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Greenfield v. Newman University, Inc.

United States District Court, D. Kansas

May 24, 2019

NEWMAN UNIVERSITY, INC., et al., Defendants.



         This matter is before the Court on Plaintiff's Motion to Disqualify Lewis Brisbois Bisgaard & Smith, LLP (ECF No. 22). Plaintiff Mandy Greenfield requests that the law firm of Lewis Brisbois Bisgaard & Smith, LLP (“the law firm”) be disqualified from representing Defendants in this case because of its representation of Defendant Newman University, Inc. during the investigation of the Title IX complaints at issue. In the alternative, Plaintiff requests that Alan R. Rupe, Jeremy K. Schrag, Christina M. Guerin, and Laura J. Anson, attorneys in the law firm, be disqualified from representing Defendants for the same reason. Defendant Newman University, Inc. (“Newman”) opposes the motion. For the reasons set out below, the Court finds the motion should be granted and Plaintiff afforded the alternative relief she seeks.

         I. Factual Background

         The parties' factual statements are not in complete agreement. Where one party supplies a declaration in support of that party's factual recitation and the opposing party offers no opposing affidavit, the Court will accept such facts as true for purposes of this motion. In addition, because Newman has not filed an answer, the Court accepts as true the factual allegations of the First Amended Complaint[1] for purposes of this motion.

         Newman hired Plaintiff as its Human Resources Director in 2014. On October 9, 2017, Newman's Title IX executive committee directed Plaintiff to coordinate the investigation of a Title IX complaint filed by Newman's head volleyball coach asserting sexual harassment and gender discrimination against Newman's athletic director who also served as director of student affairs. An investigation ensued. On December 1, 2017, as the investigation was nearing its conclusion, Jeremy Schrag (at attorney at the law firm) and another individual told Plaintiff that the law firm would be taking over this investigation and those in three other Title IX complaints that had been filed since October 9, 2017. Mr. Schrag also gave Plaintiff a letter from Newman's board chair. The letter informed Plaintiff the board of trustees had decided to place her on administrative leave effective immediately, but the leave was “not a disciplinary action.”[2]The letter also advised that Newman expected Plaintiff to cooperate in the law firm's continuation of the investigation. That same day, a member of the board also asked Plaintiff to submit a “whistleblower complaint” as soon as possible.

         One week later, Plaintiff sent her “whistleblower complaint” to the board chair, who then asked for additional specific allegations. On December 19, Plaintiff provided the additional information.

         On December 28, 2017, Mr. Schrag sent Plaintiff an email, with a copy to Alan Rupe, asking her to meet with them as part of their Title IX investigation. Plaintiff responded the next day and agreed to a meeting on January 4, 2018, at the law firm's Wichita office. By this point, Plaintiff had retained counsel who had sent a letter to the law firm asking questions on Plaintiff's behalf.

         Plaintiff attended the January 4, 2018 interview as scheduled, which apparently began with Mr. Schrag.[3] “Mr. Rupe arrived after the interview started and stayed until the end. He took notes, whispered questions to Mr. Schrag, clarified questions with me and was the one coordinating when my next interview would take place to get the date and time set with his schedule.”[4] Mr. Rupe also said he would be responding to the letter counsel had sent on Plaintiff's behalf.

         The following day, Mr. Rupe called Plaintiff's former Human Resources assistant and left a voice mail message identifying himself as an attorney asked by Newman to do an investigation into some of the work environment issues within Newman. Newman's president also left two voice mail messages asking the former assistant to call Mr. Rupe.

         Although Mr. Rupe denies attending any other interviews performed by Mr. Schrag, former Newman IT employee Kelly McCarthy states in a declaration that on January 3, 2018, she was interviewed by Messrs. Schrag and Rupe in their office. Mr. Rupe told her that he was handling the HR part of the investigation while Mr. Schrag was handling the Title IX part.

         However, based on the questions they posed to her, “it seemed to [her] that they were investigating Mandy Greenfield . . ., not Title IX issues.”[5]

         On January 31, 2018, Newman's Vice President for Finance and Administration sent Plaintiff a letter terminating her employment. The letter stated that on January 28, 2018, the executive committee of the board of trustees had received a report “summarizing the results of an independent investigation into [Plaintiff's] management and oversight of Newman's internal investigation into the Title IX complaints submitted by several University employees. . . . The letter . . . directed me to contact Alan Rupe if I had any questions.”[6]

         Mr. Rupe did not make the decision to terminate Plaintiff's employment with Newman. He received the final report to the executive committee from Mr. Schrag on January 28, 2018, and the following day he and Mr. Schrag attended the executive committee meeting during which Newman decided to terminate Plaintiff's employment.

         II. Summary of the Parties' Arguments

         Plaintiff contends that the law firm, and more specifically attorneys Rupe, Schrag, Guerin, Anson, and any others actively engaged in the investigation described above, are precluded by Rule 3.7 of the Kansas Rules of Professional Responsibility from acting as advocates at trial and from engaging in pretrial activity that may cause confusion to the jury at trial.

         Newman argues that Mr. Rupe should not be disqualified from representing it because any information he could possibly be compelled to give would be cumulative of information provided by the Title IX investigators. Newman further argues that the law firm need not be disqualified because Rule 3.7(b) permits a lawyer to be an advocate at a trial in which another lawyer in the firm is likely to be called as a witness. And because attorneys Schrag, Guerin, and Anson are not involved in representing a party in this lawsuit, Newman argues it is unnecessary to disqualify them.

         III. Legal Standard for Disqualification of an Attorney Based upon KRPC 3.7(a) (The Advocate-Witness Rule)

         Two sources inform whether a district court should disqualify an attorney.[7] “First, attorneys are bound by the local rules of the court in which they appear. . . . Second, because motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of the parties, they are decided by applying standards developed under federal law.”[8]

         The District of Kansas has adopted the Kansas Rules of Professional Conduct (“KRPC”) as the “applicable standards of professional conduct” for lawyers appearing in this Court.[9] The Court has the power to disqualify counsel at its discretion based upon these professional standards of ethics.[10] Because disqualification affects more than merely the attorney in question, the court must satisfy itself that this blunt remedy serves the purposes behind the ethical rule in question and that the motion is not being used as directed litigation strategy.[11]

         A motion to disqualify must be decided on its own facts, and the court must carefully balance the interest in protecting the integrity of the judicial process against the right of a party to have the counsel of its choice.[12] The moving party bears the initial burden of going forward with evidence sufficient to establish a prima facie case that a disqualifying conflict exists. The ultimate burden of proof lies with the attorney or firm whose disqualification is sought.[13]

         In deciding a motion to disqualify counsel, the trial court balances several competing considerations, including the privacy of the attorney-client relationship, the prerogative of a party to choose counsel, and the hardships that disqualification imposes on the parties and the entire judicial process.[14] “The right to counsel of choice is an important one subject to override for compelling reasons. Even so, this right is secondary in importance to preserving the integrity of the judicial process, maintaining the public confidence in the legal system and enforcing the ethical standards of professional conduct.”[15] A motion to disqualify counsel deserves serious, conscientious, and conservative treatment.[16]

         Kansas Rule of Professional Conduct (“KRPC”) 3.7, upon which Plaintiff relies as the basis for her request to disqualify the law firm, provides:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.[17]

         One of the strongest rationales for this lawyer-witness rule is to prevent jury confusion over the separate roles of an advocate and a witness.[18] This rationale is that combining the roles of advocate and witness has the potential to prejudice the opposing party because a jury may be unclear whether an attorney asked to testify is making a statement that should be taken as proof or as an analysis of the proof.[19]

         The District of Kansas uses the so-called Smithson test in determining whether potential testimony is necessary and whether counsel should be disqualified based on KRPC 3.7.[20] Under the Smithson test, a motion for disqualification should not be granted unless: (a) the attorney would give evidence that is material to the issue being litigated, (b) such evidence is unobtainable from other sources, and (c) the testimony is prejudicial or potentially prejudicial to the testifying ...

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