Posted by: Patricia Salkin | August 22, 2018

Fed. Dist. Court in MI Denies Motion for Protective Order in Zoning Variance Case Over a Potential Attorney Conflict

This post was authored by Matthew Loeser, Esq.

Plaintiff, Bazzy Investments, LLC, d/b/a Greenfield Manor, filed this civil rights case alleging Defendants deprived Plaintiff of the reasonable use of its land, its due process rights, and its equal protection rights in violation of 42 U.S.C. § 1983. Specifically, Plaintiff claimed the civil rights violation occurred when the Zoning Board denied Plaintiff’s application for a zoning variance. The purpose of the variance was to increase the permitted occupant load of Plaintiff’s banquet hall despite limited available parking. Attorney DeBiasi witnessed and publicly participated in the meeting in which Plaintiff’s variance application was discussed and ultimately rejected, resulting in this lawsuit. Plaintiff also appealed the Zoning Board’s denial of Plaintiff’s requested parking variance.

Defendants argue in their motion for the protective order that by naming Attorney DeBiasi as a witness, Plaintiff created a situation in which there was a potential for invasion of the attorney-client privilege, as well as a conflict under Michigan Rules of Professional Conduct 3.7, which prohibits an attorney from acting as an advocate at a trial where he/she is likely to be a necessary witness. The record reflected that Defendants instigated the situation when their counsel retired and chose Attorney DeBiasi, who was already on the witness list, to take over. The court found Defendants could not first create a situation of potential conflict and within a month claim that it was causing them injury. Furthermore, the fact that Attorney DeBiasi’s public comments were non-privileged was the actual basis for the magistrate’s determination that Attorney DeBiasi was allowed to testify as to what he publically stated at the Zoning Board meeting. Lastly, the court found that Defendants failed to meet their burden that they would be unreasonably prejudiced if Attorney DeBiasi is unable to act as their trial counsel. Accordingly, the court denied Defendants’ motion for entry of a Protective Order.

Bazzy Investments v City of Dearborn, 2018 WL 3655135 (ED MI 8/2/2018)

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