Estes v. ECMC Group, Inc.

          ORDER

          Landya B. McCaffferty United States District Judge.

         Charles and Alia Estes, proceeding pro se, brought suit in New Hampshire state court against Educational Credit Management Corporation (“ECMC”), alleging violations of state and federal laws arising out of ECMC's efforts to collect Alia's debt.^[1] ECMC removed the case to this court. Before the court are the following motions: (1) plaintiffs' “motion for consideration, ” which seeks to disqualify ECMC's counsel, Sulloway & Hollis PLLC (“Sulloway”) (doc. no. 5); (2) plaintiffs' motion for leave to file an amended motion for consideration (doc. no. 14); (3) ECMC's motion to seal its objection to plaintiffs' motion for consideration and exhibits attached to its objection (doc. no. 13); and (4) plaintiffs' motion to remand the case to state court (doc. no. 6).

         I. Motion for Leave to File Amended Motion for Consideration

         In their motion for consideration, plaintiffs raise a purported conflict of interest which they argue requires Sulloway to be disqualified from representing ECMC in this case. Specifically, they argue in their motion that Charles Estes is the firm's current client by virtue of his status as a residual beneficiary of a trust for which a Sulloway attorney serves as co-trustee.^[2] They contend that New Hampshire Rule of Professional Conduct 1.7 requires Sulloway's disqualification.

         In their motion for leave to file an amended motion for consideration (“motion for leave”), plaintiffs state that their original motion did not fully express their concerns over Sulloway's continued involvement in the case. They attach with their motion for leave a proposed amended motion for consideration. See doc. no. 14-1. In the proposed amended motion, plaintiffs cite two additional Rules of Professional Conduct (Rules 1.6 and 1.9), and state that Sulloway must be disqualified for the additional reason that the firm has represented Charles in various legal matters in the past.

         Although ECMC objects to plaintiffs' motion for leave, it responded in its objection to the merits of plaintiffs' proposed amended motion for consideration. The court therefore grants plaintiffs' motion for leave to file an amended motion for consideration. In light of plaintiffs' pro se status, and for the sake of judicial economy, the court will construe document no. 14-1 (the proposed amended motion for consideration) to be a supplement to plaintiffs' original motion for consideration and will address in this order the arguments raised in both filings.

         II. Motion to Seal

         ECMC objects to plaintiffs' motion for consideration, arguing that Sulloway should not be disqualified because Charles is not the firm's current client and that Sulloway's former representations of Charles are not substantially related to this case so as to require disqualification. ECMC's objection to the motion for consideration, document no. 12, includes certain details about Sulloway's past legal representation of Charles. In addition, it includes as exhibits certain communications between attorneys of the firm and Charles relating to their attorney-client relationship. ECMC asserts that some of the information included with its objection and exhibits is therefore confidential, and it moves to seal both the objection and exhibits in their entirety. Plaintiffs object to the motion to seal, though their objection largely takes issue with the substance of ECMC's objection to their motion for consideration. They do not appear to request that the information in document no. 12 nor the exhibits themselves become public.

         To overcome the strong presumption that the public should have access to judicial records, the parties must have compelling reasons. See Nat'l Org. for Marriage v. McKee, 649 F.3d 39, 70 (1st Cir. 2011); FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987). “Suffice to say that the interest in preserving a durable barrier against disclosure of privileged attorney-client information is shared both by particular litigants and by the public, and it is an interest of considerable magnitude.” Siedle v. Putnam Investments, Inc., 147 F.3d 7, 11 (1st Cir. 1998). “Indeed, this is precisely the kind of countervailing concern that is capable of overriding the general preference for public access to judicial records.” Id.

         To the extent ECMC's objection to plaintiffs' motion for consideration, document no. 12, and exhibits attached thereto, reveal information that is subject to the attorney-client privilege, compelling reasons exist to keep the information from the public domain. Sealing the entire objection and each of the exhibits, however, is not warranted because much of those filings do not implicate the attorney-client privilege. For example, the objection contains several pages of legal argument. It also contains the details of Sulloway's involvement with the Marital Trust. Not only do plaintiffs' filings, which are not sealed, provide much of the same details, but ECMC also correctly argues that the Marital Trust does not involve an attorney-client relationship as discussed further infra. Therefore, no compelling reasons exist to keep such information from the public domain.

         For these reasons, the court grants ECMC's motion to seal in part and denies it without prejudice in part. ECMC shall refile its objection and attached exhibits with limited redactions consistent with this order.

         III. Motion for Consideration

         Plaintiffs raise three separate purported conflicts of interest which they contend require Sulloway's disqualification. First, they argue that Charles is a current client of the firm because one of the firm's attorneys, R. Carl Anderson, serves as a co-trustee of the Marital Trust, of which Charles is a named residual beneficiary.^[3] Second, a Sulloway attorney, John Garvey, represented Charles in certain legal matters in 1987 and 1988. And third, a Sulloway attorney, John Harrington, represented Charles in a legal matter in 2014. The court addresses each purported conflict in turn.

         Under Local Rule 83.5, DR-1, the “Standards for Professional Conduct adopted by this court are the Rules of Professional Conduct as adopted by the New Hampshire Supreme Court, as the same may from time to time be amended by that court and any standards of conduct set forth in these rules.” The New Hampshire Professional Conduct Rules include provisions that, under certain circumstances, might require the disqualification of a party's opposing counsel. “A party seeking disqualification of an opposing party's counsel bears a heavy burden of proving facts required for disqualification.” Ponte v. Sage Bank, No. CA 14-115 S, 2014 WL 3942888, at *1 (D.R.I. Aug. 12, 2014) (internal quotation marks and citations omitted); see Galvin v. Specialized Loan Servicing LLC, No. 15-CV-386-JL, 2015 WL 10097218, at *2 (D.N.H. Dec. 9, 2015), report and recommendation adopted, No. 15-CV-386-JL, 2016 WL 614406 (D.N.H. Feb. 16, 2016).

         A. The Marital Trust

         Plaintiffs rely on New Hampshire Rule of Professional Conduct 1.7 in support of their argument that Sulloway's involvement in the Marital Trust requires its disqualification. Rule 1.7 addresses conflicts of interest between attorneys and current clients. The rule provides, in relevant part:

a) . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

N.H. R. Prof. Conduct 1.7(a). Plaintiffs argue that Charles is a current Sulloway client because he is a residual beneficiary of the Marital Trust, of which a Sulloway attorney is a co-trustee. Plaintiffs argue that, as such, Sulloway's representation of ECMC is a concurrent conflict of interest and requires Sulloway's disqualification. ECMC disagrees, arguing that Charles's status as the residual beneficiary of the Marital Trust does not make Charles a current client of Sulloway and, therefore, does not implicate Rule 1.7.

         There is no dispute that Charles, through his status as a residual beneficiary of the Marital Trust, has had contact with certain Sulloway attorneys at various points since the Marital Trust was established.^[4] But the law does not support plaintiffs' contention that this relationship makes Charles a current client of the firm.

         First, as ECMC notes, plaintiffs do not suggest that any Sulloway attorney has served or is serving as legal counsel to the Marital Trust or its beneficiaries. Rather, Attorney Anderson, and formerly Attorney Sheridan, have served as the co-trustee of the Marital Trust along with Norman R. LeBlanc, a certified public accountant and a non-lawyer who is unaffiliated with Sulloway. Thus, it does not appear that Sulloway represents the Marital Trust as its attorney. By extension, Sulloway does not represent the Marital Trust's beneficiaries.

         Even assuming that Sulloway does represent the Marital Trust as its attorney, that does not make Charles a client of the firm. An attorney's representation of a trust, without more, does not create an attorney-client relationship between the attorney and the trust's beneficiaries. See, e.g., Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998); Young v. Vrechek, No. CV 09-00403 SOM-BMK, 2013 WL 4479198, at *3-4 (D. Haw. Aug. 19, 2013) (citing cases).

         The court is sympathetic to plaintiffs' position. But Charles's status as a residual beneficiary of a trust for which a Sulloway attorney serves as a co-trustee does not make Charles a client of Sulloway. Therefore, Rule 1.7 of the Rules of Professional Conduct is inapplicable.

         B. Sulloway's Prior ...