Walker v. Newman University, Inc.

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion to Disqualify Lewis Brisbois Bisgaard & Smith, LLP (ECF No. 23). Plaintiff John Walker 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 in part and denied without prejudice in part.

         I. Factual Background

         As of October 2017, Plaintiff was the Counseling Program Director and Assistant Professor of Counseling at Newman University, and was also one of Newman's Title IX investigators. That month, Plaintiff was assigned to investigate a Title IX complaint for sexual harassment and gender discrimination filed by a Newman employee. Within the next two months Newman also assigned Plaintiff to investigate three additional Title IX complaints. However, on December 1, 2017, Plaintiff learned that the Newman Board of Trustees and Executive Committee had removed him as the investigator into the Title IX complaints and from the Title IX task force, and had retained the Lewis, Brisbois, Bisgaard & Smith, LLP law firm (the law firm) to conduct an independent investigation into the ongoing Title IX matters.

         On December 11, 2017, Plaintiff met with unidentified attorneys from the law firm regarding the Title IX investigations. The Court infers the attorneys who attended the meeting were Mr. Schrag and Mss. Guerin and Anson. Plaintiff also met with Mr. Schrag two additional times during December, also regarding the Title IX investigations.

         On January 4, 2018, Plaintiff received a letter from Mssrs. Rupe and Schrag notifying him he would not have any teaching duties for the spring semester and that his employment would not be renewed. Mr. Rupe later responded to a letter he received from Plaintiff's counsel seeking information and action on his client's behalf. Mr. Rupe did not participate in any of the interviews or discussions with Plaintiff, nor was he part of the law firm team that investigated the Title IX complaints. He did not make the decision not to renew Plaintiff's contract with Newman. He received the Title IX investigative reports at the same time Newman's executive committee received them.

         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 Plaintiff cannot make the showing that Mr. Rupe is a necessary or material witness in this matter and that any information he could possibly be compelled to give would be cumulative of information provided by the Title IX investigators. Newman further argues that because attorneys Schrag, Guerin, and Anson are not involved in representing a party in this lawsuit, 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.^[1] “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.”^[2]

         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.^[3] The Court has the power to disqualify counsel at its discretion based upon these professional standards of ethics.^[4] 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.^[5]

         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.^[6] 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.^[7]

         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.^[8] “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.”^[9] A motion to disqualify counsel deserves serious, conscientious, and conservative treatment.^[10]

         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.^[11]

         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.^[12] 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.^[13]

         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.^[14] 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 attorney's client.^[15] The court will not grant a motion to disqualify unless all three of the Smithson factors are met.^[16]

         IV. ...