Fredin v. City Pages

Background

Brock Fredin sued City Pages and Michael Mullen over an article published about him. The defendants were represented by attorneys from Ballard Spahr, which had acquired Lindquist and Vennum in January 2018. Fredin moved to disqualify Ballard and its attorneys and to strike statements that the defendants made in a memorandum and affidavit supporting their motion to dismiss.

Fredin alleged that two former Lindquist partners, Michael Olafson and Mark Jacobson, had mediated state-court matters related to him. He also alleged, based on information and belief, that former Lindquist lawyers had provided the defendants with parts of his confidential information, including his email address. Ballard confirmed that Olafson and Jacobson had volunteered as mediators in Ramsey County when Fredin’s matters were heard, but both attorneys said they did not remember mediating a matter involving him. They kept no mediation notes or files, and Ballard had no files from those mediations.

Fredin also sought disqualification because he claimed that former Lindquist associate Lindsey Middlecamp was the source for the defendants’ article and that he intended to call Middlecamp as a witness in another matter. Jacobson and Middlecamp left Lindquist before Ballard acquired it, and Olafson left shortly after the merger. The attorneys representing the defendants stated that, apart from discussions about Fredin’s motion, they had not spoken with Olafson or Jacobson about Fredin or this lawsuit and had not received information from them about the case.

Disqualification request

The court explained that disqualifying a party’s chosen lawyer is an extreme remedy and that the party seeking disqualification must show that it is required. Under Minnesota Rule of Professional Conduct 1.12, a lawyer generally may not represent someone in a matter in which the lawyer personally and substantially participated as a mediator or other neutral. In some circumstances, the rule can also affect lawyers in the same firm.

The court concluded that Fredin had not met his burden. Even assuming Olafson and Jacobson had mediated two harassment matters involving Fredin, Fredin did not show that those matters were substantially related to this lawsuit, which concerned publication of a newspaper article. Although the article referred to the harassment proceedings, Fredin did not explain how the issues in those proceedings were the same as the issues in this defamation case. He also did not identify confidential information obtained during the mediations or explain how it would be relevant. The court noted that the only specific information Fredin identified—his email address—was available on the public docket and therefore was not confidential.

The court also ruled that Rule 1.12 did not apply because Olafson and Jacobson were no longer affiliated with Ballard. It rejected Fredin’s reliance on Rules 1.9 and 1.10 because he did not claim to be a current or former client of Ballard or Lindquist. It rejected reliance on Rule 3.7 because Fredin did not claim that defense counsel were necessary witnesses. The court further explained that even calling a former lawyer from Ballard or Lindquist as a witness would not automatically require disqualification.

Request to strike statements

Fredin also invoked Federal Rule of Civil Procedure 12(f), which allows a court to strike an insufficient defense or certain improper material from a pleading. The court explained that the defendants had not filed a pleading containing the challenged statements. Instead, the statements appeared in a memorandum of law and declaration supporting the defendants’ motion to dismiss. Because Rule 12(f) cannot be used to challenge statements in those materials, the court denied Fredin’s request to strike them.

Disposition

Judge Tony N. Leung denied Fredin’s Motion to Disqualify and Strike Affirmative Defenses. The order stated that prior consistent orders remained in effect and listed possible consequences for violating the order, but it did not impose those consequences in this ruling.