United States District Court, D. Kansas
LEORA RILEY, et al., Individually and on behalf of all others similarly situated, Plaintiffs,
PK MANAGEMENT, LLC, et al., Defendants.
MEMORANDUM AND ORDER
J. James, U.S. Magistrate Judge
matter is before the Court on the Motion for Sanctions filed
by Defendant Aspen Companies Management, LLC (ECF No. 212).
Aspen seeks an order disqualifying Plaintiffs' counsel
because of an alleged violation of Kansas Rule of
Professional Conduct 4.2. Plaintiffs oppose the
motion. Upon consideration of the matter, the
Court finds the motion should be denied.
case began in January 2018 when Central Park Towers filed
three limited action unlawful detainer lawsuits in the
District Court of Wyandotte County, Kansas against Leora
Riley, Terri Ozburn, and Carolyn Bell, respectively. In each
of the landlord-tenant actions, Central Park Towers sought
possession of the premises and past-due rent. On April 3,
2018, Leora Riley, Terri Ozburn, and Carolyn Bell filed (1)
their answers to Central Park Towers' petitions, (2)
counterclaims against Central Park Towers, and (3)
third-party claims against PK Management, LLC. On April 13,
2018, Plaintiff Central Park Towers dismissed these three
Wyandotte County lawsuits without prejudice. On May 3, 2018,
counterclaim plaintiffs/third-party plaintiffs Leora Riley,
Terri Ozburn, and Carolyn Bell dismissed their counterclaims
against Central Park Towers without prejudice.
dismissal of the actions for possession and past-due rent,
Plaintiffs sought and obtained permission to realign the
parties to their current configuration. On June 6, 2018,
Plaintiffs filed their First Amended Class Action Petition in
the District Court of Wyandotte County, Kansas. Defendant PK
Management, LLC timely filed a notice of
First Amended Class Action Petition includes seven counts.
And because Plaintiffs filed this case in state court, the
original pleading does not use the language of Federal Rule
of Civil Procedure 23(b) to describe the types of class
actions it asserts. In their Second Amended Class Action
Complaint, filed July 15, 2019, Plaintiffs (1) conform their
pleading to reflect the language of Rule 23(b) regarding the
types of class actions they assert, and add a “limited
fund class” under Rule 23(b)(1)(B); (2) add factual
allegations learned in discovery; (3) add a count alleging
negligence against all Defendants; and (4) seek punitive
damages in the counts alleging violations of an implied
warranty of habitability (Count Two), breach of statutory
duty to materially comply with lease and to provide habitable
housing (Count Three), nuisance (Count Seven), and negligence
parties have been actively conducting discovery and the Court
has ruled on several discovery and other pretrial motions.
However, this is the first mention of the issue raised in the
instant motion. On September 19, 2018,
Aspen's Social Services Coordinator Keirei Broadus
telephoned Bell Law, LLC. Ms. Broadus indicated she was seeking
representation and specifically asked to join this lawsuit.
Janis Bell, the law firm employee who answered the call,
recognized Ms. Broadus's name. After the conversation
ended, Ms. Bell told Brandon Bell of the call. He determined he
could not represent Ms. Broadus and based on the information
she had provided, he thought it likely that Ms. Broadus's
interests were likely adverse to Aspen's.Mr. Bell
directed Ms. Bell to call Ms. Broadus and ask if she was
represented by counsel. If not, Ms. Bell was to refer Ms.
Broadus to Christopher Dandurand of the Gorny Law
Firm. Ms. Bell telephoned Ms. Broadus on
September 20, 2018, learned she was not represented, and
provided her with contact information for Mr. Dandurand. Ms.
Bell has not communicated with Ms. Broadus since
Broadus did contact Mr. Dandurand, asking him to represent
her with respect to potential claims against Aspen, including
claims arising from mold and work environment issues at
Central Park Towers. Mr. Dandurand agreed to represent her,
with the scope of his representation to include both the
potential claims just described and in this case if she is
asked to sit for deposition. Sometime later in September or
in October, 2018, Mr. Dandurand contacted Mr. Bell as a
standard referral follow-up to advise Mr. Bell of his
representation of Ms. Broadus.
or nine months later, Mr. Bell asked Mr. Dandurand if he
could meet with Ms. Broadus and Mr. Dandurand. Mr. Dandurand
obtained Ms. Broadus's consent and arranged a meeting for
the three of them in his office on July 10, 2019. Mr.
Dandurand was present the entire time. Ms. Broadus confirmed
that Mr. Dandurand is her attorney, and she gave no
indication that any other attorney (including counsel for
Aspen) is representing or has represented her. Mr. Bell
identified himself as counsel for Plaintiffs Leora Riley and
Terri Ozburn. Mr. Bell did not ask for nor has Ms.
Broadus provided any documents, including an
counsel learned of the meeting, and on July 15, 2019, Aspen
attorney Jeffrey Bullins contacted Mr. Dandurand. Mr. Bullins
stated that he represents Ms. Broadus, which surprised Mr.
Dandurand, who in turn stated that he represents
her. Although Mr. Bullins conceded he had no
written agreement with Ms. Broadus, he was referring to a
meeting his associate Phil Raine had with Ms. Broadus in
which he informed her that he and Mr. Bullins represent Aspen
and all of its employees, including Ms. Broadus, in this
lawsuit. During that meeting, Ms. Broadus did not
tell Mr. Raine that Mr. Dandurand represents her, which may
be because the meeting occurred before she engaged Mr.
Dandurand. Nor did Ms. Broadus tell Messrs. Bullins or Raine
that she had counsel at any time after the meeting. After
speaking with Mr. Dandurand, Mr. Bullins accepted Mr.
Dandurand's confirmation that “Ms. Broadus has
chosen to terminate my firm's representation of her in
this matter.” Mr. Dandurand offered to make Ms.
Broadus available for deposition, but to date no party has
sought to depose her.
Aspen styles its motion as one for sanctions, its sole focus
is to seek disqualification of counsel. The Court has
the power to disqualify counsel at its discretion for ethical
violations, using the following standard:
The Court must determine a motion to disqualify counsel by
measuring the facts of the particular case. Beck v. Board
of Regents of State of Kan., 568 F.Supp. 1107, 1110 (D.
Kan. 1983). The moving party must show proof that is more
than mere speculation and sustains a reasonable inference of
a violation. Koch, 798 F.Supp. at 1530-31. The
essential issue is whether the alleged misconduct taints the
lawsuit. Id. The Court should not disqualify unless
“the offending attorney's conduct threatens to
‘taint the underlying trial' with a serious ethical
violation.” Field v. Freedman, 527 F.Supp.
935, 940 (D. Kan. 1981). Because the interests to be
protected are critical to the judicial system, the Court
should resolve doubts in favor of disqualification.
Id. The Court must balance several factors, however,
including society's interest in ethical conduct,
defendants' right to choose their counsel, and the
hardship which disqualification would impose on the parties
and the entire judicial process. Lansing-Delaware Water
Dist. v. Oak Lane Park, Inc., 248 Kan. 563, 571, 808
P.2d 1369, 1375 (1991).
Judge Vratil noted, because disqualification affects more
than the attorney in question, “the Court must satisfy
itself that this blunt remedy serves the purposes behind the
ethical rule in question.”
contends that Mr. Bell violated Rule 4.2 of the Kansas Rules
of Professional Conduct by engaging in ex parte
communications with Mr. Broadus. Rule 4.2 states as follows:
In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer
or is authorized to do so by law or a court
asserts that Mr. Bell communicated with Ms. Broadus about the
subject of the representation, and Plaintiffs do not argue
otherwise. With respect to whether Mr. Bell knew Ms. Broadus
was represented by another lawyer in the matter, Aspen
contends the issue is irrelevant because Ms. Broadus is a
constituent of Aspen as described in Comment 7 to the rule.
Comment 7 addresses communications with an organization, and
it states as follows:
In the case of a represented organization, this Rule
prohibits communications with a constituent of the
organization who supervises, directs or regularly consults
with the organization's lawyer concerning the matter or
has authority to obligate the organization with respect to
the matter or whose act or omission in connection with the
matter may be imputed to the organization for purposes of
civil or criminal liability. Consent of the
organization's lawyer is not required for communication
with a former constituent. If a constituent of the
organization is represented in the matter by his or her own
counsel, the consent by that counsel to a communication will
be sufficient for purposes of this Rule. Compare Rule 3.4(f).
In communicating with a current or former constituent of an
organization, a lawyer must not use methods of obtaining
evidence that violate the legal rights of the organization.
See Rule 4.4.
2018 Telephone Calls
asserts that Ms. Broadus is a constituent of Aspen who
“has authority to obligate the organization with
respect to the matter” and “whose act or omission
in connection with the matter may be imputed to the
organization for purposes of civil or criminal
liability.” Aspen frames the issue as whether
Plaintiffs' counsel knew on September 19 and 20, 2018
that Ms. Broadus was a constituent of Aspen with whom
communications were prohibited, not whether Plaintiffs'
counsel knew whether Ms. Broadus was represented by her own
counsel. Plaintiffs addressed this issue at the hearing,
noting that the Scheduling Conference was held on September
7, 2018. Aspen's Rule 26(a)(1)(A) disclosures
listed Margaret Mejia and Naftali Levenbrown as individuals
likely to have discoverable information, along with unnamed
representatives of three pest control and exterminating
businesses. The case record indicates the first
discovery requests to a party were served on September 21,
2018, so no discovery responses had been produced as of
September 19. Plaintiffs submitted a copy of
Aspen's answers to Plaintiffs' First Interrogatories
served in October 2018, but neither do those answers mention
points to certain allegations in Plaintiffs' First
Amended Complaint, statements by Plaintiff Riley in her
deposition, and excerpts from Plaintiffs' expert report
as evidence that Ms. Broadus's acts or omissions can be
imputed to Aspen. Of those items, only one-Plaintiffs'
First Amended Complaint-is dated earlier than September 2018.
that this case began when Central Park filed eviction actions
against the original named Plaintiffs provides the context
for allegations in the First Amended Complaint that the
evictions were in retaliation for Plaintiff Ozburn's
complaints about habitability and safety issues at the
Complex, including bedbugs, cockroaches, mice, mold, and
defective elevators. The First Amended Petition does not
include a claim for retaliatory eviction. Instead, in the
factual allegations, Plaintiffs describe a tenant meeting Ms.
Ozburn was conducting on November 30, 2017, during which Ms.
Broadus allegedly interrupted, called her a derogatory name,
and said she could and would have her evicted. The First
Amended Complaint contends Ms. Ozburn received an eviction
notice within an hour of Ms. Broadus's comments. But the
First Amended Complaint contains no count for retaliatory
eviction of Ms. Ozburn or any other Plaintiff.
addition, the First Amended Complaint says nothing about Ms.
Broadus's authority or responsibility to correct any of
the habitability issues about which Plaintiffs complain. To
the contrary, in a December 1, 2017 letter from Ms. Broadus
to Ms. Ozburn that Aspen appends to its motion, Ms. Broadus
offered housing resources because “[a]s the Social
Service Coordinator for Central Park Towers, it has been
brought to my attention that you may be in need of
services.” The Court therefore finds that the ...