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United States Court of Appeals

No. 11-2192

For the First Circuit

ROBERTO GONZALEZ-FONSECA, ET AL. Plaintiffs - Appellants v. ALEJANDRO FIGUEROA, ET AL. Defendants - Appellees _________________________ Before Lynch, Chief Judge, Howard and Thompson, Circuit Judges. ORDER OF COURT Entered: September 14, 2012 The Puerto Rico Department of Justice, counsel for appellees in this matter, has filed a motion in this court to disqualify appellants' counsel, Jose Enrico Valenzuela-Alvarado, on the grounds that he previously represented appellees in this very case as a government attorney and therefore has a conflict of interest in now representing appellants. Appellants have responded both by opposing the motion and moving to strike it. Appellees, in turn, have opposed the motion to strike. In part because the motion to disqualify was founded on an inadequate factual basis, we ordered the parties to submit affidavits concerning the factual predicate for the conflict of interest claim and to provide further briefing on the applicable law. We have now received and considered those supplemental filings. The affidavit filed by PRDOJ does not shed light on the matter. Rather, the affidavit asserts what was already known, that is, a pleading appears on the district court docket containing Valenzuela's electronic signature. The affidavit does not speak to what, if any, additional inquiries PRDOJ made among its current and former employees, or its clients, nor what, if any, files were searched, in an attempt to determine Valenzuela's level of involvement, if any, in the district court litigation.

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Valenzuela, for his part, asserts in his affidavit that he reviewed his records "that include all the cases in which he was actively engaged as a counsel of record, as a second chair counselor or as a supervisor while working as Director of Legal Affairs, and he never acted on [d]efendants['] behalf in this case." He further states that he has no "notes as a result of any meeting rendered between the appearing and the [d]efendants in their individual capacities." He concludes that he "has never participated in any stage of proceedings regarding this case, and never signed, nor filed, any pleadings in the case at hand at the United States District Court for the District of Puerto Rico." In the absence of a further round of evidentiary inquiry, we cannot definitively resolve the factual dispute. However, the burden is on appellees to demonstrate that Valenzuela's disqualification is warranted. See Murray v. Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009), Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1384 (10th Cir. 1994). Based on the record with which we have been provided, we do not see that appellees have met that burden. While a variety of rules may be relevant to the determination of whether a conflict of interest exists under these circumstances, see First Circuit Rule IV.B (looking to codes of responsibility where attorney maintains principal office, where attorney acts at time of alleged misconduct, and state in which circuit maintains its clerk's office), where the factual predicate is not established, we do not see that disqualification of Valenzuela is warranted. And, while we regard with the utmost seriousness the potential for a conflict of interest and the possibility of an appearance of impropriety, under these circumstances we do not believe that the interests embodied in the rules have been clearly transgressed. The motion to disqualify is denied, as are the motions to strike, and the motion to file a reply is granted. After issue had been completely joined on the motion to disqualify and the related motions, Valenzuela filed a motion to withdraw on the grounds that "the attorney-client relationship between the appearing and [p]laintiffs-[a]ppellants has ended." He requests leave to withdraw and contends that the motion to disqualify is thereby rendered moot. We do not see that the motion to withdraw necessarily renders the disqualification issue moot. In addition, in light of the motion to withdraw, we hereby order that, on or before September 27, appellants must either show cause why Attorney Valenzuela should not be allowed to withdraw or advise this court in writing whether they will proceed pro se or retain new counsel. In the event that appellants do not file a written response by the above-referenced date, the motion to withdraw will be granted and appellants will be designated as pro se appellants in this appeal. In their response, appellants should specify whether they intend to adopt the brief already filed on their behalf by Valenzuela. So ordered. By the Court: /s/ Margaret Carter, Clerk

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cc: Jose F. Quetglas Jordan Jose E. Valezuela-Alvarado Pedro R. Vazquez, III Lavinia Aparicio-Lopez Susana I. Penagaricano Brown Migda Liz Rodriguez-Collazo Luis R. Roman-Negron