United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
VERIFIED MOTION TO DISQUALIFY COUNSEL OF RECORD FOR
DEFENDANTS MORENO AND LEHR
GAIL DEIN, UNITED STATES MAGISTRATE JUDGE
matter is before the court on “Plaintiff's Verified
Motion to Disqualify Counsel of Record for Defendants
Federico A. Moreno and Alison W. Lehr Pursuant to 28 C.F.R.
50.15(b).” (Docket No. 97). Therein, Plaintiff contends
that representation of Defendants Moreno and Lehr by the
United States Attorney's Office (“USAO”) is
prohibited under 28 C.F.R. § 50.15(b), arguing that
Defendants' alleged conduct took place outside the scope
of their federal employment and that the expenditure of
taxpayer dollars for such representation is against the
interests of the United States. After careful consideration
of the parties' written submissions and the record, the
motion is DENIED. As discussed more fully below,
determinations as to whether an individual is acting within
the scope of his or her federal employment, and whether
providing him or her with representation would be within the
interests of the United States, pursuant to 28 C.F.R. §
50.15(b), are left to the discretion of the Department of
Justice (“DOJ”), and this court finds no basis to
disturb the DOJ's exercise of its discretion.
STATEMENT OF FACTS
court summarizes the relevant facts as alleged in the
Plaintiff's Second Amended Complaint. (Docket No. 57
(“SAC”)). In 2018, the Plaintiff, Jonathan
Mullane, then a law student at the University of Miami Law
School, interned with the USAO in Miami. (See SAC
¶¶ 8, 125). At the time, Plaintiff was also a party
in a civil action that was before Defendant Moreno, a federal
judge for the United States District Court for the Southern
District of Florida. (See id. ¶¶ 10, 31).
USAO intern, Plaintiff went to Defendant Moreno's
chambers to obtain copies of the record in his civil suit.
(See id. ¶ 90). Following Plaintiff's visit
to Defendant Moreno's chambers, Defendant Moreno
allegedly spoke with acting United States Attorney Benjamin
C. Greenberg (“U.S. Attorney Greenberg”).
(Id. ¶ 15). During a telephone call with U.S.
Attorney Greenberg, Defendant Moreno allegedly stated that
Plaintiff had “pretended” that he had been sent
by the United States government in order to
“deceptively" obtain copies of the record in his
civil suit from Defendant Moreno's clerk. (Id.
¶¶ 15-17, 31). Plaintiff further alleges that
Defendant Moreno accused him of violating 18 U.S.C. §
912, which prohibits the impersonation of an officer or
employee acting under the authority of the United States.
(Id. ¶ 30). Plaintiff alleges that Defendant
Moreno's accusation of criminal conduct is both erroneous
and malicious. (Id.).
Moreno then held a hearing on the Plaintiff's civil suit,
during which Defendant Moreno questioned Plaintiff about the
visit to his chambers and Plaintiff's conversation with
the clerk. (See id. ¶ 52; see generally
id. Ex. A). During the hearing, Defendant Moreno accused
Plaintiff of “gross and absolute misconduct.”
(Id. Ex. A at 18). Defendant Moreno's claims
caused the USAO to sever its employment agreement with
Plaintiff. (Id. ¶ 17). The United States
Securities and Exchange Commission (“SEC”), with
which Plaintiff had secured a future internship, later
rescinded its employment offer after parts of the hearing
transcript were published online on the website “Above
the Law.” (See id. ¶¶ 9, 112-13).
Plaintiff alleges Defendant Moreno acted outside the scope of
his professional authority by willfully and knowingly
interfering with Plaintiff's respective employment
agreements with the USAO and SEC. (Id. ¶¶
Lehr is an attorney for the USAO in Miami. (Id.
¶ 45). Defendant Lehr served as Plaintiff's
supervisor while he was an intern. (Id. Ex. A at
18). Plaintiff alleges Defendant Moreno unlawfully demanded
Plaintiff's timesheets from Defendant Lehr, and that
Defendant Lehr unlawfully complied with the request,
transmitting Plaintiff's employment records without
Plaintiff's consent. (Id. ¶ 40-41).
subsequently filed suit, asserting numerous common law tort
claims and state statutory claims against Defendants, as well
as a Bivens claim.
has chosen to provide legal representation for both
Defendants Moreno and Lehr.
to 28 C.F.R. § 50.15(a), the DOJ may represent federal
employees who have been sued in their individual capacity
“when the actions for which representation is requested
reasonably appear to have been performed within the scope of
the employee's employment and the Attorney General or his
designee determines that providing representation would
otherwise be in the interest of the United States.”
Such representation is unavailable when the employee's
alleged conduct does not reasonably appear to have occurred
within the scope of his or her federal employment or when the
DOJ otherwise determines that providing such representation
does not serve the United States's interests. 28 C.F.R.
§ 50.15(b)(1), (2). Plaintiff asserts that both of these
conditions prohibit the DOJ from providing representation to
Defendants Moreno and Lehr.
to disqualify are sometimes used as a procedural tactic to
harass opposing counsel, and care must be taken that such
motions are not being “invoked by opposing parties as
procedural weapons.” See Kevlik v. Goldstein,
724 F.2d 844, 848 (1st Cir. 1984) (internal quotations and
citation omitted) (affirming disqualification of private
counsel for ethics violation after finding no improper motive
behind the motion); see also Eaves v. City of
Worcester, C.A. No. 12-10336-TSH, 2012 WL 6196012, at *2
(D. Mass. Dec. 11, 2012) (noting motions to disqualify are
generally disfavored by courts because they can be used as
procedural weapons). Further, motions to disqualify
“must be considered in light of the principle that
courts should not lightly interrupt the relationship between
lawyer and client, and unless the underlying judicial process
will be tainted by an attorney's conduct, courts should
be reluctant to grant disqualification motions.”
Id. (internal quotations, punctuation and citations
omitted). Thus, disqualification of counsel is considered a
“drastic remedy” that should only be used as a
last resort. See United States v. Joyce, 311
F.Supp.3d 398, 403-04 (D. Mass. 2018) (analyzing the standard
of review for attorney disqualification in a criminal trial).
of DOJ's Decision to ...