UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LUIS A. GARCIA SAZ, and wife, MARIA DEL ROCIO BURGOS GARCIA, Plaintiffs, vs. CASE NO. 8:13-CV-220-T27 TBM CHURCH OF SCIENTOLOGY RELIGIOUS TRUST; et al Defendants. ________________________________________/
MOTION TO DISQUALIFY PLAINTIFFS’ COUNSEL AND CERTIFICATE OF COMPLIANCE WITH RULE 3.01(g)
Defendants, Church of Scientology Flag Service Organization, Inc. (Flag Church) and the Church of Scientology Flag Ship Service Organization, Inc. (Ship Church), by their undersigned counsel, move the Court for the entry of an order disqualifying plaintiffs’ counsel and prohibiting them from acting as plaintiffs’ counsel herein based upon a conflict of interest, and as grounds therefore submit the following memorandum.
MEMORANDUM
INTRODUCTION
This motion is not brought lightly. It is brought to protect the integrity and fairness of the judicial process in this case. Irrefutable and compelling evidence demonstrates that plaintiffs’ counsel of record have associated and closely communicated with, as unnamed co-counsel, one Robert Johnson, who for over a decade represented several of the defendants on numerous matters, both transactional and litigation, that were substantially related – indeed, often virtually identical – to the issues, strategy and facts that arise in this case. It would be inconceivable that Johnson himself could, or would dare, act as counsel of record for plaintiffs, as plaintiffs’
2 counsel all recognized when they did not list him as counsel of record in this case. But, under well-established authority, Johnson’s lengthy experience and deep knowledge of defendants’ confidences, strategies, litigation and settlement policies and practices with respect to the very issues raised in this case, must, under the circumstances, be attributed to counsel of record, lest those very confidences be revealed to defendants’ irreparable prejudice. But that is not all. Plaintiffs’ counsel have retained and/or consulted with two former senior Church of Scientology officials – Michael Rinder and Marty Rathbun – who for many years were intimately involved in -- in fact, in most respects in charge of – legal matters for the defendants, including matters substantially related to this litigation. These former officials not only engaged in ongoing extensive communications with the attorneys retained by defendants and other senior Scientology churches, but they also received numerous communications from such attorneys on such matters as how the churches should organize their affairs, implementation of the church policy of refunds for certain kinds of donations under specific circumstances, the legal strengths and weaknesses of church practices and positions, how to respond to intrusive discovery, and other matters of legal strategy and tactics, all on matters substantially related or identical to those that have been or will arise in this litigation. In short, plaintiffs’ counsel have proceeded in a highly risky, heedless and dubious manner with respect to the attorney-client privileged interests of the defendants, and have placed themselves in the position where they simply may not be permitted to go forward as counsel in this case.
STATEMENT OF THE CASE A.
The Claims and Issues in This Case
3 Plaintiffs are former long-term parishioners of the Scientology religion. They have sued to obtain refunds of donations they made to defendants. Specifically, plaintiffs seek return of three kinds of donations. First, plaintiffs seek to recover donations they made to defendant, CSRT, between 1998 and 2005 (Complaint ¶ 31), to support construction of the so-called “Super Power” building in Clearwater, Florida. Plaintiffs allege that they were fraudulently induced to contribute to the project by representations that CSRT needed the money to complete the project on an immediate basis, that the building was not then and still has not been completed, and that the contributions were diverted for other purposes.
Id
., ¶¶ 32-36, 86, and 93. Based on these allegations, plaintiffs have alleged counts against CSRT and Flag Church (on a theory of joint enterprise) for fraud (Counts I and III) and Unfair and Deceptive Trade Practices (Counts II and IV). These claims necessarily would involve issues concerning the religious purpose of the building, the planning and preparations for it, the process of obtaining the land, zoning and building approvals, fund raising, architectural planning, reasons for changes or alterations in plans, if any, financing, and necessity, scope and nature of discovery. Indeed, plaintiffs’ counsel publicly and inappropriately threatened at a press conference to engage in highly intrusive discovery into defendants’ financial information and even to seek, as a litigation tactic, at the very outset of the case, a deposition of the ecclesiastical leader of the Scientology religion, who holds no position with any of the defendants. Second, plaintiffs, alleging breach of contract, seek return of donations they made to Flag Church and Ship Church at unspecified times in contemplation of participating in auditing or training. See Complaint, ¶¶ 39-50, 104-109, and 110-115. The claims rest explicitly on what plaintiffs allege is the policy of the defendants. See, e.g., Complaint
,
¶¶42, 43 (resting claim on