GOP Convention Arena Operator Seeks to Disqualify Husch Blackwell as Verizon’s Counsel

Milwaukee’s Deer District, which seeks to intervene to prevent Verizon's installation of small cells and mounting poles for July’s Republican National Convention in the public pedestrian plaza it controls outside the Fiserv Forum (see 2401230017), seeks Husch Blackwell's disqualification as Verizon’s counsel in the case, said its motion Tuesday (docket 2:23-cv-01581) in U.S. District Court for Eastern Wisconsin in Milwaukee. Verizon's opposition, also filed Tuesday, contends the district has waived its disqualification argument.

Husch currently represents the district in labor matters, said the district’s motion. Reinhart Boerner, not Husch, is counsel for the district as the proposed intervenor against Verizon. Rule 1.7 “prohibits a lawyer from representing a client when the representation of that client is directly adverse to another client without informed consent from both clients,” it said. Yet “this is precisely what Husch is doing by continuing to represent Verizon,” it said. It shouldn’t be permitted to do so, it said.

The NBA’s Milwaukee Bucks hired Husch in January 2020 to represent the team in union and labor negotiations, said the motion. The district is an affiliate of the Bucks, it said. The two entities share employees, and the Bucks have “marketing and servicing rights” for the district, it said. The district also manages and operates the Fiserv Forum, where the Bucks play their home games and where the GOP convention will be held, it said.

Throughout 2023, the district paid Husch for its legal services, including as recently as December, said the motion. In preparing to intervene in Verizon’s lawsuit, the district realized that its counsel, Husch, also represented Verizon in the case, it said. The district has said it seeks to intervene “to preserve its private property right and leasehold interest” in the public plaza outside the arena where Verizon wants to install the small cells and mount them on specially designed poles. Verizon has said it needs approval of the small cell and poles by Monday to be sure they'll be ready in time for the GOP convention, which opens July 15 for a four-day run.

The district promptly raised the conflict with Husch, said the motion. During those exchanges, Husch “conceded multiple times” that it represents the district, it said. But Husch indicated that it didn’t intend to withdraw as Verizon’s counsel “without explaining how it could possibly proceed to represent two adverse parties,” it said.

Husch can’t represent “two adverse parties concurrently,” said the district’s motion. Yet that’s what Husch has done in this case, it said. It filed suit on behalf of one client, Verizon, seeking to overturn permit denials, it said.

If the denials are overturned, Verizon’s permits “would effectively eliminate rights belonging to another current Husch client, the Deer District, which has now sought to intervene in this case,” said the motion. The ethics rules “prohibit Husch from proceeding in this action as counsel to Verizon,” it said. Because Husch, without any justification, has refused to withdraw as Verizon’s counsel, the court “must take the extraordinary step of disqualifying Husch,” it said.

Verizon and the district “are directly adverse,” said the motion. The district holds private property rights and leasehold interests in the pedestrian plaza where Verizon seeks to install utility poles and small cells that are the subject of the permits at issue in this case, it said. If Verizon is allowed to proceed with its planned installation, the district’s interests in the plaza will be “impaired,” it said.

Regardless of whether the district is allowed to intervene in Verizon’s lawsuit, Verizon’s claims “are directly adverse to the Deer District’s interests,” said the motion. The district hasn’t and won’t consent to Husch’s representation of Verizon in this litigation, it said.

The “differing nature” of Husch’s representation of Verizon and the district is “irrelevant,” said the motion. The prohibition under Wisconsin Supreme Court rules against representing adverse clients applies even when the matters are wholly unrelated, it said. Because Husch “refuses to abide its ethical duties,” the court should disqualify it as counsel for Verizon in this matter, it said.

But Verizon contends the district has waived its disqualification argument, said its opposition. Grounded in the “related doctrines of waiver and laches,” courts won’t allow a litigant to delay filing a motion to disqualify in order to use the motion as a later "tool" to deprive its opponent of counsel of choice after substantial preparation of a case has been completed, its opposition said, citing the 1997 Wisconsin Court of Appeals decision in Batchelor v. Batchelor. That tool “is precisely Deer District’s gambit here,” it said.

A party waives an attorney disqualification objection when it unreasonably delayed raising the argument, it had knowledge of the course of events and acquiesced to them and when disqualification “would prejudice the other party,” said Verizon’s opposition. All three “prongs” of the Batchelor test are met, it said.

The district was “continuously aware” that Husch was representing Verizon since at least Dec. 7 when it learned that Verizon had filed suit against Milwaukee and began to monitor that suit, said Verizon’s opposition. Husch “appeared as counsel of record in the suit from the beginning, with its name on the docket and on all papers Verizon filed in court,” it said. The district, “represented by sophisticated inside and outside counsel,” had every opportunity to raise a disqualification objection, yet it chose not to, it said: “That delay was unreasonable.”

The district concedes it knew of this lawsuit, and of Husch’s involvement, “since the outset of the proceedings,” said Verizon’s opposition. Particularly under the circumstances of the Telecommunications Act’s expedited review, relief requested by Jan. 29 and a preliminary-injunction motion, the “only reasonable inference” is that the district acquiesced in Husch’s representation of Verizon, it said.

Verizon would be prejudiced by Husch’s disqualification, said the opposition. Husch did “substantial preparation” on Verizon’s behalf well before the district’s “belated disqualification motion,” it said. Several pleadings, motions, briefs and declarations were prepared and filed, plus a two-hour-long oral argument was held on Verizon’s Dec. 4 motion for preliminary injunction (see 2312050022). By contrast, there’s “no prejudice” to the district, which “has engaged sophisticated outside counsel to advise it in this matter,” it said.