NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas. BRIEF March 14, :28

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1 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas BRIEF March 14, :28 By: PAUL J. SCHUMACHER C onfirmation Nbr JULIE MCCORMICK vs. THOMAS J. COYNE, ETAL CV Judge: PETER J. CORRIGAN Pages Filed: 8

2 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO JULIE McCORMICK Plaintiff vs. THOMAS J. COYNE, et al. Defendants ) CASE NO.: CV ) ) JUDGE PETER CORRIGAN ) ) ) DEFENDANTS BRIEF IN ) OPPOSITION ) TO PLAINTIFF S MOTION TO ) DISQUALIFY Defendants, by and through the undersigned counsel, hereby submit the attached Brief in Opposition to Plaintiff s Motion to Disqualify Law Director Carol Horvath as counsel in this matter. WHEREFORE, having responded Defendants requests that Plaintiffs Motion be dismissed, and for such further relief as this Court deems proper. Respectfully submitted, / s / Patti 0. _ PAUL J. SCHUMACHER ( ) KRISTIN L. WEDELL ( ) Dickie, McCamey & Chilcote, P.C. 600 Superior Avenue East Fifth Third Center, Suite 2330 Cleveland, Ohio (216) Telephone (888) Facsimile pschumacher@dmclaw.com kwedell@dmclaw.com CAROL DILLON HORVATH ( ) Director of Law, City of Brook Park 6161 Engle Road Brook Park, Ohio (216) X Telephone (216) Facsimile cdhorvathlaw@gmaii.com Attorneys for Defendants

3 CERTIFICATE OF SERVICE A copy of Defendants Brief in Opposition to Plaintiffs Motion to Disqualify was filed electronically this 14th day of March, Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. Parties may access this filing through the Court s system. /s/ Paul 0, Sc&uttuuAen, _ PAUL J. SCHUMACHER ( ) Attorney for Defendants 2 Electronically Filed 03/14/ :28 / BRIEF / C V / Confirmation Nbr / BATCH

4 BRIEF IN SUPPORT Plaintiff has filed a Motion to Disqualify Attorney Horvath pursuant to Ohio Rule of Professional Conduct 3.7 and 1.7. Plaintiff has also subpoenaed Attorney Horvath for the hearing scheduled for March 16, 2017 and alleges that her testimony is key due to her role as Law Director for the City of Brook Park and that she is a crucial witness in this case. To the contrary, none of the actions of Law Director Horvath are contested matters in dispute, the testimony sought is obtainable elsewhere and this motion is filed only in an attempt to gain litigation advantage and work hardship on the Defendants. Ohio Rule of Professional Conduct 3.7 states that: 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 the legal services rendered in this case; (3) The disqualification of the lawyer would work substantial hardship on the client, (emphasis added). Disqualification of an attorney is a drastic measure that should not be taken unless absolutely necessary. Brown v. Spectrum Networks, Inc., 180 Ohio App.3d 99, Ohio-6687, 904 N.E.2d 576,1) 11 (1st Dist.), citing A.B.B. Sanitec West, Inc. v. Weinsten, hio-2116; 2007 Ohio App. LEXIS 1981 (8th Dist.), and Gonzalez-Estrada v. Glancy, 2017-Ohio-538, 2017 Ohio App. LEXIS 526 (8th Dist.) In this matter, most all of the facts are not in dispute. This is especially true considering the actions of Law Director Horvath. Her only relevant act was to send a certified letter dated December 14, 2016 advising Plaintiff of the proper procedure to memorialize her immediate resignation. (Exhibit A, attached hereto.) Of course, that 3

5 document can be marked as an Exhibit for hearing or trial and be authenticated or admitted by stipulation. No testimony is required from the Law Director. Any other requested testimony could only be an intrusion into the attorney-client privileged communications between the law director and her client. While Plaintiff may claim that her testimony about this letter is crucial, it is not strictly necessary in the context of this dispute. Under Rule 3.7, a lawyer may only be disqualified from representing her client when it is likely that the lawyer will a necessary witness. The necessity requirement of the Rule is met when it is demonstrated that the proposed testimony is relevant, material, and unobtainable elsewhere. Accordingly, if the lawyer s testimony would be duplicative or it is obtainable from other sources, the lawyer should not be disqualified. Brown v. Spectrum Networks, Inc., supra. As the Defendants here would readily stipulate to the authenticity of the December 14, 2016 certified letter, the testimony of the Law Director is clearly unnecessary and the subpoena and Motion to Disqualify were served merely to cause hardship and burden on the Defendants. Moreover, as the Butler court observed, the proper procedure for a trial court to follow in determining whether to disqualify an attorney who has been called to testify is for the court have a hearing to determine: (1) whether the attorney s testimony is admissible; and, (2) whether the attorney s testimony is necessary; then, (3) whether the attorney s testimony is relevant and material to the issues being litigated and whether the testimony is unobtainable elsewhere; and, 4

6 (4) If the court determines that the testimony is admissible and necessary, the court must then determine whether any of the exceptions set forth in Rule 3.7 apply. Butler, supra, at 904 N.E. 2d As the Eight District Court of Appeals noted in A.B.B. Sanitec West., Inc. v. Weinsten, supra.: It is well accepted that disqualification of an attorney is a drastic measure which should not be imposed unless absolutely necessary. Thus, it is important for a trial court to follow the proper procedure in determining whether disqualification is necessary. Id. at HN 8. A party s mere declaration of opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony. Further, Plaintiff alleges that a conflict of interest exists pursuant to Ohio Rule of Professional Conduct Rule 1.7. Plaintiff alleges that one of the Defendants, Council President Jim Astorino, has a position adverse to the other Defendants. Of course, nothing in the record discloses such conflict other than service of a subpoena by the Defendants upon Mr. Astorino. Subpoenas are used to secure the attendance of a witness at a hearing or trial and nothing in Rule 45 prohibits the use of subpoenas to an attorney s client.1 More importantly, however, according to the Brook Park City Charter, Council President Jim Astorino is a non-voting member of City Council whose chief duty is to preside at council meetings. He, along with six other Council Members and Mayor Coyne, were sued, not as individuals, but in their official capacities as Councilmen and as Mayor. On January 13, 2017, by a four to two vote, the majority of Council (at a Special Meeting, properly called by 4 members), voted to reject Councilwoman McCormick s 1 Defendants may actually withdraw the subpoena served on Mr. Astorino as none of the relevant facts appear to be in dispute, and his involvement can likely be resolved by fact stipulations. 5

7 rescission of her resignation. This vote is an official act of the legislative body, and as such must be accepted by all of Council, including the Council President. Therefore it is impossible for a conflict to exist between the Council President and the other Defendants, and/or Attorney Horvath, who as Law Director has the duty to represent the Defendants. Even if Mr. Astorino were to disagree with Council s decision, as Council President, sworn to uphold the Charter of the City of Brookpark, he must support the legislative action. For these reasons, Defendants request that Plaintiffs Motion to Disqualify be overruled, or, in the alternative, that an evidentiary hearing be set to properly determine the issues raised by the Motion. Respectfully submitted, /s/ "Pout 0, PAUL J. SCHUMACHER ( ) KRISTIN L. WEDELL ( ) Dickie, McCamey & Chilcote, P.C. 600 Superior Avenue East Fifth Third Center, Suite 2330 Cleveland, Ohio (216) Telephone (888) Facsimile pschumacher@dmclaw.com kwedell@dmclaw.com CAROL DILLON HORVATH ( ) Director of Law, City of Brook Park 6161 Engle Road Brook Park, Ohio (216) X Telephone (216) Facsimile cdhorvathla w@gmai I.com Attorneys for Defendants 6

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9 City0 Brook Park City Hall. jt Thomas J. Coyne, Mayor *1 December 14, 2016 Via Certified Mail, Return Receipt Requested Mrs. Julie McCormick 6375 Schaaf Drive Brook Park, OH Re: Resignation of Council-At-Large Office Dear Mrs. McCormick: You have not attended the last two meetings of the Brook Park City Council and it was mentioned at last nights' meeting that you have resigned your position as Council Person at Large. I Write to advise you that in order to properly resign your position, your resignation, preferably in writing, should be directed to the Mayor as the Chief Executive of the municipal corporation as he holds the office that is solely authorized to accept your tender of resignation. See Charter 3.03, 4.02/ Davis v. Marion County Engineer, 60 Ohio St.3d 53 {1991); Gallagher v. Ross County Sheriff, 2007-Ohio-847 (10th District Ct. of Appeals). I have also been advised that there is an from your personal address to the Council President at his personal address, and published on Facebook, that purports to be your resignation. An unsigned private that is published on a third party Facebook page is insufficient to effect your resignation from City Council. As previously stated, the Mayor of the City of Brook Park is the person to receive and accept your resignation as he exercises control over all offices, departments and divisions of the city, and is the only officer of the municipal corporation authorized to accept your resignation. Upon receipt of this communication, I request that you immediately remit a letter of resignation, if that is your desire, or otherwise directly communicate your intent to the Mayor. Very truly yours, Carol D. Horvath Director of Law Cc: Patrick McDonald, Ex. Dir. Cuyahoga County Bd. Of Elections Brent Lawler, Cuyahoga County Bd. Of Elections 6161 Engle Rood P (216) > F (216). i^-is16'28 / BRIEF / CV 17 S74383 / Confirmation Nbr / BATCH