United States District Court, D. Kansas
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.
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