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Disqualify Cleveland's outside law firm over conflict of interest, former firefighter in First Amendment-retaliation suit says

Wednesday, March 21, 2018

The former fire chief, a witness, testified that the assistant safety director, a defendant, told the chief to boot DeCrane from his job. The assistant safety director accuses the chief of lying. But the Zashin & Rich law firm claims to represent both.

Cleveland, OH – Yesterday, Plaintiff Sean DeCrane moved to disqualify the City of Cleveland's outside defense lawyers in his First Amendment-retaliation case against the City and several employees alleged to have carried out a vindictive campaign to punish DeCrane. The motion alleges that the law firm representing the City—Zashin & Rich, led by attorneys Jon Dileno and David Vance—embraced an unethical conflict of interest when it recently became counsel for non-party-witness-and-former-Cleveland-fire-chief Patrick Kelly.

The underlying suit alleges that defendant assistant safety director Edward Eckart led a retaliation campaign against former Cleveland fire-division battallion chief DeCrane based on Eckart’s mistaken belief that DeCrane leaked to the media truthful information about former fire chief Daryl McGinnis lacking training and certification to be a firefighter. McGinnis, appointed by Mayor Frank Jackson, was relieved of duty after the news of his lack of qualifications was reported. Part of the retaliation, the suit alleges, was forcing DeCrane out as head of the City's Fire Training Academy. Kelly testified under oath in the case that, when he was fire chief, Eckart—who Kelly described as a "disingenuous" boss—said he would stop trying to outsource the Academy’s training if Kelly would oust DeCrane as the Academy’s leader.

As Eckart, in response, testified that Kelly was lying.

Kelly provided the testimony about Eckart’s retaliation against DeCrane in a declaration Kelly voluntarily signed after an interview with a Chandra Law Firm law clerk. Zashin & Rich, as part of an effort to deprive DeCrane of his chosen counsel, later procured a second declaration from Kelly that included false accusations about how the law clerk conducted the interview with Kelly—statements disproved by audio recordings of the interview that were filed with the Court. The Zashin firm then tried to leverage those false statements into its ongoing effort to deprive DeCrane of his chosen counsel.

After audio recordings of the Kelly interview proved that the law clerk had provided ethically recommended cautionary instructions that Kelly falsely denied being given, Dileno swooped in to represent witness Kelly, including regarding potential civil claims arising out of Kelly's false testimony. (This, the motion to disqualify shows, was after Dileno had just previously disavowed that he represented Kelly.) But in undertaking to represent witness Kelly in the matter, the Zashin & Rich law firm embraced a conflict of interest, the motion alleges. Under Rule 1.7 of the Ohio Rules of Professional Conduct, no lawyer can provide competent and diligent representation to two clients who are accusing each other of perjury.

The motion argues that the damage inflicted by Kelly’s false testimony—though significant—pales in comparison to the harm the defendants in DeCrane’s First Amendment case caused him. The Zashin & Rich firm cannot competently and diligently advise Kelly on settlement prospects with DeCrane—which DeCrane has invited—when that would necessarily include Kelly being forthright with DeCrane about how Kelly came to provide his false declaration to Zashin & Rich. Zashin & Rich’s duties to the City of Cleveland, Eckart, and the other individual defendants—as well as its own interest in not being exposed as procuring false testimony—preclude Zashin & Rich from advising Kelly to cooperate in DeCrane’s search for the truth.

Because Zashin & Rich’s duties to Kelly will continue even if the firm now dumps Kelly in favor of its other clients, the motion argues, the firm has an unavoidable and unwaivable conflict of interest precluding its continued involvement in the DeCrane matter on behalf of any party or witness.

The motion to disqualify the Zashin & Rich law firm can be found here.

Subodh Chandra, DeCrane's lead counsel, a former Cleveland law director and former adjunct professor of legal ethics, said, "A law firm has chosen to represent both a witness who accuses a defendant of misconduct and that same defendant who denies the misconduct—and accuses the witness against him of being a liar. One doesn't have to be a rocket scientist, or have a law degree for that matter, to grasp that there's something wrong with that. Unfortunately, Cleveland's law director seems to have abandoned her responsibility to ensure that the City's outside lawyers are acting ethically and not fleecing taxpayers with pointless, unwarranted frolics. As a former law director myself, I am deeply disappointed that no one is minding the store."

The suit DeCrane v. Eckart, et al., is in the U.S. District Court for the Northern District of Ohio, Case No. 1:16-cv-2647, before Judge Christopher Boyko. The complaint alleges violations of the First and Fourteenth Amendment to the U.S. Constitution, false light invasion of privacy, and intimidation by using false writings.

Chandra, Patrick Kabat, and Patrick Haney of the Chandra Law Firm LLC,, represent DeCrane.

Related Practice Areas
Constitutional LawEmployment RetaliationFirst AmendmentGovernment Ethics, Misconduct, Fraud, & AbuseLegal Ethics & Professional ResponsibilityWhistleblower Actions (False Claims Act)

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