35365-1 16-MR-111

i ~ R

~' ~ E~:~. ~ ~ - ~~~IN THE CIRCUIT COURT ,: -' GFOR THE THIRD JUDICIAL CIRCUIT ~r~ t ~ ~ --~?MADISON COUNTY, ILLINOIS CIEt~K p~ ~ ~~~ ~1 ~̀

ANNE CORI, et al., ) ~p~~~ fi n%

Plaintiffs, )

v. ) 2016 M R 000111

EDWARD R. MARTIN, JR., et ai., )

Defendants. )

DEFENDANT EDWARD R. MARTIN. JR.'S MOTION TO DISQUALIFY PLAINTIFFS' COUNSELSPENCER FANE. LLP. ERIK O. SOLVERUD. MEGAN D. MEADOWS. AND ARTHUR D. GREGG

COMES NOW Defendant EDWARD R. MARTIN, JR., by and through his attorneys HEYL,

ROYSTER, VOELKER &ALLEN, and in his Motion to Disqualify Plaintiffs' Counsel Spencer Fane,

LLP, Erik O. Solverud, Megan D. Meadows, and Arthur D. Gregg, shows the Court as follows:

1. Defendant Martin was represented by Spencer Fane, LLP (or under the prior

name of Spencer, Fane, Britt &Browne, LLP) in prior matters. These are Bergfeld v. Board of

Elections, United States District Court for the Eastern District of Missouri, No. 06-CV-01025-RWS

(primary counsel), a second case styled Bergfeld v. Board of Elections, Circuit Court of the City of

St. Louis, No. 1022-AC-15411 (legal advice given), and State of Missouri v. Blunt, Circuit Court of

Cole County, No. 08ACC-cc00379 (primary counsel). Attorney Frank Neuner of Spencer Fane

provided further legal advice to Martin in 2012, regarding the Eckers(ey case. Substantial

discovery was conducted in the cases, including Martin giving a deposition.

2. Because of this prior representation, Spencer Fane, LLP has continuing duties to

former clients. See, Rule 1.9, Illinois Rules of Professional Conduct of 2010.

Page 1 of 8

35365-1 16-M R-111

3. Rule 1.9(a) states, "A lawyer who has formerly represented a client in a matter

shall not thereafter represent another person in the same or a substantially related matter in

which that person's interests are materially adverse to the interests of the former client unless

the former client gives informed consent."

(a) No informed consent has been given by Martin, nor was it requested by the

Spencer Fane group.

(b) Unquestionably, the interests of the Spencer Fane group's current clients are

adverse to Martin's interests.

(c) The matters in which Spencer Fane represented Martin are substantially

related to the pending matter.

4. The matters in which Spencer Fane represented Martin involved allegations of

Martin's management style, employee terminations, e-mail retention, and conduct. See, Martin

Affidavit.

5. The present lawsuit involves the same allegations, as evidenced by the following:

a. Paragraph 7 of the Plaintiffs' Complaint — "failed to delineate the scope of his

duties", "used his position to proceed with his own personal agendas", "draconian approach to

leadership", "threatened resignation" of volunteers, leadership "has diminished", "[s)ubstantial

additional damage" to the group's mission, "Martin's deplorable tenure";

b. Paragraphs 24 through 26 allege actions taken by Martin with respect to e-

mails and letters;

c. Paragraphs 53 through 60 allege actions taken by Martin following the April 11

meeting;

Page 2 of 8

35365-1 16-MR-111

d. The Complaint alleges claims based upon breach of fiduciary duty (Count I),

inducement of breach of fiduciary duty (Count III), equitable action for accounting (Count N),

declaratory judgment (Count V), and injunctive relief (Count VI);

e. Comments of Plaintiffs' counsel during the April 26, 2016 hearing:

(1) Page 11 — "under Martin`s leadership Eagle Forum 501(c)(4) has

experienced chaos and division...", "Martin has failed to delineate the scope of his authority...";

(2) Page 13 — "Martin...acted in willful defiance of the power and

authority of the Eagle Forum Board...";

(3) Page 27 — "Mr. Martin fired Glyn Wright...";

(4) Page 29 — "[b]asically engaging in open warfare against the Board...";

(5) Page 32 — "evidence of the confusion and the irreparable harm...";

(6) Page 32 —recounting distributing e-mails;

(7) Page 34 — "Mr. Martin appeared on KMOX radio...and declared I am

still the President...";

(8) Page 35 — "M r. Martin fired Lois Linton";

f. The written words of Plaintiff Rosina Kovar stating:

(1) "has done more destruction in a week to Eagle Forum and Phyllis...";

(2) "Check out Ed Martin on Wikipedia and see what he cost the former

Gov. Blunt and the MO taxpayers when he worked for Gov. Blunt and had to be fired";

g. The written words of Plaintiff Cathie Adams, endorsing the following:

(1) "We knew from past experience that Mr. Martin would try to rip the

organization apart by repeating the behavior he showed in the governor's office in 2006 when

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35365-116-MR-111

he was party to illegally firing the governor's Deputy General counsel, illegally destroying key

evidence, and lying about emails on his server";

(2) "Mr. Martin has also said that he left the Missouri Republican Party by

his own volition. The truth is he was one week away from being voted out for his incompetency

in running the state party. And, as we anticipated, Mr. Martin is once again creating dissension

within the ranks of Eagle Forum by falsely accusing people of conspiring against Phyllis";

(3) "Please check out this article about Ed Martin, the new President of

Eagle Forum and make your own conclusions.

htt~:Ilwww.citizensforethics.oralcrrokedcandidates2010 (scroll and look for Ed Martin —when he

ran for office)";

h. The words of others, written after speaking with some of the Plaintiffs:

(1) "She (Jeanne Goodin) called and spoke to several of the accused

women (the Plaintiffs)";

(2) "Here it is below: Crooked Candidates 2010/CREW/Citizens for

Responsibility and Ethics in Washington. This organization reveals the ethics of congressional

candidafies and they took a closer look at Ed Martin`s past..."

i. The words of the Plaintiffs' lawyers in their motions:

(1) Page 12 of 14 of Plaintiffs' Motion to Strike, paragraph 21— "Martin's

employment history, his own understanding of his job duties and his recent personnel

maneuverings are all material to the management style which drove Plaintiffs to remove Martin

and file the present lawsuit to enforce that removal."

Page 4 of 8

35365-1 16-MR-111

6. Attorney Frank Neuner of Spencer Fane, on September 26, 2011, gave Martin "a

heads-up" that a Spencer Fane lawyer would be representing the plaintiffs in a re-districting

case, sfiating that, "Of course, I am not involved in any way."

7. On September 4, 2012, Attorney Frank Neuner advised Martin regarding

developments after the Eckersley settlement.

8. On August 1, 2014, Attorney Frank Neuner responded (apparently an automatic

response) to an e-mail from Martin with this, "If you require immediate assistance, please

contact my colleague, Megan Meadows, at mmeadows@spencerfane.com or 314.333.3905."

9. Attorney Frank Neuner left a voice mail message for Martin (transcribed and

attached) stating in part, "then a slight hiccup here which is seeing your message caused me to

check with one of my colleagues, and I don't know what it is if this is what you're calling about

but you mentioned a legal question so if this is about Eagle Forum unfortunately. I don't want

you to tell me anything about it because we're going to have a conflict of interest not me

personally I'm not involved in anything, but someone else at my law firm, ..."

10. When challenging an attorney's ability to represent a party under the "substantial

relationship" test, the Court must: (1) make a factual reconstruction of the scope of the prior

legal representation, (2) determine whether it is reasonable to infer that the confidential

information allegedly given would have been given to a lawyer representing a client in those

matters, and (3) determine whether the information is relevant to issues raised in the pending

litigation against the former client. Klehm-Marinangef v. Klehm, 363 III. App. 3d 373, 842 N.E.2d

1177, 299 III. Dec. 825 (l~ Dist. 2006). "If the court finds a substantial relationship between the

prior and subsequent representations, then the court is entitled to assume that client

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35365-1 16-M R-111

confidences, relevant to the subsequent litigation, were revealed during the course of the prior

representation." /d., 363 III. App. 3d at 380-381.

11. The scope of the prior relationship is evident, which was to represent Martin to

the fullest in the three matters alleging deficits in Martin's management style, actions against

employees, and e-mail retention, among other allegations.

12. Whether the information learned in the prior suits is relevant to the matter at

hand is evident. Martin's management is at issue in the case at bar, as is his management of

employees. This is set forth in the Plaintiffs` Complaint, in the Plaintiffs' discovery motions, in

the Plaintiffs' attorney's words, and in the words of the Plaintiffs themselves. In fact, the very

existence of the prior lawsuits and the allegations in those lawsuits is specifically referenced in

the Plaintiffs' communications.

13. According to Klehm-Marinanget, supra, the Court may assume that client

confidences were revealed during the course of the prior representation when the two factors

above are shown. Such things as attitude toward litigation, financial resources, management

approach or theory, discovery guidance, and testimony preparation are easily assumed.

Moreover, when the Plaintiffs ~ecificallX refer to the prior litigation in their criticisms of Martin,

the Plaintiffs' attorneys' firm could not be more central characters in the case.

14. Plaintiffs' counsel must be disqualified. There is no way for a firm to overcome

conflicts by separating lawyers. The allegations in the cases are similar, and the specific

references by the Plaintiffs to the very litigation where Spencer Fane represented Martin create a

conflict that cannot be overcome.

Page 6 of 8

35365-1 16-M R-111

WHEREFORE, for the foregoing reasons, Defendants EDWARD R. MARTIN, JR. prays that

this Court disqualify Spencer Fane, LLP, Attorney Erik O. Solverud, Megan D. Meadows, and

Arthur D. Gregg, and enter an Order reflecting the disqualification and providing any further

relief as may be necessary and just.

EDWARD R. MARTIN, JR., Defendant

BY:•~HEYL, ROYSTER, ELKER &ALLENBarry S. Noeltne , ARDC #6190817Richard K. Hunsaker, ARDC #6192867Alisha L. Biesinger, ARDC #6320311

HEYL, ROYSTER, VOELKER &ALLENSuite 100, Mark Twain Plaza III105 West Vandalic StreetEdwardsville, Illinois 62025Telephone: 618.656.4646Facsimile: 618.656.7940edwecf@heylroyster.com

Page 7 of 8

35365-1

PROOF OF SERVICE

16- M R-111

The undersigned certifies that a copy of the foregoing has been served upon theattorneys of record of all parties to the above cause via electronic mail and by enclosing same inan envelope addressed to such attorneys at their business address as disclosed by the pleadingsof record herein, with postage fully prepaid, by depositing said envelope in a U.S. Post OfficeBox in Edwardsville, Illinois, on this ~ day of June, 2016.

HEYL, ROYS~TER, VOELKER &ALLEN

Copies to:

Erik O. Solverud, Esq.Megan D. Meadows, Esq.Arthur D. Gregg, Esq.SPENCER FANE LLP1 North Brentwood Blvd„ Suite 1000St. Louis, MO 63105Attorneys for Plaintiffs

Stephen R. Clark, Esq.Jason S. Dunkel, Esq.Joel Rohlf, Esq.RUNNYMEDE Law Group7733 Forsyth Blvd., Suite 625St. Louis, MO 63105Attorneys for Defendant Eagle Forum

'.~- •

iN THE CIRCUIT COURTTHIRD JUDICIAL CIRCUITMADi50N COUNTY, ILLINOIS

t~NNE SCHLAFLY LORI, et al., }

Plaintiffs, )

-vs- ) No. 2016 MR 000111

EDWARD R. MARTIN, JR., et al., )

Defendants.

DECLARATION OF MARY R4BiNSON

Introduction

1. I am a lawyer, licensed to practice law in Illinois and California since 1975.

Since 1992, I have concentrated my practice in tl~e area of lawyer professional responsibility

and ethics. From 1992 to 2007, 7 sez-ved as Administrator of the Attorney Registration &

Disciplinary Commission of the Supreme Court of Illinois. Since 2Q07, I have consulted with

and represented lawyers in matters involving attorney ethics, including discipline defense,

and I have provided evert opinions on issues of attorney ethics and professional

responsibility in over 30 cases.

2. I have been retained by counsel for Edward R. Martin (Martin), to consider

certain facts and circumstances, and to offer my opinion on whether, under those facts and

circumstances, a conflict of interest arises under Rule 1.9 of the 2010 Illinois Rules of

Professional Conduct due to Spencer Fane's representation of plaintiffs in the above matter.

1

Factual' Background

3. Based upon what I understand to be the partial information available to

Martin's present counsel, prior to having the ability to review Spencer Fane files, I have

assumed tl~e following:

a) Beginning in July ZOOb, Spencer Fane represented Martin, as an individual and

in his official capacity as Chairman of the Board of Election Commissioners of the City of St.

Louis (Board), in a lawsuit brought by Jeanne Bergfeld, a former employee of the Board,

Bergfeld was one of six Board employees disciplined after then newly-elected Governor Matt

Blunt appointed Martin and the other two named defendants to the Board. Bergfeld claimed

that her termination by Martin and two other Commissioners named as defendants was

motivated by ~poiitical and gender discrimination, violated procedural due process, and

violated substantive due process in that the public manner in which. it was done and public

statements accompanying the termination shacked the conscience, offended judicial notions

of fairness, and offended human dignity. Bergfeld characterized her termination and actions

taken against other Board employees as a "political massacre." The case was settled about

16 months after it was filed, after briefing on an unsuccessful motion to dismiss.

b) Beginning in October 2010, Spencer Fane provided advice to Martin as a

defendant to a Petition brought by Bergfeid alleging that Martin had vit~lated the settlement

agreement in the above case by making public statements disparaging her. That matter was

settled.

c) Beginning in 2007, Spencer Fine represented Martin in connection with

controversies that arose from actions he took as Chief of Staff to Governor Blunt. The

representation included defending allegations by an assistant legal counsel, Scott Eckersley,

2

that he was fired by Martin for attempting to assure that the administration complied with

sunshine and record retention laws, and in addressing Attorney General inquiries in

connection with destruction of emails. Litigation with Eckersley was settled in 2009, and a

report concluding the Attorney General inquiry was published in February 2009.

d) In September 2012, Spencer Fane advised Martin in connection with his

concerns that Scott Eckersley was violating the settlement agreement by making derogatory

statements about Martin as athen-candidate far U.S. Congress.

e) The instant case involves a dispute among officers and directors of Eagle

Forum ("Eagle Forum 501(c~(4)") and Eagle Forum Education and Legal Defense Fund

("Eagle Forum 501(c)(3)") entities collectively identified as the Eagle Farutn. Martin has

served as President of both enCities since January 31, 2015. The Verified Complaint alleges,

inter afia, that during Martin's tenure, Eagle Forum (c)(4) has experienced unprecedented

chaos and division between its nafiional presence, the State Eagle Forums, and its

membership base, and that Martin has used his position to proceed with his personal

agendas, unchecked by applicable articles and bylaws ar other principles of corporate

governance.

t~ In a motion addressing the relevance of a discovery request far Martin's

employment history since 2010, Plaintiffs alleged: "Martin's employment history, his own

understanding of his job duties and his recent personnel maneuverings are all material to

the management style which drove Plaintiffs to remove Martin and file the present law suit,"

g) Emails exchanged among individual plaintiffs in this matter cite to Martin's

involvement in firing Scott Eckersley, destroying evidence, Tying about emails, and being

farced to resign from his position as Chief of Staff to the Governor because of his conduct in

that regard as evidence that he is not qualified to run any organizaCion, and that his

leadersi~ip of Eagle Forum entities is part of a worn out pattern of behavior of creating

dissension and putting blame on others in order to take the focus aff his awn incompetency.

t. ~ e

Rule 1.9 of the 2010 Illinois Roles of Professional Conduct provides:

(a) A lawyer who has formerly represented a client 'in a matter shall natthereafter represent another person in the same or a substantially relatedmatter in which that person's interests are materially adverse to the interestsof the former client unless the former client gives informed consent.

Mareauer, under Rule 1.10, where any lawyer in a firm is conflicted, e~rery lawyer in the firm

is prohibited from undertaking the representation.

There can be no doubt that Spencer Fane previously represented. Martin in several

matters or that the Plaintiffs novv represented by Spencer Fane are materially adverse to

Martin in this litigation. Thus, under Rule 1.9, Spencer Fane is prohibited from representing

Plaintiffs in this matter if any of its prior represer~tatians of Martin is deerried a matter

substantially related to the present case.

The Illinois Supreme Court has decreed the following as the test for determining

whether matters are substantially related:

1} a factual reconstruction of the scope of the former representation must be made.

2) it must be determined. ~n~hether it is reasonable tc~ infer that the confidential

information allegedly given would have been given to a lawyer representing a client

in those matters.

3) it rrtust be determined whether such information is relevant to issues raised in the

pending litigation against the former client.

4

Schwartz v. Cor-~ellonr, 277 I11.2d 1b6, 178 - 180 {1997 . The test lc~~ks ~o what information

would likely have been shared by a client, rather than r~vhat information was actually shared,

to avoid putting clients in the untenable position of having to revel c~nfi.dential information

in order to bar a subsequent con~ictin~ representation. Ire re Carey, 89 S.W.3d 477, 493.

Factual natters at issue in Spencer Fane's prier representations of Martin included:

alleged abuses of authority by Martin in tl~e management and termination of employees;

claims that he engineered a political massacre at the Board of Elections; alle~atiotis that the

manner in which he conducted the termination of B~rgfeld was unnecessarily public and

harmful to her reputation so as to shock the conscience and offend human dignity;

allegations that as Chief of Staff to the Governor, he l~nowingly flaunted Sunshine laws and

record retention policies sa as to frustrate public scrutiny of himself and the Governa~-'s staff;

allegations that he fired Eckersley in retaliation for Eckersley's efforts as legal counsel to the

Govert~rar to implement legally compliant record retention policies; derogatory statements

from Eckersley about Martin's competence and character; and allegations that in ~aursuit of

personal political. success, he made derogatory statements about Bergfeld in violafiion of a

settlement agreement.

It is reasonable fio infer that in the course of those representations, Markin would have

shared. with Spencer Fane his personal assessments of Bergfeld and Ecicersley, his version of

his conduct in the terminations of each of them (and at~rers disciplined in conjunction with

the Bergfeld te~minationj, his management practices at both the Board of Elections and the

Governor's office, his perspective on public scrutiny of public figures and how public figures

could and should be able to limit that scrutiny, and his theories and conduct of management

in general.

The allegations of the Verified Complaint in this case make it clear that Martin's

management style and practices are relevant, if not central, to this litigation. Indeed,

Plaintiffs have asserted in support of discovery demands that Martin's employment history

is "material ~o the management style fihat drove Plaintiffs to file this lawsuit." Pursuant to

the PiaitltifPs stated theory of the case, any and all information learned by Spencer Fane

about how Martin conducted himself in managing at the Board of Elections and at the

Governor's office wfluld be relevant to proving his management style and practices at Eagle

Forum.

But the circumstances here do not require reliance only on inference. Statements by

individual Plaintiffs in email correspondence about the controversy at issue make it clear

that they believe that Martin's conduct in the Ekersley matter constitutes evidence of a

pattern of abusive and dissension-producing management practices that required his

dismissal from.his position ~nrith Eagle Fr~rum. Under the view they have expressed, the very

conduct upon which Spe~icer Fane defended Martin in fihe Eckersley matter will be used as

evidence against him in this case.

As a result, it is my opinion that the prior representations of Martin by Spencer Fane

are clearly substantially related to this matter so that Spencer Fane is prohibited. under Rule

1.9 from representing the Plaintiffs herein.

su

Ma Roli~nsanRob son Law Group, LLC20 S. Clark, Suite 1060Chicago, IL 60603

0

35365-1

IN THE CIRCUIT COURTFOR THE THIRD JUDICIAL CIRCUITMADISON COUNTY, ILLINOIS

ANNE CORI, et al.,

Plaintiffs,

v.

EDWARD R. MARTIN, JR., et al.,

Defendants.

No.2016-MR-000111

No. 2016 MR 000111

AFFIDAVIT OF EDWARD R. MARTIN JR.

Edward R. Martin, Jr., duly sworn upon oath, deposes and states as follows:

1. I am over the age of eighteen and am of sound mind. I give this Affidavit

of my personal knowledge as further detailed below. I am competent to testify and

would, if called, testify as follows.

2. In 2005, I was appointed by then Missouri Governor Matt Blunt to serve as

the Chairman of the St. Louis Board of Election Commissioners. This appointment

required confirmation by the Missouri Senate. I was confirmed in the Spring of 2005

and began serving immediately.

3. As Chairman, I supervised the four person Board of Election Commission.

By law, the Board consists of two Democrat Commissioners and two Republican

Commissioners.

4. As Chairman, I presided over all Board meetings. I was the first Republican

Chairman in approximately twelve years and spent months reviewing all operations and

Page 1 of 4

35365-1 No.2016-MR-000111

reviewing staff performance. In July and August, 2015, the Board decided to take action

to terminate certain underperforming employees and did so on or about August 12,

2015. One of these employees was Jeanne Bergfeld.

5. In July, 2006, the Board of Commissioners was sued by Jeanne Bergfeld in

the United States District Court for the Eastern District of Missouri. The lawsuit was

styled Bergfeld v. Boord of Elections, United States District Court for the Eastern District of

Missouri, No. 06-CV-01025-RWS. Her suifi alleges! that her termination was improper and

she focused her concerns on my conducfi as Chairman.

6. Frank Neuner of Spencer Fane represented me in the lawsuit.

7. The lawsuit was ongoing for over a year with discovery and investigation.

Sometime after November, 2007, the lawsuit was settled.

8. On October 22, 2010, Ms. Bergfeld brought suit in the Circuit Court of the

City of St. Louis, alleging that I had breached the settlement agreement by speaking

publicly about Bergfeld. This case was styled eergfeld v. Board of Elections, Circuit Court of

the City of St. Louis, No. 1022 AC-15411. Frank Neuner advised me on the matter.

9. During this lawsuit, I gave my deposition and was prepared to do so by

Frank Neuner.

10. In September, 2006, I was named Chief of Staff to Missouri Governor Matt

Blunfi. Because of the appointment, I resigned as Chairman of the Board of Elections.

However, I continued to actively participate in the Bergfetd lawsuit until it was settled.

Page 2 of 4

35365-1 No. 2016-MR-000111

11. In 2008, I was sued in Circuit Court of Cole County, Missouri in my capacity

as Chief of Staff to fihe Governor of Missouri. Frank Neuner was my attorney in this

lawsuit. The style of the case is State of Missouri v. Blunt, Circuit Court of Cole County, Na.

O8ACC-cc00379.

12. The lawsuit was brought by Scott Eckersley, an employee of the Governor's

office. I had terminated Eckersley's employment and he alleged many counts related to

me and my management, email retention, and conduct.

13. The lawsuit settled in 2009 with a settlement agreement and a non-

disparagement agreement.

14. In 2012, Eckersley was speaking publicly about me and my qualifications as

an attorney and I sought counsel from Frank Neuner concerning these comments and

the settlement agreement.

15. Because of the very public nature of the matters for which Frank Neuner

represen#ed me, I relied on being able to confiact him at any time for ongoing

representation.

16. In the course of Frank Neuner's legal representation of me, we discussed

among other things my management, my management style, my professional work, my

contacts, my personal information, my use of social media including e-mail and

retention policies, my feelings toward litigafiion, and the approach and conducfi of

discovery including depositions.

Page 3 of 4

35365-1 No. 2016-MR-000111

17. After becoming aware, in discovery, of statements made by, transmitted

through, or approved by the Plaintiffs relating to the lawsuits in which I was represented

by Plaintiffs' counsel, it is clear that the subject matters of the cases are substantially

similar and that the Plaintiffs' attorneys possess knowledge of the allegations, have

knowledge of defenses and defense strategies in those cases, and in fact, developed

those strategies and support in the prior cases.

~`.tr -

Subscribed to and sworn before me this ~ day of ~()'~Q.. .2016.

~ ~.~lJ.~► ~ t 1 ~ ~~I.! L t!~ ~I, ,,. . /

My Commission Expires:

CHELSEA L, LA~~GENECKER7Notary Public - Natary Sga!State of P,iissoudCommissioned for S;e. 6enBv)Bve CountyMy Commission Expired pCtppet 09, 2018Commission Nu ,14630647

Page 4 of 4