Barbara Bowers v. The Ophthalmology Group

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0309p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

BARBARA JEAN BOWERS, M.D.,

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No. 12-6129

v.

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Defendant-Appellee. -

THE OPHTHALMOLOGY GROUP,

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Appeal from the United States District Court

for the Western District of Kentucky at Paducah.

No. 5:12-cv-00034—Joseph H. McKinley, Jr., Chief District Judge.

Argued: December 11, 2012

Decided and Filed: October 25, 2013

Before: MOORE and GRIFFIN, Circuit Judges; SARGUS, District Judge.*

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COUNSEL

ARGUED: Stephen M. Bowers, Franklin, Kentucky, for Appellant. Kerry D. Smith,

McMURRY & LIVINGSTON, PLLC, Paducah, Kentucky, for Appellee ON BRIEF:

Stephen M. Bowers, Franklin, Kentucky, for Appellant. Kerry D. Smith, McMURRY

& LIVINGSTON, PLLC, Paducah, Kentucky, for Appellee.

MOORE, J., delivered the opinion of the court, in which SARGUS, D. J., joined.

GRIFFIN, J. (pp. 12–16), delivered a separate dissenting opinion.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. When a prior attorney-client

relationship exists between a party and an opposing party’s counsel, the opposing party’s

*

The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of

Ohio, sitting by designation.

1

No. 12-6129 Bowers v. The Ophthalmology Group Page 2

counsel must be disqualified if confidential information was shared in the prior matter

and that matter is substantially related to the current one. In this appeal, we consider the

meaning of “substantially related.”

Plaintiff-Appellant, Barbara Jean Bowers, M.D., is an ophthalmologist in

Paducah, Kentucky. From 2002 to 2010, Bowers was a partner of The Ophthalmology

Group LLP, defendant-appellee. After being expelled from the partnership in 2010,

Bowers filed the instant suit, seeking relief for gender discrimination and retaliation

under both Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., and Kentucky law. Bowers also moved to disqualify defendant’s counsel, an

attorney at McMurray & Livingston PLLC (“M&L”), at the district court based on a

conflict of interest: another attorney at M&L previously represented Bowers in a

substantially related matter.

The district court granted summary judgment in favor of defendant because

Bowers, as a former partner of The Ophthalmology Group, was not an “employee” under

Title VII. As a result, the district court dismissed without prejudice Bowers’s state-law

claims, declining to exercise supplemental jurisdiction. Lastly, the district court denied

Bowers’s motion to disqualify M&L “as moot.” Bowers appeals those decisions of the

district court and asks this court to disqualify M&L on appeal, a request that was

previously denied in a single-judge order from this court. Finding that M&L’s prior

representation of Bowers is substantially related to the present case, we GRANT

Bowers’s motion to disqualify M&L on appeal, VACATE the district court’s grant of

summary judgment, and REMAND the case for further proceedings with instructions

to disqualify M&L on remand.

I. BACKGROUND

Bowers joined The Ophthalmology Group as an employee in 1999. In 2002, she

became one of six partners of The Ophthalmology Group after buying into the

partnership and signing a partnership agreement. On November 9, 2009, Bowers

tendered a resignation letter to her partners. Although Bowers did not give a date of

No. 12-6129 Bowers v. The Ophthalmology Group Page 3

departure, the partnership agreement required a one-year notice. On March 4, 2010, the

partners voted to expel Bowers from the partnership. The following day, Bowers was

given notice of her expulsion and the reason behind it: her “Chapter 7 bankruptcy and

the creditors’ proceedings associated with such bankruptcy and other personal conduct

. . . which the Partnership, in its opinion, finds detrimental to the Partners and the

Partnership.” R. 7-8 (Expulsion Letter at 1) (Page ID #114).

After exhausting her administrative remedies, Bowers filed the instant suit on

March 5, 2012. In her amended complaint, Bowers alleged: (Count 1) gender

discrimination under Title VII; (Count 2) wrongful termination in breach of contract

and/or in violation of public policy under Kentucky common law; (Count 3) gender

discrimination under Kentucky Revised Statute 344.040; (Count 4) retaliation for

complaining about gender discrimination under Title VII; (Count 5) retaliation for

complaining about gender discrimination under Kentucky Revised Statute 344.280; and

(Count 6) misappropriation of name by defendant for commercial advantage under the

common law of Kentucky. R. 14 (Am. Compl. at ¶¶ 88–104) (Page ID #945–51).

On March 30, 2012, defendant filed a motion to dismiss under Federal Rule of

Civil Procedure 12(b) for failure to state a claim and lack of subject-matter jurisdiction,

attaching more than eight-hundred pages of evidence in support (materials that were

prepared in other matters involving the present parties). R. 6 (Def. Mot. to Dismiss)

(Page ID #42); R. 7 (Def. App.) (Page ID #78–910). Defendant argued that the evidence

established that Bowers was a partner of The Ophthalmology Group and therefore could

not file suit under Title VII. After receiving an extension, Bowers responded to

defendant’s motion on May 3, 2012, attaching more than three-hundred pages of

evidence. R. 17 (Pl. Resp.) (Page ID #961–1343). In her response, Bowers noted

correctly that “[b]ecause the Defendant has attached documentation including sworn

testimony from a previous lawsuit between the parties, Plaintiff infers that Defendant is

likewise moving for summary judgment under FRCP 56.” Id. at 3 (Page ID #963).

Bowers argued that she could avail herself of Title VII protections because she was

merely a nominal partner. Id. at 13 (Page ID #973).

No. 12-6129 Bowers v. The Ophthalmology Group Page 4

On May 16, 2012, Bowers filed a motion to disqualify defendant’s counsel. R.

24 (Pl. Mot. to Disqual.) (Page ID #1349–55). Bowers pointed to two instances where

a past attorney-client relationship existed between her and defendant’s counsel, an

attorney at M&L.1 First, another attorney at M&L represented Bowers when she

attempted to establish an additional ophthalmology practice in Louisville, Kentucky in

2008. Second, M&L counseled and advised The Ophthalmology Group regarding the

potential expulsion of a male partner in 2005. The Ophthalmology Group responded to

Bowers’s motion to disqualify, attaching confidential documentation to support its

argument that there was no conflict from the prior attorney-client relationship between

M&L and Bowers. R. 29 (Def. Resp. to Pl. Mot. to Disqual.) (Page ID #1752–1864).

In an order filed August 22, 2012, the district court converted defendant’s motion

to dismiss into a Rule 56 motion for summary judgment, pursuant to Rule 12(d), and

granted the motion in favor of defendant. R. 41 (D. Ct. Op. at 2, 11) (Page ID #1968,

1977). The district court determined that “as a matter of law, Bowers was a partner in

the Ophthalmology Group” and that as such, “Bowers is not entitled to bring claims

under Title VII.” Id. at 10 (Page ID #1976). The district court declined to exercise

supplemental jurisdiction over Bowers’s state-law claims and dismissed them without

prejudice. Id. at 11 (Page ID #1977). The district court also denied “as moot” Bowers’s

motion to disqualify defendant’s counsel because it had granted summary judgment to

defendant and had dismissed Bowers’s remaining state-law claims. Id. Bowers timely

appealed and filed a motion to disqualify defendant’s counsel on appeal. A single judge

of this court denied that motion but noted that the issue could be reexamined by the

merits panel. Bowers v. The Ophthalmology Group, No. 12-6129 (6th Cir. December

28, 2012) (unpublished order).

1

Given that there is no dispute that the conflict in the present case could be imputed, this opinion

will not identify which attorneys at M&L worked on which matters. This is not to say, however, that all

former-client conflicts are imputed across an entire firm. See, e.g., MODEL RULES OF PROF’L CONDUCT

R. 1.9 cmt. 4 (2011); id. at R. 1.10.

No. 12-6129 Bowers v. The Ophthalmology Group Page 5

II. DISQUALIFICATION OF DEFENDANT’S COUNSEL ON APPEAL

Bowers argues that defendant’s counsel must be disqualified on appeal because

of a conflict of interest. In particular, Bowers alleges that M&L represented her in two

matters that are substantially related to the present case: (1) Bowers’s attempt to

establish an additional practice in Louisville and (2) The Ophthalmology Group’s

potential expulsion of a male partner. We agree with Bowers that M&L must be

disqualified.

As adopted in Dana Corp. v. Blue Cross & Blue Shield Mutual of Northern Ohio,

disqualification of counsel is appropriate if “(1) a past attorney-client relationship

existed between the party seeking disqualification and the attorney it seeks to disqualify;

(2) the subject matter of those relationships was/is substantially related; and (3) the

attorney acquired confidential information from the party seeking disqualification.”

900 F.2d 882, 889 (6th Cir. 1990). Our decisions have not made clear how the Dana

analysis operates in conjunction with this court’s rule that attorneys are “subject to the

rules of professional conduct or other equivalent rules of the state where the attorney’s

principal office is located.” 6TH CIR. R. 46(b); compare Dana, 900 F.2d 882 (involving

federal and state-law claims), with Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.

Alticor, Inc., 472 F.3d 436 (6th Cir. 2007) (applying the Michigan Rules of Professional

Conduct to disqualify an attorney on appeal). Regardless, the effect of using the

Kentucky Rules of Professional Conduct in place of or in conjunction with our Dana

analysis is minimal at best because the relevant Kentucky Rule is essentially the same:

“A lawyer who has formerly represented a client in a matter shall not thereafter represent

another person in . . . a substantially related matter in which that person’s interests are

materially adverse to the interests of the former client.” KY. S. CT. R. 3.130(1.9)(a).

Similarly, the relevant Kentucky Rules of Professional Conduct discussed in this opinion

are the same as the American Bar Association’s (ABA) Model Rules of Professional

Conduct. See, e.g., MODEL RULES OF PROF’L CONDUCT R. 1.9(a) (2011) (“A lawyer

who has formerly represented a client in a matter shall not thereafter represent another

person in . . . a substantially related matter in which that person’s interests are materially

No. 12-6129 Bowers v. The Ophthalmology Group Page 6

adverse to the interests of the former client unless the former client gives informed

consent, confirmed in writing.”).

Applying this framework to M&L’s representation of Bowers in her efforts to

establish an additional practice in Louisville, there is no dispute that a past attorney-

client relationship between Bowers and M&L existed during that representation and that

M&L acquired confidential information. Therefore, our resolution turns on whether

M&L’s representation of Bowers in her attempt to establish a practice in Louisville is

“substantially related” to the present case. We have not explored previously the contours

of what constitutes “substantially related,” so we take this opportunity now to do so.

Complicating matters slightly is that the comments to Rule 1.9 make clear that

the “former client is not required to reveal the confidential information learned by the

lawyer in order to establish a substantial risk that the lawyer has confidential information

to use in the subsequent matter.”2 KY. S. CT. R. 3.130(1.9 cmt. 3); MODEL RULES OF

PROF’L CONDUCT R. 1.9 cmt. 3 (2011); see RESTATEMENT (THIRD) OF THE LAW

GOVERNING LAWYERS § 132 cmt. d(iii) (2000) (“A concern to protect a former client’s

confidential information would be self-defeating if, in order to obtain its protection, the

former client were required to reveal in a public proceeding the particular

communication or other confidential information that could be used in the subsequent

representation.”). Given this limitation, we must determine whether matters are

“substantially related” while avoiding specific inquiries into the attorney’s representation

of a now-adverse client.

The comments to Rule 1.9 state that “[m]atters are ‘substantially related’ . . . if

they involve the same transaction or legal dispute or if there is otherwise 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.” KY. S. CT. R. 3.130(1.9 cmt. 3) (emphasis added); MODEL RULES OF PROF’L

2

For this reason, our prior single-judge order was wrong to state that “it [has not] been shown that

any confidential information was disclosed that would pose a conflict.” Bowers v. The Ophthalmology

Group, No. 12-6129 (6th Cir. December 28, 2012) (unpublished order).

No. 12-6129 Bowers v. The Ophthalmology Group Page 7

CONDUCT at R. 1.9 cmt. 3 (emphasis added); see RESTATEMENT (THIRD) OF THE LAW

GOVERNING LAWYERS § 132 (2000). In a well-regarded opinion, a federal district court

in Kansas explained:

In determining whether a substantial relationship exists, the court

evaluates the similarities between the factual bases of the two

representations. A commonality of legal claims or issues is not required.

At a functional level, the inquiry is whether the attorneys were trying to

acquire information vitally related to the subject matter of the pending

litigation. To accomplish this inquiry, the court must be able to

reconstruct the attorney’s representation of the former client, to infer

what confidential information could have been imparted in that

representation, and to decide whether that information has any relevance

to the attorney’s representation of the current client. What confidential

information could have been imparted involves considering what

information and facts ought to have been or would typically be disclosed

in such a relationship. Consequently, the representations are

substantially related if they involve the same client and the matters or

transactions in question are relevantly interconnected or reveal the

client’s pattern of conduct.

Koch v. Koch Indus., 798 F. Supp. 1525, 1536 (D. Kan. 1992) (quotation marks and

citations omitted); see Charles W. Wolfram, Former Client Conflicts, 10 Geo. J. Legal

Ethics 677, 716 (1997) (describing the Koch standard as “the most apt delineation of

how ‘substantial relationship’ should be determined”). The analyses under the Kentucky

Rules, the Model Rules, and Koch are essentially the same: the court must look to the

general type of information that the potentially conflicted lawyer would have been

exposed to in a normal or typical representation of the type that occurred with the now-

adverse client. See GEOFFREY C. HAZARD & W. WILLIAM HODES, THE LAW OF

LAWYERING § 13.5 (3d ed. 2013). Admittedly, this approach has its difficulties, most

notably that reconstructing a representation using generalities is less exact than

examining what actually happened. Nonetheless, this method presents a necessary

alternative to engaging with the specific—perhaps confidential—facts surrounding a

potentially conflicted attorney’s prior representation of a now-adverse client.3 See

3

In fact, the present case illustrates an additional danger with the use of confidential information.

M&L should not have attached confidential documentation regarding its representation of Bowers to The

Ophthalmology Group’s reply to Bowers’s motion to disqualify counsel. At the district court, M&L

No. 12-6129 Bowers v. The Ophthalmology Group Page 8

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 132 cmt. d(iii) (2000)

(“The substantial-relationship test avoids requiring disclosure of confidential information

by focusing upon the general features of the matters involved and the inferences as to

the likelihood that confidences were imparted by the former client that could be used to

adverse effect in the subsequent representation.”); see also Analytica, Inc. v. NPD

Research, Inc., 708 F.2d 1263, 1269 (7th Cir. 1983) (“The ‘substantial relationship’ test

has its problems, but conducting a factual inquiry in every case into whether confidences

had actually been revealed would not be a satisfactory alternative.”). Adopting these

approaches now, we must examine whether there is a substantial risk that confidential

information as would normally or typically have been obtained in M&L’s prior

representation of Bowers would materially advance The Ophthalmology Group’s

position in the present case.4

Applying this approach, we conclude that M&L’s representation of Bowers in

her attempt to establish an additional practice in Louisville is substantially related to the

present case. In a normal or typical representation of this type, M&L likely would have

obtained confidential information regarding Bowers’s relationship with her partners at

The Ophthalmology Group. When a partner seeks to establish an additional practice

separate from her partnership, it seems very likely that the partner would discus her

asserted that the disclosure of such information was permissible:

The use of otherwise confidential file material related to Dr. Bowers is permissible

pursuant to Ky. SCR Rule 3.130[1.6(b)(3)] (Model Rule 1.6(b)(3)) (“A lawyer may

reveal information relating to the representation of a client to the extent the lawyer

reasonably believes necessary. . . to respond to allegations in any proceeding . . .

concerning the lawyer’s representation . . .”).

R. 29-1 (Def. Memo in Resp. to Pl. Mot. to Disqual. at 8 n.3) (Page ID #1760). Contrary to what M&L

argued at the district court, the commentary to Rule 1.6 makes it absolutely clear that Rule 1.6 “governs

the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s

representation of the client” and instructs the reader to see “Rule 1.9(c)(2) for the lawyer’s duty not to

reveal information relating to the lawyer’s prior representation of a former client.” KY. S. CT. R. 3.130(1.6

cmt. 1); MODEL RULES OF PROF’L CONDUCT at R. 1.6 cmt. 1. Rule 1.9(c)(2) states: “A lawyer who has

formerly represented a client in a matter or whose present or former firm has formerly represented a client

in a matter shall not thereafter . . . reveal information relating to the representation except as these Rules

would permit or require with respect to a client.” KY. S. CT. R. 3.130(1.9(c)(2)); MODEL RULES OF PROF’L

CONDUCT at R. 1.9(c)(2). M&L has failed to identify any rule that would permit or require the disclosure

of such information, and we fail to see one that would apply.

4

Because it did not occur here, we express no opinion on the district court’s ability to conduct

an in camera review of evidence related to M&L’s prior representation of Bowers at the request of Bowers,

the party seeking disqualification.

No. 12-6129 Bowers v. The Ophthalmology Group Page 9

confidential motivations for doing so with her attorney. For example, in the present case

Bowers could have disclosed to M&L that she was not establishing an additional

practice because she felt powerless at The Ophthalmology Group but simply because she

wanted to make more money. This would be detrimental to Bowers’s Title VII claim

because she alleged that The Ophthalmology Group discriminated against her by not

giving her powers that were otherwise accorded to full partners. It seems equally likely

that an attorney in this type of representation would want to understand whether there

could be backlash from the partnership towards her client for establishing an additional,

separate practice. Imagine a scenario that could have happened in the present case in

which Bowers communicates to M&L: “Who cares what my partners think, I am a full

partner too, so I can do as I please.” This information would undermine Bowers’s Title

VII claim, as pleaded, because it would cut against her assertion that she is merely a

“nominal” partner (and therefore can avail herself of Title VII’s protections).

Given these scenarios, there is a substantial risk that confidential information as

would normally or typically have been obtained in M&L’s prior representation of

Bowers would materially advance The Ophthalmology Group’s position in the present

case. Therefore, the matters are substantially related under Dana. For this reason, we

grant Bowers’s motion to disqualify M&L from representing The Ophthalmology Group

on appeal. Given this ruling, we need not address whether M&L’s counseling of The

Ophthalmology Group (which included Bowers at the time) when it considered expelling

one of its male partners requires disqualification under Dana. Likewise, we have no

occasion to address any other issues presented on this appeal. We remand the case to

the district court for further proceedings with instructions to disqualify M&L on remand.

III. DISQUALIFICATION OF DEFENDANT’S

COUNSEL AT THE DISTRICT COURT

As this case illustrates, when counsel is disqualified, a court should not reach the

other questions or motions presented to it through the disqualified counsel. Here,

however, the district court first granted summary judgment in favor of The

Ophthalmology Group and then dismissed Bowers’s motion to disqualify “as moot.” On

No. 12-6129 Bowers v. The Ophthalmology Group Page 10

appeal, The Ophthalmology Group asserts that “[t]here is nothing extraordinary about

a district court denying ‘as moot’ a motion to disqualify counsel when it has decided to

dismiss the underlying case.” Appellee Br. at 58. We disagree and observe that the

cases cited by The Ophthalmology Group in support of its position do little to convince

us otherwise because none offer any analysis on the issue. See Bardsley v. Powell,

Trachtman, Logan, Carrle & Bowman, P.C., 916 F. Supp. 458, 465 (E.D. Pa.) (denying

plaintiff’s motion to disqualify counsel as moot after granting summary judgment in

favor of defendants), aff’d, 106 F.3d 384 (3d Cir. 1996) (table); Shanley v. Hanna, No.

97-CV-1849(NPM), 1998 WL 146250, at *4 (N.D.N.Y. March 24, 1998) (unpublished

decision) (“Inasmuch as the court grants defendants [sic] motion [to dismiss], it need not

address the defendants [sic] remaining contentions nor defendants [sic] motion to

disqualify [plaintiff’s] attorney.”); In re Hildreth, 165 B.R. 429 (Bankr. N.D. Ohio 1994)

(dismissing debtors’ Chapter 12 bankruptcy case and holding moot creditor’s motion to

disqualify debtor’s counsel).

A district court must rule on a motion for disqualification of counsel prior to

ruling on a dispositive motion because the success of a disqualification motion has the

potential to change the proceedings entirely. This is especially important when a district

court rules on a Rule 56 motion for summary judgment. The reason is simple: if counsel

has a conflict from previously representing the party seeking disqualification, as was

alleged in the present case, there is a risk that confidential information could be used in

preparing or defending the motion for summary judgment in violation of Dana Corp. v.

Blue Cross & Blue Shield Mutual of Northern Ohio, 900 F.2d 882 (6th Cir. 1990), or the

relevant state rules of professional conduct. In other words, a potentially conflicted

counsel’s confidential information could infect the evidence presented to the district

court. Therefore, a district court must reach the merits of a disqualification motion

before ruling on a dispositive motion.5 For this reason, the district court erred in the

present case by failing to rule on the merits of Bowers’s motion to disqualify defendant’s

5

Perhaps this concern is not as great when a district court rules on a Rule 12(b)(6) motion to

dismiss because, unlike a Rule 56 motion that relies on evidence, a Rule 12(b)(6) motion is based solely

on the pleadings. Nonetheless, even when a Rule 12(b)(6) motion is involved, a district court should rule

first on the motion to disqualify counsel to avoid any chance of infecting the proceedings.

No. 12-6129 Bowers v. The Ophthalmology Group Page 11

counsel prior to granting summary judgment in favor of defendant. Therefore, we vacate

the district court’s summary-judgment ruling and remand the case for proceedings

consistent with this opinion. Given our holding disqualifying M&L on appeal, the

district court need not conduct a disqualification hearing but is, instead, instructed to

disqualify M&L on remand. Defendant must obtain counsel not subject to a conflict of

interest to ensure that the further proceedings are not subject to the possible taint of

confidential information.

IV. CONCLUSION

For the reasons set forth in this opinion, we GRANT Bowers’s motion to

disqualify M&L, The Ophthalmology Group’s counsel on appeal, VACATE the district

court’s grant of summary judgment, and REMAND the case for further proceedings

with instructions to disqualify M&L on remand.

No. 12-6129 Bowers v. The Ophthalmology Group Page 12

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DISSENT

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GRIFFIN, Circuit Judge, dissenting. I respectfully dissent. While I agree with

the majority that the district court erred in failing to rule on the merits of plaintiff

Bowers’s motion for disqualification of counsel prior to ruling on defendant The

Ophthalmology Group’s dispositive motion, any error in this regard was harmless in

light of Bowers’s failure to establish a conflict of interest—specifically, that McMurry

& Livingston PLLC’s (“M&L’s”) prior and current representations are “substantially

related” as required by the applicable rules of professional conduct. Because the district

court did not otherwise err in determining that defendant was entitled to summary

judgment as a matter of law with regard to Bowers’s Title VII claims, I would affirm.

“Motions to disqualify are viewed with disfavor and disqualification is

considered a drastic measure which courts should hesitate to impose except when

absolutely necessary.” Valley-Vulcan Mold Co. v. Ampco-Pittsburgh Corp., 237 B.R.

322, 337 (B.A.P. 6th Cir. 1999), aff’d 5 F. App’x 396 (6th Cir. 2001) (citation and

internal quotation marks omitted). A party seeking disqualification carries a heavy

burden and must meet a high standard of proof. Id. (citation omitted). Under the

analogous requirements of Ky. S. Ct. R. 3.130 (1.9(a)), ABA Model Rules of

Professional Conduct 1.9(a) (2011), and this circuit’s tripartite test in Dana Corp. v. Blue

Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882, 889 (6th Cir. 1990), a former client

moving for disqualification must demonstrate, inter alia, that “the matters embraced

within the pending suit are substantially related to the matters or causes of action

wherein the attorney previously represented [the former client].” Gen. Elec. Co. v.

Valeron Corp., 608 F.2d 265, 267 (6th Cir. 1979) (citation omitted). “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.” ABA Model Rules of Professional Conduct 1.9 cmt.

No. 12-6129 Bowers v. The Ophthalmology Group Page 13

3; see also KY. S. CT. R. 3.130 (1.9 cmt. 3) (same). “The underlying question is whether

the lawyer was so involved in the matter that the subsequent representation can be justly

regarded as a changing of sides in the matter in question.” ABA Model Rules of

Professional Conduct 1.9 cmt. 2.

As the basis for her motion for disqualification, Bowers points to two prior

instances in which M&L represented her: (1) defendant’s potential expulsion of a male

partner in 2005, and (2) her attempt to establish a practice in Louisville, Kentucky in

2008. The existence of an actual past attorney-client relationship stemming from these

consultations is not in dispute in this case. However, contrary to Bowers’s assertions,

disqualification is not required because these matters bear no “substantial relationship”

to the present Title VII action.

In 2005, defendant’s partners became concerned about rumors of inappropriate

relations between one of their physicians and non-parties to this case. Defendant’s

partners engaged in joint discussions, where all partners (including Bowers) were

present, with M&L’s attorneys regarding the prospect of expelling the physician. In the

course of these consultations, M&L prepared a draft indemnification agreement that

inured to the benefit of defendant; however, the agreement was never signed or executed

because the offending physician rectified his conduct to the satisfaction of defendant’s

partners.

This 2005 matter obviously does not involve “the same transaction or legal

dispute” as the present case, which entails issues of alleged gender discrimination and

retaliation, and Bowers’s subsequent bankruptcy, insolvency, and purported diversion

of business to a competitor. Moreover, since the 2005 legal consultations transpired in

the context of group partnership meetings with M&L’s attorneys, no communications

were made by Bowers to counsel that were unknown to the other physicians and hence

there was not “a substantial risk that confidential factual information as would normally

have been obtained in the prior representation would materially advance [defendant’s]

position in the subsequent matter.” ABA Model Rules of Professional Conduct 1.9

cmt. 3.

No. 12-6129 Bowers v. The Ophthalmology Group Page 14

Nor is the present case “substantially related” to M&L’s 2008 representation of

Bowers on an individual basis in her aborted attempt to establish a practice in Louisville.

Bowers sought to perform refractive surgery on a once-a-week basis in Louisville while

overseeing her restaurant there, a franchise of the Mongolian Grill. In 2008, defendant’s

practice manager referred Bowers to an attorney with M&L, for the purpose of creating

a corporate entity known as Refractive Surgery of Louisville, PLLC. Bowers’s activities

in Louisville would have no competitive effect on defendant’s medical practice in

Paducah, over 200 miles away, and her proposal was made with the knowledge and

consent of defendant’s partners. However, Bowers’s plans never materialized because

she ultimately decided, for various reasons, including the failure of her restaurant

business, not to perform medical procedures in Louisville. Bowers’s PLLC was never

used, and it was administratively dissolved in 2009.

The events underlying the present litigation started in late 2009 and early 2010.

On November 9, 2009, Bowers tendered a resignation letter to defendant’s partners.

Although her partnership agreement required a one-year notice, she did not state when

she intended to depart. Bowers allegedly began secret discussions with a direct

competitor, Eyecare Associates, which had an office across the street from defendant in

Paducah.

On February 25, 2010, Bowers filed a Chapter 7 bankruptcy petition to resolve

her restaurant debt. That same month, she unilaterally added the office location of

Eyecare Associates to malpractice insurance coverage paid for by defendant. Shortly

thereafter, defendant’s partners learned that Bowers intended to work with Eyecare

Associates. On March 4, 2010, after consulting with an M&L attorney, they

unanimously voted to expel Bowers from the partnership, citing “your Chapter 7

bankruptcy and . . . other personal conduct on your part which the Partnership, in its

opinion, finds detrimental to the Partners and the Partnership . . . .” In March 2012,

Bowers filed the instant action against defendant, alleging gender discrimination and

retaliation under Title VII, and violations of state law. A state-court action is also

pending. Defendant is represented by M&L in these cases.

No. 12-6129 Bowers v. The Ophthalmology Group Page 15

Unlike the majority, I simply cannot conclude that M&L’s limited 2008

transactional work for Bowers for the narrow purpose of forming a now-defunct

company, with the full knowledge and consent of defendant, is substantially related to

the present matter, so as to justify the disqualification of M&L in this case. The

majority’s opinion is rife with speculative scenarios regarding confidential information

that Bowers may have shared with M&L regarding her relationship with her partners in

The Ophthalmology Group. But Bowers’s conclusory assertions that issues in the

former and current representations are related and that confidences were imparted to

M&L in the 2008 consultations that would unfairly advance defendant’s cause herein do

not suffice to fulfill the heavy burden on Bowers to justify disqualification. M&L’s

assistance in setting up a corporation, and the personal financial information imparted

by Bowers that predominated this task, have little or no relationship to her current claims

of discrimination and retaliation in violation of federal and state law. Bowers’s failure

to establish this essential element dooms her argument that a conflict of interest exists.

Reaching the merits of defendant’s dispositive motion to dismiss, I would affirm

the district court’s grant of summary judgment in favor of defendant for the reasons

stated in its well-reasoned decision below. As the district court properly determined,

Bowers was a partner of The Ophthalmology Group, not an “employee” afforded

protection under Title VII.

“The determination of whether a plaintiff qualifies as an employee under the Act

‘is a mixed question of law and fact’ that a judge normally can make as a matter of law.”

Weary v. Cochran, 377 F.3d 522, 524 (6th Cir. 2004) (quoting Lilley v. BTM Corp.,

958 F.2d 746, 750 n.1 (6th Cir. 1992)). In making this determination, this court looks

to the common-law agency test, in which “appellate consideration reviews numerous

factors impacting the employment relationship to be judged in arriving at a decision with

no one decisive factor.” Simpson v. Ernst & Young, 100 F.3d 436, 443 (6th Cir. 1996);

see also Shah v. Deaconess Hosp., 355 F.3d 496, 499 (6th Cir. 2004). The district court

correctly held that the relevant indicia of being an “employee” are not present in this

case; instead, the evidence of record clearly demonstrates that Bowers enjoyed

No. 12-6129 Bowers v. The Ophthalmology Group Page 16

partnership status through a partnership agreement, engaged in decision-making with her

partners, and was compensated according to a partnership formula. Defendant was

therefore entitled to judgment as a matter of law with regard to Bowers’s Title VII

gender discrimination and retaliation claims, and the district court did not abuse its

discretion in declining to exercise supplemental jurisdiction over Bowers’s remaining

state-law claims.

For the foregoing reasons, I would affirm the district court’s judgment.