor is not entitled to emotional damages for a stay

violation. On one hand, Debtor seems to suggest Bob Evans’ argument is legally untenable and

Respondents are proceeding in bad faith with Attorney Duhamel’s endorsement. Alternatively,

Debtor appears to conflate the presentation of legal arguments with witness testimony.

Regardless, Debtor failed to convince the court that Attorney Duhamel’s testimony will be

necessary or likely.

Debtor’s motion to disqualify under Rule 3.7 is not well-taken.

2. Professional Rule of Conduct 3:3: Candor Toward the Tribunal

Debtor cites Rule 3.3(b) as his basis for disqualification:

(b) A lawyer who represents a client in an adjudicative

proceeding and who knows that a person, including the

client, intends to engage, is engaging, or has engaged

in criminal or fraudulent conduct related to the proceeding

shall take reasonable measures to remedy the situation,

including, if necessary, disclosure to the tribunal.

(emphasis original). According to Debtor, “Vorys as a Firm, was/were/are consciously aware

that [Bob Evans] had committed violations of law by not reporting criminal activity, occurring

on Bob Evans’ property, occurring on [Bob Evans’] property(s) (sic) to authorities.” (M.

Disqualify, pp. 6-7, ECF No. 49.) Debtor’s motion to disqualify Vorys on this basis fails

because Bob Evans’ alleged actions in failing to report criminal activity do not relate to the

proceeding before this court, his bankruptcy case.

Debtor also posits that Vorys failed to reveal that its nefarious purpose behind “illegal”

deposition was to have Debtor waive his Fifth Amendment privilege in order to build a criminal

case against him. Since the deposition was conducted in the pending state court case, his

argument relates to that proceeding, not this bankruptcy case, and therefore does not fall under

Rule 3.3(b). Debtor has not identified a lack of candor by Respondents in this proceeding.

The court denies Debtor’s motion to disqualify under Rule 3.3(b).

3. Professional Rule of Conduct 3.4: Fairness to Opposing Party and Counsel

Debtor asserts that Attorney Manfull’s behavior during the deposition was unfair. In

seeking to prevent his assertion of the privilege against self-incrimination, he alleges she violated

5

Rule 3.4(b):

A lawyer shall not do any of the following:

* * *

(b) falsify evidence, counsel or assist a witness to

testify falsely, or offer an inducement to a witness

that is prohibited by law.

His argument misses the mark. Attorney Manfull’s statements regarding the Fifth Amendment

were not encouragements for Debtor to testify falsely. She was stating a legal position.

Further, the fact that Debtor believes Attorney Manfull should have proceeded differently does

not equal a violation of the rules of professional conduct. The court declines to disqualify

Attorney Manfull under Rule 3.4.

4. Rule 4.3: Dealing with Unrepresented Person

Debtor advances the position that Attorney Manfull should have advised him, as an

unrepresented party, to seek counsel. By not doing so, she violated her ethical duties under

Ohio Professional Rule of Conduct 4.3. The rule states, in its entirety:

RULE 4.3: DEALING WITH UNREPRESENTED PERSON

In dealing on behalf of a client with a person who is not represented

by counsel, a lawyer shall not state or imply that the lawyer is disin-

terested. When the lawyer knows or reasonably should know that the

unrepresented person misunderstands the lawyer’s role in the matter,

the lawyer shall make reasonable efforts to correct the misunderstanding.

The lawyer shall not give legal advice to an unrepresented person, other

than the advice to secure counsel, if the lawyer knows or reasonably

should know that the interests of such a person are or have a reasonable

possibility of being in conflict with the interests of the client.

Debtor misunderstands that he is represented, choosing to represent himself. As the

comments to the rule explain, the purpose of the rule is to avoid confusing an unrepresented

party of an attorney’s loyalty:

[1] An unrepresented person, particularly one not experienced in dealing

with legal matters, might assume that a lawyer is disinterested in loyalties

or is a disinterested authority on the law even when the lawyer represents

a client. In order to avoid a misunderstanding, a lawyer will typically need

to identify the lawyer’s client and, where necessary, explain that the client

has interests opposed to those of the unrepresented person.

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Considering the history of litigation between the parties and Debtor’s familiarity with the legal

system, any claim that Debtor was confused about who Attorney Manfull represented is

preposterous.

Additionally, “not every communication between a lawyer and an unrepresented person

constitutes ‘advice.’” Zichichi v. Jefferson Ambulatory Surgery Ctr., 2008 WL 2859232, *5

(E.D. La. 2008) (citing First Nat'l Bank of St. Bernard v. Assavedo, 764 So.2d 162

(La.App.2000) (explanatory parenthetical omitted)). To adopt Debtor’s position would allow

Debtor to use his choice to proceed pro se, and represent himself, as a defense. It would hinder

the litigation from moving forward and prevent Bob Evans from advocating its legal position(s).

Prior to adoption of Rule 4.3, the comparable disciplinary rule was DR 7-104. See Ohio

Rules of Professional Conduct, App’x A.1 The Board of Commissioners on Grievances and

Discipline issued an advisory opinion discussing DR 7-104. In the opinion, it cited Ethical

Consideration 7-18, which recognizes “a lawyer representing another may have to deal directly

with the unrepresented person; in such an instance, a lawyer shall not undertake to give advice to

the person who is attempting to represent himself [herself], except that he [she] may advise him

[her] to obtain a lawyer.” But the Board further expounded that

Obviously, there will be interaction between a lawyer and an

unrepresented person. To move a matter forward, a lawyer

must be able to discuss the subject matter of representation

with the unrepresented person. But, the lawyer must do so

without giving legal advice and without creating a false

impression that he or she represents the unrepresented

person's interests.

Bd. Of Commissions On Grievances and Discipline, Opinion 96-2 (Feb. 2, 1996).

During the deposition, Debtor was acting as his own attorney and was not unrepresented.

Attorney Manfull’s argument that Debtor was not entitled to assert a Fifth Amendment privilege

during a deposition in a civil case was not advice, it was a legal argument presented on behalf of

her client. The court finds no basis to find that Debtor would have been confused about who

Attorney Manfull represented. Consequently, the court finds Debtor’s argument under Rule 4.3

is not well-taken.

5. Rule 4.4: Respects for Rights of Third Persons

Again, Debtor misunderstands the import of his position and the rule. He is not a third

1 Available at:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwj6yejd

uJDpAhXpoHIEHfLFCuAQFjACegQIARAB&url=http%3A%2F%2Fwww.supremecourt.ohio.gov%2FLegalResou

rces%2FRules%2FProfConduct%2FprofConductRules.pdf&usg=AOvVaw1VyPgrNKRJBgnDXvpXS5jP (last

visited April 30, 2020)

7

person, he is a party. And not only is he a party, he is both the client and attorney for himself.

The rule does not apply in the manner argued by Debtor. Disqualification is therefore

unwarranted.

6. Rule 8.4: Misconduct

Finally, Debtor argues that Attorney Manfull’s attempt to contact Judge Wiest during the

deposition was improper. He cites the following provisions of Rule 8.4:

It is professional misconduct for a lawyer to do any

of the following:

(a) violate or attempt to violate the Ohio Rules of

Professional Conduct, knowingly assist or induce

another to do so, or do so through the acts of another;

(b) commit an illegal act that reflects adversely on

the lawyer’s honesty or trustworthiness;

(c) engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation;

(d) engage in conduct that is prejudicial to the admini-

stration of justice;

* * *

(e) knowingly assist a judge or judicial officer in conduct

that is a violation of the Ohio Rules of Professional Conduct,

the applicable rules of judicial conduct, or other law.

(emphasis omitted). There was nothing untoward in seeking a ruling from the court during the

deposition. It is not an infrequent practice in many courts. To suggest that Judge Wiest would

have been misled to violate his ethical duties besmirches both he and his office.

Debtor’s motion to disqualify under Rule 8.4 is denied.

CONCLUSION

Disqualification of a party’s chosen counsel is an extreme measure to be used only when

other remedial measures are inadequate. Debtor failed to meet his burden of proof of any

ethical violation warranting disqualification of Attorney Manfull, Attorney Coniglio, Attorney

Duhamel or Vorys. His motion will be denied by a separate order is to issue immediately.

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# # #

Service List:

Jarrett Nathan Tapp

7700 Back Orrville Road

Wooster, OH 44691

Kari B. Coniglio

Marcel C. Duhamel

Vorys, Sater, Seymour and Pease LLP

200 Public Square, Suite 1400

Cleveland, OH 44114

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