United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
before the court is Protective Life Corporation's motion
to disqualify Kimberly Lavender's counsel, Reginald
McDaniel and the McDaniel Law Firm, LLC, doc. 17, and various
other related motions. The motion to disqualify is fully briefed,
docs. 51; 62; 63; 65, and ripe for review after a hearing and
oral argument. For the reasons stated below, Protective's
motion is due to be granted, and McDaniel and all attorneys
at the McDaniel Law Firm, LLC, including Robert Beeman, are
disqualified from representing Lavender in this case.
Lavender, a former employee of Protective Life, filed this
lawsuit, alleging race discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. Doc. 1. Lavender is represented by Reginald
McDaniel, based on a referral by her then coworker, Robert
Beeman, Esquire. Doc. 65-5 at 109. Beeman, a licensed lawyer,
was an officer at Protective until he resigned when
Protective confronted him about his involvement in this case.
In a nutshell, Protective asserts that Beeman provided legal
representation to Lavender by working on her case while
employed at Protective, even though he previously served as
legal counsel to Protective on similar discrimination
matters. Doc. 17. To support its contentions, Protective
presents evidence suggesting that Beeman and McDaniel are
partners at the McDaniel Law Firm, LLC. Based on this
partnership and evidence that Beeman worked on this case,
Protective asserts that Beeman violated Rules 1.7 and 1.9 of
the Alabama Rules of Professional Conduct, and that, pursuant
to Rule 1.10, McDaniel and the McDaniel Law Firm, LLC are
disqualified from representing Lavender in this action based
on Beeman's association with the law firm. See
generally doc. 51.
worked at Protective for over eighteen years. Doc. 17 at 25.
Starting in 1998, Beeman served as associate counsel and
ultimately senior associate counsel in the Legal Department.
Doc. 65-5 at 55. For “six or seven years” as
associate counsel, Beeman counseled the Human Resources
Department by working with the chief HR officer to address
employee grievances and “thorny” personnel
decisions, to investigate discrimination and employment
complaints, respond to EEOC charges, and implement and ensure
compliance with HR policies. Id. at 55-56. During
this period, Beeman was the primary contact person for ten
employment lawsuits, including six involving discrimination
allegations. Doc. 65-5 at 59-62.
March 2003, Beeman transitioned to the HR Department. Docs.
62-2 at 3; 65-5 at 57. In his new role, although Beeman still
worked as senior associate counsel, he became the primary
attorney for the HR Department. Docs. 62-2 at 3; 65-5 at 47.
Beeman worked primarily on employment matters and policies
for the next three years. Docs. 62-2 at 3; 65-5 at 57. For
example, Beeman wrote in his 2005 “Annual Performance
Review Memo” that he “served as primary legal
counsel to HR, ” that Protective only had one EEOC
charge in 2004, that he “assumed sole and full
responsibility for interpleader related actions, ” and
“served as in-house HIPAA counsel.” Doc. 65-5 at
82-83. From 2002 to 2006, Beeman “authored at least
seven legal update memos including information on legal
developments and updates on the number and type of EEOC
charges and lawsuits that Protective . . . had pending at
that time.” Id. at 66.
May 2005, Protective promoted Beeman to Second Vice
President. Id. at 57. In this role, Beeman attended
quarterly meetings with over one hundred other vice
presidents. Id. at 103. Around that same time,
Beeman transitioned to a non-legal position, working in an
ethics, diversity, and compliance position within the HR
Department. Docs. 62-2 at 3; 65-5 at 57. In that role, Beeman
worked on diversity initiatives, compliance with and the
review and modification of Protective's business code of
ethics, and helped determine what employee-related conflicts
of interest, if any, the company needed to resolve. Doc. 65-5
or 2011, Beeman moved laterally to the Protective Life
Foundation, and, on May 9, 2011, Protective also appointed
Beeman as an officer of the company. Id. at 103,
139, 145. As a Second Vice President and officer of
Protective, “Beeman was eligible to receive a bonus
based on the financial success of Protective . . . on a
yearly basis.” Id. at 139. At the Foundation,
Beeman worked as a loaned executive to United Way and also
helped with Protective's corporate charitable
initiatives. Id. at 103. Beeman worked in this role
until his resignation on August 23, 2016. Doc. 17 at 25.
met McDaniel at some point in the last three years. Doc. 65-5
at 103. Beeman and McDaniel apparently discussed working
together because in May of 2014, McDaniel posted the
following on his firm's Facebook page: “Happy to
announce a new partnership with my Harvard Law School
partner, Robert L. Beeman, Esq. Miles Law School and Harvard
coming together to form a formidable legal team!” Docs.
17 at 19; 65-5 at 104. Consistent with their discussions,
sometime in 2014 - and while still employed at Protective,
Beeman became “of counsel” to McDaniel's law
firm. Doc. 65-5 at 107. Around that same time, Beeman also
rented office space at the same address as McDaniel's law
firm, and there is evidence to support that Beeman and
McDaniel have presented themselves to clients as law
partners. See Id. at 111; docs. 17 at 16, 19; 65-2
at 33- 35, 39-67; 65-9 at 173-184. Beeman has worked and
currently is working with McDaniel on other legal matters.
Docs. 65-5 at 104; 65-9 at 40-41, 83. However, Beeman states
he and McDaniel never formed a legal partnership. Doc. 65-5
Lavender's case, while still an employee and an officer
at Protective, Beeman worked on Lavender's lawsuit by,
among other things, helping McDaniel draft a letter to the
EEOC relating to Lavender's claims and damages against
Protective. Id. at 109. In fact, Beeman acknowledges
that he represented Lavender in her dispute against
Protective and that his role as her chief counsel only ceased
when he referred her case to McDaniel:
Q: At what point did you believe that you ceased to be her
A: Certainly in any representative capacity, probably until
she met with Mr. McDaniel.
Id. at 110. However, there is evidence showing that
Beeman continued to represent Lavender afterwards.
Specifically, Beeman helped McDaniel draft the complaint and
the Rule 30(b)(6) deposition notice to Protective in this
case. Id. at 109, 118- 119. Indeed, despite
Lavender's adverse interests to Protective, Beeman
communicated with McDaniel about this case in person and via
e-mail, because “[Beeman's] intent was to help Mr.
McDaniel.” Id. at 118. Moreover, Beeman,
McDaniel, and Lavender have met on at least two occasions to
discuss Lavender's case. Id. at 111-12. Beeman
states, however, that he never disclosed to Lavender his
affiliation with McDaniel's law firm. Id. at
August 22, 2016, Beeman's supervisor, Kate Cotton, found
a fax on her desk that Beeman sent to McDaniel from
Protective's facsimile machine, regarding a separate
legal matter. Docs. 17 at 2; 52 at 32. Cotton handed the
document to Wendy Evesque, Chief HR Director. Doc. 52 at 32.
Because Protective recognized McDaniel as Lavender's
counsel in this case, Protective initiated an investigation
that led to it discovering that the McDaniel Law Firm had
Beeman listed as an attorney on its website and as a partner
of the law firm on its Facebook page. Docs. 17 at 2-3, 17,
19; 52 at 33-34. Although Protective's conflict of
interest policy required that he do so, Beeman never
disclosed to Protective that he performed outside legal work
or that he received compensation for such work and referrals.
Id. at 3, 21-23. In light of the information, the IT
Department conducted a search of Protective's server for
e-mails relating to McDaniel and found an exchange between
Beeman and McDaniel related to the Lavender case. Doc. 52 at
Evesque and Senior Associate Counsel Amy Savoie questioned
Beeman about these findings, Beeman denied any affiliation
with McDaniel's firm or that he had communicated with
McDaniel about Lavender's case outside of the referral.
Docs. 17 at 2-3; 52 at 37-38. Shortly after Evesque informed
Beeman of the decision to suspend him with pay pending an
investigation, docs. 17 at 2-3; 52 at 39, Beeman resigned,
stating in part:
After 18 plus years of service to Protective Life
Corporation, I deem it appropriate at this time to resign my
employment. I do not feel this is where my final and most
productive working years should be spent. I have serious
concerns about the manner in which employees are treated and
the complexion of the organization.
This decision is effective immediately and with no
restraints on the practice of law and who I may choose to
accept or take on as a client.
Docs. 17 at 4, 25 (emphasis added); 52 at 39.
Beeman's abrupt departure, Protective searched
Beeman's office and discovered evidence on Beeman's
computer that he was actively involved in a number of outside
legal cases, some of which were in collaboration with
McDaniel, including this lawsuit. Docs. 17 at 4-5; 52 at
40-41. The evidence included drafts of the complaint in this
case, requests for interrogatories and a deposition notice to
Protective, and draft correspondence to the EEOC regarding
Lavender's EEOC charge against Protective. Docs. 17 at 5;
52 at 42.
discovery of Beeman's involvement in this case led to the
filing of the emergency motion to disqualify McDaniel,
Lavender's counsel of record. In the motion, Protective
alleges that Beeman and McDaniel violated Alabama Rules of
Professional Conduct 1.7(b),  1.9,  and 1.10(a). The court has
adopted these rules through its local rules which require, in
part, “[e]ach attorney . . . who appears in this court
. . . to be familiar with, and shall be governed by, the
Local Rules of this court and, to the extent not inconsistent
with the preceding, the Alabama Rules of Professional Conduct
adopted by the Alabama Supreme Court; . . . .” L.R.
83.1(f). The court will now address the merits of the motion.
STANDARD OF REVIEW
to disqualify are governed by two sources of authority.
First, attorneys are bound by the local rules of the court in
which they appear . . . . Second, federal common law also
governs attorneys' professional conduct because motions
to disqualify are substantive motions affecting the rights of
the parties.” Herrmann v. GutterGuard, Inc.,
199 F. App'x 745, 752 (11th Cir. 2006) (citations
omitted). “The party bringing the motion to disqualify
bears the burden of proving the grounds for
disqualification.” Herrmann, 199 F. App'x
at 752 (citing In reBellSouth Corp., 334
F.3d 941, 961 (11th Cir. 2003)). “Because a party is
presumptively entitled to counsel of his choice, that right
may be overridden only if compelling reasons exist.”
Id. (internal quotations omitted). Disqualification
is a “harsh sanction, ” which courts should use
“sparingly.” Id. at 752 (quoting
Norton v. Tallahassee Mem'l Hosp., 689 F.2d 938,
941 n.4 (11th Cir. 1982)). Finally, objections by opposing
counsel “should be viewed with caution . . . for [such