Baker & Hostetler office sign/photo by John Disney/ALM

A federal judge overseeing the first federal trial against opioid defendants said he would reach out to the U.S. Department of Justice to determine whether to disqualify defense attorney Carole Rendon and her firm, Baker & Hostetler, from the case.

U.S. District Judge Dan Polster, who is overseeing more than 1,500 lawsuits by cities and counties across the country, heard testimony in court Wednesday from Rendon and three public officials about her former job as U.S. Attorney for the Northern District of Northern District of Ohio, during which she headed an opioid task force. Rendon, who is a partner in Cleveland, represents Endo Pharmaceuticals Inc., one of the opioid manufacturers in the case.

“These cases don’t fit well in a courtroom and, candidly, this issue doesn’t fit very well in the cases that either side cited or the model rules,” Polster said Wednesday after three hours of testimony and arguments. “The DOJ had offered sometime in 2018 to participate as a friend of the court. The court needs a friend.”

The DOJ, he said, would know whether Rendon had obtained confidential information while on the task force, and “I’ll use that as a basis to make my decision. I think that’s the best way to do it.”

He ordered that Rendon and Baker Hostetler refrain from participating in any more depositions in the case but emphasized that his ruling, whatever it turned out to be, would be limited to the bellwether case going to trial Oct. 21. The cities of Cleveland and Akron, Ohio, and two Ohio counties, are the plaintiffs in that case.

Polster also said he would not allow plaintiffs’ attorneys to depose Rendon as an alternative to disqualification.

On the stand, Rendon was emphatic she had no confidential information that would justify her disqualification.

“I have worked with and worked side by side who are rule followers, who are rule benders, people who are rule breakers, and I am to a fault a rule follower,” Rendon said.

The hearing comes in response to a motion lead plaintiffs’ attorneys filed last month seeking to disqualify Rendon and Baker Hostetler from the bellwether case. In the motion, they insisted both had violated the Ohio Rules of Professional Conduct, specifically Rule 1.11, which bars former government attorneys from representing a client “in connection with a matter” in which they participated or when possessing confidential government information.

They argued that Rendon, who also is co-liaison counsel for all the manufacturing defendants in the bellwether case, could have knowledge of law enforcement actions and resources involving the opioid crisis, some of which she could have used in depositions. Rendon was U.S. Attorney for the Northern District of Ohio in 2016 and 2017 and a federal prosecutor in that office beginning in 2009. She also spearheaded the U.S. attorney’s heroin and opioid task force, which included officials from Cleveland and Cuyahoga County.

The motion said her actions, as Endo’s counsel, “will severely undermine the public confidence in the legal system.”

In court documents opposing the motion, Parker wrote that Rendon had broken no rules and that the task force information was never confidential. Further, he added, the appearance of impropriety was not the standard under the Ohio Rules of Professional Conduct. Other defendants filed documents joining in Endo’s opposition to the disqualification motion, and 20 former U.S. attorneys, from states including Florida, Texas, New Jersey, Pennsylvania, Georgia and California, filed an amicus brief supporting Endo on Wednesday.

“There’s a bunch of hurdles the plaintiffs have to get over, none of which they have presented evidence of today,” Parker said in court Wednesday. “You heard a lot of testimony today about how public all of this was. In fact, there were members of the media attending the opioid task force.”

At Wednesday’s hearing, Rendon and three public officials took the stand, questioned by plaintiffs’ attorney Peter Weinberger, of Cleveland’s Spangenberg Shibley & Liber, and two defense lawyers: John Parker, who is another Baker Hostetler partner in Cleveland, and Jonathan Stern, a Washington, D.C., partner at Arnold & Porter Kaye Scholer, which also represents Endo. Two of the witnesses, Gary Gingell, commander of the Cleveland Division of Police, and Dr. Thomas Gilson, who is Cuyahoga County’s Medical Examiner, were on the task force with Rendon. When probed by Endo’s lawyers, they acknowledged that other individuals, such as doctors and members of the media, were on the task force.

But when asked how he felt with Rendon at his deposition, one witness, Gingell said, “Personally, I was very uncomfortable, extremely uncomfortable.”

In court, Polster asked Rendon how she felt when two task force members testified about feeling betrayed when they discovered she was representing an opioid defendant in the case.

“I don’t agree with their perceptions,” she added. “They have a job to do. I have a job to do, and I’m doing it within the best of my ability.”