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City of Youngston v. Joenub9/28/2001
JUDGMENT: Reversed and Remanded.
This appeal arises from a decision of the Mahoning County Court of Common Pleas granting the motion of the City of Youngstown ("Appellee") to disqualify Appellants' attorney due to a conflict of interest. Because Appellee had no standing to assert a conflict of interest on behalf of Appellants, the decision of the trial court disqualifying the attorney is reversed.
On November 22, 2000, Appellee filed a nuisance action against Joenub, Inc., d/b/a Smokey Joe's Bar located at 2722 Market Street, Youngstown. Appellee's complaint named the president of the corporation and the owner of the property as defendants. The nuisance action arose after Appellants' former security officer, Frank Jorge ("Jorge"), was indicted on four counts of trafficking in cocaine at the bar. (11/22/00 Complaint, Exh. A, C). Also on November 22, 2000, Appellee filed an application for a preliminary injunction and a motion for an ex parte temporary restraining order. The temporary restraining order was granted the same day. The court found that Appellants' business constituted a nuisance under R.C. ยง3719.10 and ordered the building to be closed and padlocked. (11/22/00 Temporary Restraining Order). A hearing on the preliminary injunction began on November 30, 2000, and continued through December 11, 2000.
During the hearing on the preliminary injunction, counsel for Appellee raised an oral motion to disqualify Appellants' Attorney Stephen R. Garea ("Garea") due to a conflict of interest. (11/30/00 Tr. p. 87). Appellee's counsel alleged that Garea had gained an unfair advantage in the instant case because he had also represented Jorge in the concurrent criminal proceedings and had access to Appellee's files through the criminal discovery process. (Tr. pp. 186, 190). Garea had briefly represented Jorge in his criminal case prior to Jorge having a permanent court-appointed lawyer. (Tr. p. 187). Appellee was primarily concerned that Garea would use the civil proceedings as an opportunity to uncover the identity of a confidential informant used in the drug transactions in the criminal case. (Tr. p. 148).
The person primarily interested in preserving the identity of the informant was Mahoning County Assistant Prosecutor Jennifer Kirr ("Kirr"). Kirr first appears in the record on December 5, 2000, during the ongoing preliminary injunction hearing. Kirr did not represent any of the parties at the time she first appears in the record. (Tr. p. 158). She was permitted to extensively address the trial judge in chambers about protecting the identity of the informant. (Tr. pp. 146- 151). She examined the evidence from the nuisance case while in chambers. (Tr. p. 152). She also had a conversation with one of Appellee's scheduled witnesses about evidentiary issues in the instant civil case. (Tr. pp. 178-179). She remained in the trial judge's chambers while various witnesses were questioned by the trial judge. (Tr. pp. 172, 178). Kirr also argued objections on behalf of Appellee during the hearing, and directly examined witnesses. (Tr. pp. 313, 355, 390). The record does not reveal in what capacity Kirr took any of the above actions during the hearing.
The hearing was further continued to December 11, 2000. Jorge's current attorney, appointed subsequent to Garea's brief period of appointment, testified that Jorge did not find any conflict of interest in anything Garea had done in either the civil or criminal cases which were pending. (Tr. p. 384). Jorge himself was called as a witness and testified that he did not find a conflict in Garea's representation. (Tr. p. 392).
Garea stated to the court that only his own clients had standing to raise a
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