COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Student v. Mendon-Upton Regional School District
BSEA# 25-04547
RULING ON THE PARENT’S MOTION FOR DISTRICT’S COUNSEL’S RECUSAL
On November 8, 2024, Parent filed a formal request to recuse Mendon-Upton Regional School District’s legal counsel from the instant proceeding and asked for “a hearing on the matter regarding removing counsel [for Mendon-Upton Regional School District] from the case.” As grounds thereof, she asserted that District’s Counsel
“was unable to maintain confidentiality for my daughter in a past case…. At the time, that request was not accompanied by a hearing request to determine the matter. I believe there is merit to this request, as both the district and its counsel should be held to standards ensuring the safety and privacy of students; MURSD and their counsel have failed to do this. I believe it is a violation of my right to due process hearing and my child’s right to privacy to continue with [District’s Counsel] representing the district. You will note she did not deny that she is unable to maintain confidentiality nor that the district is able to do so. Please find in favor of my child’s safety and grant the request for hearing on this matter.” (hereinafter, Parent’s Motion for District’s Counsel’s Recusal)
Parent requested a hearing on the Motion, which was held on December 5, 2024, and both parties had an opportunity to present their arguments.
For the reasons articulated below, Parent’s Motion for District’s Counsel’s Recusal is DENIED.
PROCEDURAL HISTORY
On October 28, 2024, Parent filed a due process complaint with the Bureau of Special Education Appeals (BSEA)alleging that the District had “failed to maintain the privacy and safety of my child on numerous occasions, and also has failed to uphold her 504 plans as written on multiple occasions.” According to the Hearing Request, Student “is not safe in this school district, and the only solution is for the BSEA to find in her favor and require the district to pay for transportation and tuition to a private school of our choice that will uphold her 504 plan.” According to Parent, Mendon-Upton failed to “[m]aintain confidentiality of our children, as evidenced by two privacy violations for [Student] by improper e-mail disclosure”; “[m]aintain privacy and safety of [Student], as evidenced by two violations of the district’s photo release policy where pictures of children were distributed to third parties and on public social media sites”; “[p]rovide accommodations as set forth on their 504-plans”; “[p]rovide safe transportation to and from school, as evidenced by them being dropped off at a neighbor’s house on 10/22/24”; and the “attorney for the district has failed to maintain confidentiality for [Student], as evidenced by a privacy violation by improper email disclosure.”
On November 8, 2024, Mendon-Upton Regional School District (Mendon-Upton or the District) filed aMotion to Dismiss in which the District sought dismissal, on the basis of lack of subject matter jurisdiction, of all claims relative to confidentiality violations and safe transportation. Also on November 8, 2024, Parent requested the instant “hearing on the matter regarding removing counsel from the case.”
On November 12, 2024, I issued a Ruling on Mendon-Upton Regional School District’s Motion to Dismiss, dismissing with prejudice Parent’s claims that Mendon-Upton failed to “[m]aintain confidentiality of our children, as evidenced by two privacy violations for [Student] by improper e-mail disclosure”; “[m]aintain privacy and safety of [Student], as evidenced by two violations of the district’s photo release policy where pictures of children were distributed to third parties and on public social media sites”; “[p]rovide safe transportation to and from school, as evidenced by them being dropped off at a neighbor’s house on 10/22/24”; and the “attorney for the district has failed to maintain confidentiality for [Student], as evidenced by a privacy violation by improper email disclosure.”
LEGAL STANDARDS AND APPLICATION OF LEGAL STANDARDS:
The BSEA has the authority to resolve educational disputes pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1401 et seq., and Massachusetts state law M.G.L. c. 71B, and the regulations promulgated thereunder, 34 C.F.R. Part 300 and 603 CMR 28.00, respectively. The BSEA Hearing Rules are governed by 603 CMR 28.00, federal due process procedures and the Massachusetts Administrative Procedure Act, M.G.L. c. 30A. Unless modified explicitly by the BSEA Hearing Rules, hearings are conducted under the Formal Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01 et seq.[1]
Motions to disqualify by their nature are intensely fact specific.[2] In deciding whether disqualification of counsel is warranted, a fact-finder must “reconcil[e] the right of a person to counsel of his choice on the one hand, and the obligation of ‘maintaining the highest standards of professional conduct and the scrupulous administration of justice,’ on the other.”[3] While “the right of a litigant to counsel of his choosing is not absolute and cannot always predominate,” motions to disqualify “must be considered in light of the principle that courts ‘should not lightly interrupt the relationship between a lawyer and [a] client.'”[4] Because granting a motion for disqualification has “immediate, severe, and often irreparable … consequences” for the party and disqualified attorney, courts have exercised extreme caution in allowing disqualification.[5] As stated in Borman v. Borman, 378 Mass. 775 (1979):
“When disqualification occurs after employment has begun, it temporarily (and possibly permanently) disables the litigant in his effort to prosecute a claim or mount a defense. It is not surprising therefore that the code has been used increasingly as a catalog of pretrial tactics. When needless disqualification occurs as a result of these tactics, the very rules intended to prevent public disrespect for the legal profession foster a more dangerous disrespect for the legal process…. When a lawyer, exercising his best judgment, determines that his employment will not bring him into conflict with the code, disqualification may occur only if the trial court determines that his continued participation as counsel taints the legal system or the trial of the cause before it.”[6]
Hence, disqualification should not be ordered “except when absolutely necessary.”[7] Because there are “severe consequences of stripping a party of chosen counsel[,]” judges are advised to proceed with “deliberate caution” when considering requests for disqualification.[8] They are also cautioned to “be alert that the Canons of Ethics are not brandished for tactical advantage,” especially when claims of unethical behavior are offered as grounds for disqualification.[9]
“Disqualification of a party’s counsel is a drastic and disfavored measure.”[10] Courts have granted disqualification where there is “impermissible ex parte contact with agents of the opposing party”; where there are “conflicts of interest between present and former counsel”; where the “trial attorney [is] a witness []”[11]; or “when it has been satisfactorily established that the attorney has acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings [].”[12] Some jurisdictions rely on a three-prong test to determine if disqualification is appropriate; these cases state that “the party seeking disqualification [is] required to establish (1) the existence of a prior attorney-client relationship between him and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the [plaintiff and defendant] are materially adverse.”[13]
However, motions to recuse opposing counsel are rarely successful because the bar for separating a client from its preferred legal representative is exceptionally high.[14] Even where opposing counsel received privileged documents in error, the court found that “the mere possibility of an unfair tactical advantage [did not] give rise to the drastic remedy of disqualification in cases where the disclosure results from a court order. Notably, many courts also emphasize that due to the extraordinary nature of disqualification, even if a lawyer violates a disciplinary rule or engages in unethical conduct to retrieve the privileged documents, the party seeking disqualification must demonstrate that the opposing counsel’s conduct caused severe prejudice that warrants disqualification.” [15] Even where a court found that opposing counsel “interfered with the administration of justice” by violating a state ethics rule, the judge refused to order his disqualification; in that case, the court attempted “[t]o alleviate the effects of [counsel’s] violation” by fashioning “remedies [to] address the harm that has been caused [to] permit [the] case to move forward without the need for disqualification.”[16] At least one court concluded that where a plaintiff “has asserted a historical injury,… [d]isqualifying the [opposing counsel] at this stage will not undo or remedy that injury.”[17]
Nor can disqualification of counsel be premised on general and conclusory allegations or on concerns which are merely anticipatory and speculative.[18]
Here,Parent moves to disqualify the District’s legal counsel based on her alleged past disclosure of confidential information relative to Student. Because the District enjoys the right to the counsel of its choice, the burden rests with Parent to establish the need to interfere with this relationship. [19] In determining whether it is necessary to disqualify legal counsel, I must analyze the particular facts of the case at hand.[20] Because the attorney-client relationship “should not lightly”[21] be disrupted, I exercise “extreme caution”[22] in assessing the merits of Parent’s Motion.
Application of the above legal principles to the instant matter leads me to find that Parent has not met her burden. My reasoning follows.
Parent argues that the District’s Counsel
“was unable to maintain confidentiality for my daughter in a past case[23]….I believe there is merit to this Request [for recusal], as both the district and its counsel should be held to standards ensuring the safety and privacy of students; MURSD and their counsel have failed to do this. I believe it is a violation of my right to due process hearing and my child’s right to privacy to continue with [District’s Counsel] representing the district. You will note she did not deny that she is unable to maintain confidentiality, nor that the district is able to do so.”
At the Motion Hearing, Parent contended that there must be some consequence for Counsel’s (and Mendon-Upton’s) breach of her daughter’s confidentiality.
Here, even if, in the past, Counsel had disclosed confidential information relative to Student, such actions have no impact on Parent’s ability to have a fair, confidential due process hearing at this time with the involvement of Counsel on behalf of the District. Counsel’s “continued participation as counsel” would not “taint[] the legal system” or the instant hearing.[24] Whatever harm may have been caused by the alleged prior confidentiality breaches, I cannot find that it has any impact on the integrity of this due process proceeding nor on Counsel’s ability to defend her client in this matter. Nor can Parents’ “anticipatory” concerns regarding future breaches of confidentiality meet the extraordinary bar required for disqualification.[25] For these reasons, the District’s Counsel’s recusal is inappropriate.
ORDER:
Parent’s Motion for District’s Counsel’s Recusal is DENIED.
So Ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Date: December 6, 2024
[1] See 603 CMR 28.08(5)(b).
[2] See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981); Coke v. Equity Residential Properties Trust, 440 Mass. 511, 516, 800 N.E.2d 280 (2003); Slade v. Ormsby, 69 Mass. App. Ct. 542, 546, 872 N.E.2d 223, 226 (2007).
[3] Slade, 69 Mass. App. Ct. at 545-46 (internal citations omitted).
[4] G.D. Mathews & Sons Corp. v. MSN Corp., 54 Mass.App.Ct. 18, 20, 763 N.E.2d 93 (2002), quoting from Adoption of Erica, 426 Mass. 55, 58, 686 N.E.2d 967 (1997); see also Slade, 69 Mass. App. Ct. at 546.
[5] See, e.g., Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 719 (1982); Borman v. Borman, 378 Mass. 775, 787-88, 393 N.E.2d 847, 855-56 (1979); Macheca Transp. Co. v. Phila. Indem. Ins., 463 F.3d 827, 833 (8th Cir. 2006) (quoting Banque Arabe Et Internationale D’Investissement v. Ameritrust Corp., 690 F. Supp. 607, 613 (S.D. Ohio 1988)).
[6] Borman, 378 Mass. at 787-88 (internal citations omitted).
[7] Slade, 69 Mass. App. Ct. at 546; Masiello v. Perini Corp., 394 Mass. 842, 850 (1985).
[8] Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 220, 959 N.E.2d 955, 962-63 (2012).
[9] See Serody v. Serody, 19 Mass. App. Ct. 411, 414 (1985). Although there are circumstances that require disqualification of counsel, none are asserted or applicable in the instant matter.
[10] Lopez v. Banuelos, No. 1:11-CV-466 AWI JLT, 2013 WL 4815699, at *9 (E.D. Cal. Sept. 6, 2013).
[11] Id. 2013 WL 4815699, at *6 (citing to Jones, et al., RUTTER GROUP PRACTICE GUIDE: FEDERAL CIVIL TRIALS & EVIDENCE, 4:566 (The Rutter Group 2012)).
[12] Id., 2013 WL 4815699, at *4.
[13] Graziano v. Andzel-Graziano, 196 A.D.3d 879, 880, 151 N.Y.S.3d 506, 508 (2021) (citing to additional cases utilizing this three-prong test); see WFG Nat’l Title Ins. Co. v. Meehan, 2018-Ohio-491, ¶ 25, 107 N.E.3d 60, 69 (“Ohio has adopted the three-part test for disqualification of counsel due to a conflict of interest set forth in Dana Corp. v. Blue Cross & Blue Shield Mut., 900 F.2d 882 (6th Cir.1990). The test is as follows: (1) a past attorney-client relationship must have existed between the party seeking disqualification and the attorney he or she wishes to disqualify; (2) the subject matter of the past relationship must have been substantially related to the present case; and (3) the attorney must have acquired confidential information from the party seeking disqualification. If a party moving to disqualify an attorney cannot meet the first prong of the Dana test, that party lacks standing to seek the disqualification”).
[14] See State ex rel. Rogers v. Bancorp Bank, 307 A.3d 360, 370 (Del. Super. Ct.), aff’d sub nom. Bancorp Bank, N.A. v. Rogers, 310 A.3d 428 (Del. 2023) (citing to Dunlap v. State Farm Fire and Cas. Co. Disqualification of Counsel, 2008 WL 2415043, at *1 (Del. May 6, 2008) (“A motion to disqualify must contain clear and convincing evidence establishing a violation of the Delaware Rules of Professional Conduct so extreme that it calls into question the fairness or the efficiency of the administration of justice … vague and unsupported allegations are not sufficient to meet this disqualification standard”)) (cleaned up).
[15] Coral Reef of Key Biscayne Devs., Inc. v. Lloyd’s Underwriters at London, 911 So. 2d 155, 157–58 (Fla. Dist. Ct. App. 2005).
[16] Id., 2013 WL 4815699, at *9.
[17] Kleiman v. Wright, 662 F. Supp. 3d 1247, 1256 (S.D. Fla. 2023), appeal dismissed, No. 23-11318, 2023 WL 4259341 (11th Cir. June 29, 2023).
[18] See Agena v. Cleaver-Brooks, Inc., 428 F. Supp. 3d 267, 273 (D. Haw. 2019) (the party moving for disqualification must satisfy a high standard of proof by producing substantial evidence of facts justifying disqualification such that the asserted impropriety is clear. As such, disqualification cannot be premised on general and conclusory allegations concerns which are merely anticipatory and speculative”) (internal citations and quotations omitted).
[19] Byrnes, 29 Mass. App. Ct. at 110.
[20] See Firestone Tire, 449 U.S. at 377.
[21] G.D. Mathews & Sons Corp., 54 Mass.App.Ct. at 20.
[22] See, e.g., Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 719 (1982); Borman, 378 Mass. at 787-88.
[23] I note that Parent’s confidentiality allegation is relative to a past case, not the instant case.
[24] Borman, 378 Mass. at 787-88 (internal citations omitted).
[25] See Agena v. Cleaver-Brooks, Inc., 428 F. Supp. 3d 267, 273 (D. Haw. 2019) (the party moving for disqualification must satisfy a high standard of proof by producing substantial evidence of facts justifying disqualification such that the asserted impropriety is clear. As such, disqualification cannot be premised on general and conclusory allegations concerns which are merely anticipatory and speculative”) (internal citations and quotations omitted); see also Alexander v. Tandem Staffing Sols., Inc., 881 So. 2d 607, 608 (Fla. Dist. Ct. App. 2004) (“Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly”).