The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. CIVIL ACfION
D,o~ket)No. S:V,-q?-9
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FILED & ENTERED
Sunbury Primary Care, P.A.,
SUPERIOR COURT
Plaintiff/Counterclaim AUG 06 2007
Defendant
PENOBSCOT COUNTY
v. Order (Motion to Disquallf+:+~•. . r.;..----------..J
Motions to Amend)
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Jennifer Trimble, fl..'\t'O~
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Defendant/Counterclaim ...\~\..v \\~\,.r~
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Pending before the court are Sunbury Primary Care, P.A.'s motion to disqualify
Jennifer Trimble's counsel of record from further representation of her in these
proceedings, and each parties' motion to amend their claims against the other. The court
has reviewed the parties' submissions on these motions.
A. Motion to disqualify
Sunbury has moved to disqualify Trimble's attorney, Gregory A. Brodek, Esq.
and his law firm, Duane Morris LLP, because Brodek formerly represented Sunbury in
matters that included the development of its model contract used to establish the terms of
employment between Sunbury and physicians whom it employs. The court grants the
motion.
The parties do not dispute the applicable provisions of law. The Maine Bar Rules
provide in pertinent part that
a lawyer shall not commence representation adverse to a former client without
that client's informed written consent if such new representation is substantially
related to the subject matter of the former representation....
M.Bar.R. 3.4(d)(l)(i). A three-step inquiry is used to determine whether the scope of
former representation of one client is "substantially related" to the scope of subsequent
representation of the other client. The court must first determine the scope of the former
representation, then determine whether it may be reasonably inferred that the former
representation involved confidential communications, and then finally determine whether
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that information is relevant to the successive matter. See Adam v, MacDonald Page &
Co., 644 A.2d 461,463 (Me. _ _). Further, although the court must be mindful of the
specter that a motion to disqualify may be used for inappropriate strategic gain, when
legitimate disqualification questions are raised, they are to be answered with doubts
yielding to disqualification. Casco Northern Bank v. lBI Ass'd, Ltd., 667 A.2d 856, 859
61 (Me. 1995).
Here, the record submitted by the parties reveals that between 1995 and
September 1999, Brodek was a partner in the law firm of Kozak, Gayer & Brodek, P.A.
The firm represented Sunbury as its general counsel. Although several attorneys
practicing with the Kozak firm were involved in that representation, Brodek himself was
the senior partner in the firm representing Sunbury and the person in the Kozak firm to
whom Sunbury representatives often turned on legal matters. He had considerable
personal involvement in matters within the scope of the Kozak firm's representation of
Sunbury. Of particular importance here is the fact that between October 1998 and
January 1999, Brodek worked with representatives of Sunbury to develop a model or
template employment contract to be used in defining the rights and liabilities of Sunbury
as an employer and physicians whom it hired as employees. The model contract that
Brodek helped to develop included terms directly at issue in this case, including, among
others, financial penalties imposed on a physician-employee upon separation from
employment in certain circumstances. As part of Brodek's work in the development of
the model contract, he worked on and exchanged with Sunbury representatives several
drafts of the instrument. He also attended at least one meeting of Sunbury's Board of
Directors to discuss the employment agreement. Brodek also provided specific guidance
about the inclusion of non-compete provisions in the employment contract and the
benefits and protection it would provide to Sunbury.
The terms of the model contract and the Trimble contract establishing limitation
on the practice of former Sunbury physicians bear considerable similarity. The duration
of the limitation, the geographical scope of the limitation and the amount of liquidated
damages are not identical. However, the qualitative terms are materially the same in the
model instrument as in Trimble's particular contract, and the Trimble contract includes
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all of the quantitative terms encompassed in the model contract, although there are some
differences in the actual quantities found in the two documents.
Brodek separated from the Kozak firm in October 1999 and became affiliated
with Duane Morris. Sunbury remained Brodek's client until late 2002. Through that
time, Duane Morris, largely through Brodek, continued to serve as Sunbury's general
counsel.
Trimble entered into an employment relationship with Sunbury in October 2005.
Because Duane Morris and Brodek no longer represented Sunbury at that time, Brodek
had no involvement in the negotiations leading to Sunbury's employment of Trimble or
in any other matters involving Trimble's employment or this litigation.
Notwithstanding this temporal separation, the court concludes that Brodek's prior
representation of Sunbury, which included internal and confidential guidance he provided
to Sunbury on the very issues at the center of this case, requires his disqualification and
that of his present law firm from representation of Trimble. The record demonstrates that
Brodek's work was instrumental in the development of Sunbury's model employment
contract that forms the basis for Sunbury's claims against Trimble. At least as significant
as this, Trimble - through Brodek -- has asserted a claim against Sunbury challenging the
enforceability of the portions of the contract, which he himself participated in creating,
purporting to expose Trimble to post-separation limitations.
When a judicial action arises from a noncompetition agreement and other related
provisions of an employment contract such as the recital of liquidated damages, almost
invariably a central issue is the reasonableness of those terms. See, e.g., Brignull v.
Albert, 666 A.2d 82, 84 (Me. 1995). Here, Brodek's worked with Sunbury in creating a
model instrument that incl uded such terms. In the court's view, it is inevitable that
proper guidance and counsel provided by an attorney to a client in that setting would
include communications about what terms might be adjudicated to be reasonable, and
what terms are susceptible to a contrary result. Also inevitably, those discussions
between an attorney and his client would address strengths and weaknesses of
prospective terms of a model employment contract relating to limitations and damages
imposed on a separated employee. Trimble's challenges to the contract, presented both
as defenses and as an affirmative counterclaim, are based directly on those issues that, the
3
court reasonably infers, were the subject of confidential communications between Brodek
and Sunbury representatives. Thus, the court concludes that the Adam test is met here
and that Brodek and Duane Morris must be disqualified from representing Trimble in this
action.
Trimble contends that Sunbury provided a sufficient consent to the participation
of Brodek and Duane Morris, when it agreed to Trimble's motion for admission pro hac
vice of another attorney, based out-of-state, who is affiliated with the firm. The court
does not view this circumstance as one that meets the standard of Maine Bar Rule
3.4(d)(l)(i). Even if it did, Sunbury's agreement to the motion for admission pro hac
vice could not be seen to amount to a valid consent by Sunbury of Brodek' s
representation of Trimble in this case. Brodek had already entered his appearance when
he filed Trimble's responsive pleading (which included Trimble's counterclaim
challenging the enforceability of portions of the Sunbury-Trimble employment contract).
Therefore, Sunbury's response to that motion has no material bearing on the motion at
bar.
Finally, the record on the motion at bar suggests that it took some time for
Sunbury to gather information that underlies its motion to disqualify. Under the
circumstances outlined in Sunbury's submissions, the court cannot find that it acted in a
dilatory way.
B. Trimble's motion to amend her counterclaim
Trimble has moved for leave to amend her counterclaim to add a count for abuse
of process. Sunbury's opposition is based largely on an evaluation of the factual basis for
such a claim. Those arguments may well have merit. However, Sunbury's arguments
make is apparent that any such disposition of the prospective claim requires consideration
of a factual record that, at this stage of the case, does not exist. Trimble filed her motion
to amend within the time presumptively allowed for such amendments to a party's
pleadings. Without addressing the issues that require a factual predicate, the court grants
the motion.
C. Sunbury's motion to amend its complaint
Sunbury has moved to amend its complaint to include tort claims for negligent
misrepresentation and fraudulent misrepresentation. Trimble opposes the motion,
4
primarily on the ground that the additional proposed claims could not provide Sunbury
the basis for relief against her. The court concludes that Trimble's challenges to the
merits of the proposed counts do not rise to the point where the counts must be deemed
futile. Further, a substantial portion of the factual basis for the proposed claims arose
from discovery responses produced by Trimble after the expiration of the presumptive
deadline for motions to amend the parties' pleadings. Thus, even though Sunbury filed
its motion to amend after the time allowed for such motions in the standard scheduling
order, the court will grant the motion.
The entry shall be:
For the foregoing reasons, the plaintiff's' motion to disqualify is granted.
Gregory A. Brodek, Esq. and the law firm of Duane Morris LLP are disqualified as
counsel of record for the defendant in this action.
The defendant's motion to amend her counterclaim is granted. The amended
counterclaim is allowed.
The plaintiff's motion to amend i1Ecomplaint is granted. The amended complaint
is allowed.
Dated: August 3, 2007
Justice,
5
08/07/2007 MAINE JUDICIAL INFORMATION SYSTEM ksmith
PENOBSCOT COUNTY SUPERIOR COURT mjxxi048
CASE PARTY ADDRESS BOOK
SUNBURY PRIMARY CARE VS JENNIFER TRIMBLE
UTN:AOCSsr -2007-0006511 CASE #:BANSC-CV-2007-00009
SUNBURY PRIMARY CARE PL
ATTY DUDDY, MICHAEL Tel# (207) 775-1020
ATTY ADDR:53 EXCHANGE ST PO BOX 597 PORTLAND ME 04112-0597
ATTY BOXER-MACOMBER, LAURI Tel# (207) 775-1020
ATTY ADDR:53 EXCHANGE ST PO BOX 597 PORTLAND ME 04112-0597
JENNIFER TRIMBLE DEF
ATTY BRODEK, GREGORY Tel# (207) 262-5400
ATTY ADDR:88 HAMMOND STREET, SUITE 500 BANGOR ME 04401
ATTY ATTORNEY, VISITING
ATTY ADDR:-
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