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Harris v. City of Kansas City

United States District Court, D. Kansas

March 26, 2019

JYAN HARRIS, Plaintiff,
v.
CITY OF KANSAS CITY, KANSAS FIRE DEPARTMENT, et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff's Motion to Disqualify Scott Brown and his firm, Blake & Uhlig, P.A., from representing Defendant IAFF Local 64 or any other opposing party in this case. (ECF No. 17). On March 6, 2019, the Court conducted a hearing on Plaintiff's motion. Plaintiff Jyan Harris appeared in person and through counsel, Alexander Edelman. Defendants City of Kansas City, Kansas Fire Department and the Unified Government of Wyandotte County/City of Kansas City, Kansas appeared through counsel, Kelli M. Broers. Defendant IAFF Local 64 appeared through counsel, Scott L. Brown. After consideration of Plaintiff's motion and memorandum in support (ECF Nos. 17, 18), Defendants' Memorandum in Opposition (ECF No. 22), Plaintiff's Reply (ECF No. 28), and additional argument from counsel, Plaintiff's Motion to Disqualify was DENIED by oral ruling at the conclusion of the hearing. This written opinion memorializes that ruling.

         I. Background[1]

         Plaintiff, an African-American man, worked as a firefighter for the Kansas City, Kansas Fire Department (“KCKFD”) and the Unified Government (“UG”) from May 2004 until September 28, 2016, when he was suspended pending termination for alleged misconduct regarding his time worked. As part of his employment, he was a member of the IAFF Local 64 labor union (“IAFF”), which has a collective bargaining agreement (“Memorandum of Understanding” or “MOU”[2]) with the KCKFD. After his suspension, on Plaintiff's behalf, the union filed a grievance per the MOU procedure. Months later, as part of this procedure, an arbitration was held, and Plaintiff's termination was upheld by the arbitrator.

         After initiating the grievance procedure, but prior to arbitration, Plaintiff filed this federal case against his employers and the IAFF. He asserts claims of discrimination in employment and union representation, and for retaliation under the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. (“ADA”) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Plaintiff claims his actions regarding his time worked were in full compliance with the regular practices of the department and were pretexts for suspending and terminating him. He alleges he was suspended due to his race and because of his disability, or perceived disability, after being injured twice while on duty. He also contends IAFF failed to properly pursue his grievance and represent him during the grievance and arbitration proceedings.

         Currently, the litigation is progressing through discovery. Discovery is set to close on April 19, with a pretrial conference set for April 22, 2019, and a jury trial scheduled for January 2020. (ECF No. 53.)

         II. Relevant Facts[3]

         As noted above, Plaintiff was suspended by KCKFD pending termination on September 28, 2016. The next day, IAFF filed a grievance on Plaintiff's behalf to oppose the disciplinary action. At the union's direction, Plaintiff met with IAFF's counsel, Scott Brown, to discuss the grievance and the related process. During the March 6, 2019 hearing, Mr. Brown proffered, and Plaintiff did not dispute, that Mr. Brown never met with Plaintiff alone; rather, a union representative or other individual was always present.[4] Plaintiff claims both Mr. Brown and IAFF representatives told him they would be representing him, but never told him Mr. Brown solely represented IAFF. (ECF No. 18-1, Ex. A, Decl. of Jyan Harris, ¶¶ 10, 23.) But Mr. Brown claims he explained to Plaintiff he was representing IAFF in the grievance matter and, at no time, did he tell Plaintiff he represented him personally. (ECF No. 22-7, Ex. G, Decl. of Scott Brown, ¶¶ 6-7.)[5] Mr. Brown did not present an engagement letter to Plaintiff, or otherwise engage in any written correspondence with Plaintiff, and the IAFF paid Mr. Brown's fees.[6]

         As a part of the process outlined in the MOU, the grievance advanced to arbitration after several months. Plaintiff was unhappy with the lack of progress on the grievance (see ECF No. 18-1, Ex. A, at ¶¶ 13-14), [7] although IAFF claims it was actively investigating the merits of the grievance over those months (ECF No. 22, at 3). Regardless, in the months between the initial grievance and the arbitration, Plaintiff took additional action on his claims.

         On July 19, 2017, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) against all Defendants, including IAFF. (ECF No. 1, Ex. A.) Mr. Brown responded to the EEOC charge on behalf of IAFF on August 18, 2017. (ECF No. 22-2, Ex. B, Position Statement of IAFF.) At some time prior to filing his EEOC charge, Plaintiff retained his current counsel at the law firm of Edelman, Liesen & Meyers, LLP, by whom he continues to be represented. After receiving Notices of Right to Sue, Plaintiff filed this action on February 19, 2018.

         Mr. Brown met with Plaintiff prior to the arbitration proceeding, in approximately January 2018. Plaintiff contends Mr. Brown worked with him to prepare for the arbitration, he shared information and statements from other firefighters with Mr. Brown, and Mr. Brown advised him on the strength of his case. (ECF No. 18-1, Ex. A, ¶ 20.) Plaintiff states he understood Mr. Brown was his attorney. (Id.) Again, Mr. Brown claims he explained to Plaintiff that he represented IAFF in the arbitration proceedings. (ECF No. 22-7, Ex. G, ¶ 6.)

         On November 13, 2017, Mr. Brown sent a letter to the arbitrator, stating, in part, “I will be representing the Union in this grievance.” (ECF No. 22-6, Ex. F.) The arbitration documents clearly list the union, IAFF, as the party pursuing the grievance. (ECF No. 22-5, Ex. E at 1.) Prior to arbitration, Ms. Sarah Liesen, current counsel for Plaintiff, contacted Mr. Brown by email to inquire whether she could attend the arbitration hearing. (ECF No. 22-6, Ex. F, at 2-3.) After discussion with counsel for UG/KCKFD, Ms. Liesen's request was denied, citing the longstanding general practice of the employer to deny requests from grievants to “have their personal legal representatives present at various stages of the grievance procedure.” (Id. at 3.)

         Arbitration was held on March 9, 2018. Following the arbitration, Mr. Brown emailed Ms. Liesen to inquire whether it would be acceptable for IAFF to notify Plaintiff after a decision was rendered. (ECF No. 22-6, Ex. F, at 4.) Ms. Liesen responded, noting “It would be fine for the union to notify Jyan.” (Id.) The arbitrator issued his decision on May 18, 2018. (ECF No. 18-3, Ex. C.). In a single sentence of the arbitrator's decision, it states, “The Grievant was in attendance and represented by Scott L. Brown, Esq.” (ECF No. 18-3, Ex. C, at 1). In a May 18, 2018 email, Mr. Brown suggested to UG's counsel they “provide a copy of the decision to Mr. Harris and his attorney.” (ECF No. 22-6, Ex. F, at 5.)

         After Plaintiff filed his Complaint in this Court, IAFF filed an Answer and Mr. Brown entered his appearance (ECF No. 12), prompting Plaintiff to seek Mr. Brown's disqualification.

         III. Summary of the Parties' Legal Arguments

         Plaintiff asks the Court to disqualify Scott Brown and his firm, Blake & Uhlig, P.A., from representing Defendant IAFF Local 64 pursuant to Kansas Rule of Professional Conduct (“KRPC”) 1.9. Plaintiff claims Mr. Brown previously represented him, and his representation of IAFF in this matter creates a conflict of interest which he did not waive. Plaintiff further argues because Mr. Brown must be disqualified, his conflict is imputed to all members of the Blake & Uhlig law firm and, therefore, the entire firm is barred from representing the Defendants pursuant to KRPC 1.10(a). Plaintiff also argues if Mr. Brown was not Plaintiff's attorney during the arbitration, Plaintiff's due process rights were violated because he was not permitted to bring Ms. Liesen to the arbitration hearing.

         Defendant IAFF Local 64 contends Mr. Brown never told Plaintiff he was representing him; rather, Mr. Brown was representing Plaintiff only as a union member through Mr. Brown's representation of IAFF. IAFF presents four primary arguments: 1) federal courts have found no attorney-client relationship between union counsel and the union member; 2) under KRPC 1.9(a), plaintiff cannot show an attorney-client relationship existed; 3) the Kansas Public Employer-Employee Act (“PEERA”) contradicts Plaintiff's argument an attorney-client relationship exists between union counsel and Plaintiff; and 4) Plaintiff was not deprived of procedural Due Process rights under PEERA.

         Defendants KCKFD and UG did not file a written response to the motion, and although their counsel was present during the hearing, they did not take a position on the issue.

         IV. Legal Standards

         The Court has inherent supervisory powers to control the appearance of attorneys before the Court, and motions to disqualify counsel are committed to the Court's sound discretion.[8] The Kansas Rules of Professional Conduct have been adopted by the District of Kansas as the “applicable standards of professional conduct, ”[9] and the Court must also look to Kansas case law for guidance in interpreting those rules.[10]

         A motion to disqualify must be decided on the unique facts of the case, and the Court is forced to balance competing considerations. These include the privacy of the attorney-client relationship, the prerogative of each party to choose its own counsel, and the hardships that disqualification would impose upon the parties and the entire judicial process.[11] As required by law, the Court approaches the motion and the opposing parties' response with caution, mindful that they can be misused as a litigation tactic or technique of harassment.[12] “A motion to disqualify counsel deserves serious, conscientious, and conservative treatment.”[13]

         A. KRPC 1.9

         The first rule implicated by the current motion is KRPC 1.9, which addresses a lawyer's duty to a former client. The purpose of this rule is to protect former clients.[14] Specifically, KRPC 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, confirmed in writing.

         The party seeking disqualification under KRPC 1.9 bears the burden[15] to demonstrate the existence of three elements: “(1) an actual attorney-client relationship existed between the moving party and the opposing counsel; (2) the present litigation involves a matter that is ‘substantially related' to the subject of the movant's prior representation; and (3) the interests of the opposing counsel's present client are materially adverse to the movant.”[16] If all three factors are present, the attorney must be disqualified.

         B. KRPC 1.10

         KRPC 1.10 deals with the imputation of an attorney's conflict to his or her current law firm. This rule requires,

(a) while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

         “When a motion to disqualify is brought under Rule 1.9(a) and 1.10(a), disqualification is imputed to lawyers practicing together without regard to whether client confidences actually have been shared.”[17]

         An evidentiary hearing is not required when dealing with a motion under KRPC 1.9(a) and 1.10(a).[18] However, in this instance, the Court felt additional argument may be helpful to further illuminate the details of Plaintiff and Mr. Brown's prior affiliation. Therefore, using its discretion, the Court convened a hearing.

         V. Discussion

         A. ...


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