Shapiro v. Falk et al

Filing 147

ORDER denying 138 Motion to Disqualify Counsel by Judge William J. Martinez on 1/11/2017. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-3086-WJM-KMT
ANTHONY D. SHAPIRO,
Plaintiff,
v.
MARCUS RYNEK, in his individual capacity, and
STEVEN DOANE, in his individual capacity,
Defendants.

ORDER DENYING MOTION TO DISQUALIFY

Before the Court is Plaintiff’s Motion to Disqualify Defendants’ Counsel Pursuant
to Colorado Rules of Professional Conduct Rule 1.7 (“Motion to Disqualify”). (ECF No.
138.) For the reasons explained below, this Motion is denied.
I. BACKGROUND
As summarized in this Court’s Order Denying Defendants’ Motion for Summary
Judgment (“Summary Judgment Order”), this case involves an accusation that Plaintiff
Anthony Shapiro (“Shapiro”), a Colorado Department of Corrections (“CDOC”) inmate
housed at the Sterling Correctional Facility (“Sterling”), was unconstitutionally strip
searched before being placed on a transport bus on December 6, 2012. (ECF No. 131
at 3–4.) Specifically, Shapiro claims that he was strip searched in front of other
inmates, rather than privately. (See id.)
As the Court stated in the Summary Judgment Order, “The parties agree that the
strip search was ordered and performed by one male prison guard acting alone.

Whether that guard was [Defendant] Rynek or [Defendant] Doane (or someone else) is
somewhat uncertain . . . .” (Id. at 4.) Rynek was a CDOC officer assigned to Sterling,
while Doane was a CDOC officer assigned to the Northern Transport Unit (“NTU”), a
special CDOC division charged with transporting prisoners in a certain geographic
region. (Id. at 11–12.)
At one point in this litigation, Shapiro positively identified Rynek as the guard
who performed the strip search. (Id. at 10.) Apparently Shapiro has since backpedaled
from his previous certainty (see ECF No. 144 at 3), and his counsel is prepared to
pursue an argument that the strip search may have been performed by Doane (ECF
No. 131 at 11).
This argument runs as follows:
1.

Rynek denies conducting the strip search and asserts
that any strip search performed would have been
done by the NTU officers in charge of driving the
offenders to Denver. The three NTU officers present
that day, including Doane, also testified that NTU
officers are responsible for strip searching inmates
prior to transport. And Sterling’s warden similarly
testified that NTU conducts the pre-transport strip
searches.

2.

The officer in question “was white” and had “a
medium to muscular build.” Allegedly, Doane was the
only white NTU officer present on the morning in
question, and has “a medium to muscular physique.”

3.

Therefore, Doane might be the officer responsible.

(Id. (citations omitted).)
This state of affairs led the Court to express some concern regarding Rynek’s
and Doane’s joint representation by the Colorado Attorney General’s Office, given
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Rynek’s and Doane’s apparent motive to point fingers at each other. (Id. at 13–14.)
Specifically, Rynek had a motive to accuse the NTU, and the only NTU officer still a
defendant in this case is Doane; while Doane had a motive to highlight Shapiro’s
positive identification of Rynek. (Id.) Representation by the same attorneys would
make such arguments difficult.
Despite this, the Court acknowledged that it “does not have a comprehensive
view of the evidence and arguments to be presented at trial. Therefore the Court
cannot say with certainty that a non-waivable conflict of interest exists here.” (Id. at 14.)
The Court nonetheless “strongly encourage[d] Defendants’ counsel to seek an outside
opinion on this matter at their earliest possible opportunity.” (Id.)
The Court issued its Summary Judgment Order on September 16, 2016. On
December 9, 2016, Defendants’ counsel filed a “notice” informing the Court that they
had obtained an opinion from the attorneys in the Attorney General’s Office that
regularly review cases for conflicts of interest, and those attorneys saw no conflict in
continuing joint representation of Defendants. (See generally ECF No. 135.) This is so
primarily because Doane, although he has no specific memory of searching Shapiro,
nonetheless agrees with Rynek that any strip search which occurred was performed by
NTU officers such as himself, albeit in private. (Id. at 4–5.) In other words, Rynek’s
position is that he was not involved at all, whereas Doane’s position is that he may have
been involved but no public strip search occurred.
Not satisfied with this explanation, Shapiro filed the Motion to Disqualify at issue
here on December 26, 2016. (ECF No. 138.) This matter is set for a Final Trial

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Preparation Conference on February 3, 2017, and a jury trial scheduled to begin on
February 21, 2017. (ECF No. 126.)
II. LEGAL STANDARD
“A motion to disqualify counsel is addressed to the sound discretion of the district
court.” World Youth Day, Inc. v. Famous Artists Merch. Exch., Inc., 866 F. Supp. 1297,
1301 (D. Colo. 1994). The moving party bears “the burden to establish the grounds for
disqualification.” Id. at 1299. With exceptions not relevant here, the District of
Colorado has adopted the Colorado Rules of Professional Conduct (“Colo. RPC”) to
govern attorney conduct in this District. See D.C.COLO.LAttyR 2(a).
III. ANALYSIS
A.

Summary of Shapiro’s Argument
Shapiro’s Motion to Disqualify is largely based on the rule that a lawyer shall not

represent a client if “there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to another client.” Colo.
RPC 1.7(a)(2). Shapiro argues that, “in light of the evidence that a group strip search
did happen, there is a significant risk that the Defendants’ interests will diverge—that is,
that they will feel the need to litigate the identity of the officer responsible for the
search,” and thereby point fingers at each other. (ECF No. 138 at 10–11.)
If, for example, Defendants’ counsel puts Mr. Rynek on the
stand knowing that he will testify that NTU categorically
conducts the strip searches for outgoing prisoners, they also
know that they are introducing evidence that benefits Mr.
Rynek at Mr. Doane’s expense, violating counsel’s
obligations under Rule 1.7(a)(2). But if Defendants’ counsel
fails to introduce such evidence, that failure limits the
strength of Defendant Rynek’s defense, also violating
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counsel’s obligations under Rule 1.7(a)(2). If Defendants’
counsel argue that Mr. Shapiro’s identification of Mr. Rynek
as the person who ordered the strip search weakens the
case against Mr. Doane, such a position would benefit
Defendant Doane at Defendant Rynek’s expense, yet again
violating Rule 1.7(a)(2). Whichever tactic Defendants’
counsel adopt, they are highly likely to be harming one client
for the benefit of another, or denying both clients the benefit
of a robust defense.
(Id. at 11–12.)
B.

Standing
Defendants argue that Shapiro lacks standing to seek disqualification based on

this alleged conflict. (ECF No. 144 at 6–7.) The issue of standing in these
circumstances is somewhat hazy given a particular amendment to the Colorado Rules
of Professional Conduct.
The Colorado Supreme Court adopted most of the ABA Model Rules of
Professional Conduct in 1992 (effective January 1, 1993), thus creating the Colorado
Rules of Professional Conduct. At that time, Rule 1.7 contained comment [15], which
counseled that “opposing counsel may properly raise the question” of his or her
opponent’s conflict of interest only “[w]here the conflict is such as clearly to call in
question the fair or efficient administration of justice.” See http://www.americanbar.org/
groups/professional_responsibility/policy/ethics_2000_commission/e2k_redline.html
(last accessed Jan. 10, 2017); see also Abbott v. Kidder Peabody & Co., 42 F. Supp.
2d 1046, 1050 (D. Colo. 1999) (quoting this portion of the former rule). In other words,
the conflict of interest needed to be particularly egregious before an opposing party had
standing to move to disqualify.

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However, in 2001 and 2002, the ABA’s “Ethics 2000” com mission proposed
revisions to the Model Rules, and specifically proposed “delet[ing] [Rule 1.7’s]
Comment [15] . . . because it addresses questions outside the disciplinary context.”
American Bar Association, Model Rule 1.7: Reporter’s Explanation of Changes,
available at http://www.americanbar.org/groups/professional_responsibility/policy/
ethics_2000_commission/e2k_rule17rem.html (last accessed Jan. 10, 2017). The
Colorado Supreme Court adopted this change wholesale in 2007, effective January 1,
2008. See Rule Change 2007(7) at 34–45, 165–66 (Colo. Apr. 12, 20 07), available at
https://www.courts.state.co.us/userfiles/File/Court_Probation/Supreme_Court/
Rule_Changes/2007/07_07.pdf (last accessed Jan. 10, 2017). This Court has been
unable to locate any commentary on this particular change in Colorado.
Although former comment [15] is no longer a part of the Colorado Rules of
Professional Responsibility, and therefore no longer a part of the rules of attorney
conduct in this Court, it was not deleted for substantive reasons. Rather, the ABA (and,
presumably, the Colorado Supreme Court) simply concluded that questions of standing
are outside the scope of rules governing professional discipline. In this light, the Court
believes that the principles underlying former comment [15] should still apply. Thus,
courts should generally refuse to entertain a motion to disqualify based a conflict of
interest where the motion is brought by an opposing party. However, the opposing
party may have standing if it raises a conflict that, if left unaddressed, would clearly call
into question the fair or efficient administration of justice. The Court views this as akin
to the final prong of the plain error test, which requires an error that “would seriously
affect the fairness, integrity, or public reputation of judicial proceedings” if not corrected.
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United States v. Trujillo-Terrazas, 405 F.3d 814, 818 (10th Cir. 2005); cf. Abbott, 42 F.
Supp. 2d at 1050 (applying former comment [15] and permitting a defendant to move to
disqualify the plaintiffs’ counsel in light of “a clear public policy issue regarding the
ability of the Plaintiffs’ attorneys to provide individual counsel to [over 200] individual
plaintiffs [in a non-class action lawsuit]”).
Shapiro presents no argument that meets this standard. Shapiro argues that the
alleged conflict has materially limited the discovery process because Defendants’
counsel
have a disincentive to investigate the claims at issue in the
case, as any information that exculpates one defendant
might inculpate the other . . . . Independent counsel f or
Defendant Rynek and Defendant Doane would have entirely
different interests in the truth-seeking process of this
litigation and may well have pursued different strategies,
more clearly illuminating the facts at issue and leading to a
more just outcome.
(ECF No. 138 at 9; see also id. at 11 (“There is no incentive for Defendants or their
counsel to zealously develop the evidentiary record, as the search for truth in this case
will harm one defendant to the benefit of the other.”).) Shapiro extends this argument to
the trial process, claiming that “Defendants’ counsel’s conflict of interest materially limits
evidence [that will be introduced] in this case.” (Id. at 12.) For reasons discussed in
Part III.C, below, these arguments rely on an inaccurate view of the facts of this case,
and there is no support for the idea that the evidence will be materially limited at trial
(nothing prevents Shapiro from bringing out any evidence that Defendants withhold).
But even at a more abstract level, Shapiro’s argument rests on the notion that a
plaintiff’s own discovery and trial efforts will be inadequate to uncover the truth, and so
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it would be helpful to have defendants whom the plaintiff could play off of each other.
The Court sees no issue here that clearly calls into question the fair and efficient
administration of justice.
Accordingly, the Court finds that Shapiro lacks standing to challenge Defendants’
counsel’s conflict of interest.
C.

Merits
Even if Shapiro had standing to move to disqualify Defendants’ counsel, his

argument fails on the merits. Rynek intends to testify that he was not involved in the
alleged strip search, does not know who conducted the search, and that any strip
search on the day in question would have been performed by NTU officers—thus
implicitly accusing Doane. (ECF No. 140 at 1–2; ECF No. 144 at 9.) If Doane
disagreed that NTU officers would have performed any strip search, then Doane’s and
Rynek’s interests would potentially be in conflict such that their joint representation
would be impermissible under Rule 1.7. However, Doane agrees with Rynek and plans
to testify that “one of the three transport officers [inclusive of himself] . . . would have
certainly searched Plaintiff prior to transport” but any such search “would have been
conducted individually and in private.” (Id. (internal quotation marks omitted; emphasis
removed).)1
Shapiro envisions a scenario in which Rynek and Doane are represented by
separate counsel, who each pursue a strategy of attempting to lay blame on the other’s

1

As part of proceedings regarding this Motion to Disqualify, the Court required
Defendants’ counsel to obtain a declaration from Doane confirming that this is his story. (ECF
No. 140 at 2.) Doane submitted just such a declaration. (ECF No. 144-4.)

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client. There are cases in which such a strategy would be appropriate, but failure to
pursue such a strategy in this case is not a manifestation of the conflict of interest. If
Rynek does not know who conducted the strip search or how it was conducted, it is not
his attorney’s professional duty to pursue a strategy implicating Doane. In this case, as
it turns out, Rynek’s testimony does implicate Doane indirectly, but if the case were
otherwise, hypothetical separate counsel for Rynek would have violated no ethical duty
by choosing to stand on the defense that Rynek simply was not present at the alleged
strip search.
Similarly, if Doane believes that someone other than Rynek performed the strip
search, it is not his hypothetical separate attorney’s duty to pursue a strategy
implicating Rynek simply because it would be to Doane’s advantage to aim the spotlight
at Rynek. To the contrary, the attorney would likely violate various Rules of
Professional Conduct if he or she attempted to present an exculpatory scenario
contrary to his or her own client’s story. See, e.g., Colo. RPC 3.1 (“A lawyer shall not
bring or defend a proceeding, or assert or controvert an issue therein, unless there is a
basis in law and fact for doing so that is not frivolous . . . .”); Colo. RPC 3.4 (“A lawyer
shall not * * * counsel or assist a witness to testify falsely * * * [or] in trial, allude to any
matter that the lawyer does not reasonably believe is relevant or that will not be
supported by admissible evidence . . . .”).
In the Summary Judgment Order, the Court expressed concern about Doane
potentially using Shapiro’s identification of Rynek to deflect attention from himself and
inculpate Rynek. (ECF No. 131 at 14.) Defendants now clarify that they plan to use
Shapiro’s identification and later apparent retraction of that identification as “prior
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inconsistent statements to the mutual benefit of both Defendants.” (ECF No. 135 at 5.)
In other words, as the Court understands it, Defendants plan to use this information in
Shapiro’s cross-examination, not in Doane’s direct examination. With this
understanding, the Court’s previous concerns have been sufficiently addressed.
Shapiro also points to a “Incident Report” that Rynek authored on January 17,
2013, apparently in response to an inmate’s grievance regarding the alleged strip
search. (ECF No. 138 at 8; ECF No. 138-14.) 2 In that report, Rynek recorded what
another Sterling official said to him: “Lt. Weeder stated to me that NTU Transport staff
are the [ones] who conducted strip search[es] that way.” (Id. at 2.) The Court will not,
in this context, address whether this statement is admissible for the truth of what
Lt. Weeder reportedly said. Assuming it is admissible for that purpose, it creates no
conflict of interest. It still sets up the same basic scenario already present: Rynek
believes that NTU officers performed whatever strip search took place, and Doane
denies that claim only to the extent Shapiro asserts that the strip search was in public.
Lt. Weeder’s statement to Rynek may be evidence against Doane as to the latter point,
but it is not an accusation by Rynek that Doane performed a public strip search.
The Court therefore declines to disqualify Defendants’ counsel.
IV. ATTORNEYS’ FEES
Defendants argue that they deserve their attorneys’ fees incurred in responding
to Shapiro’s Motion to Disqualify. (ECF No. 144 at 17.) Although the Court has found
that the Motion lacks merit, and the Court is concerned about its timing (given the

2

It is not clear whether Shapiro filed this grievance, nor whether the grievance was filed
against Rynek.

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proximity to trial), the Court in its discretion finds that fee-shifting is not warranted.
Shapiro’s arguments are misdirected, but the Court does not view them as frivolous,
vexatious, or harassing. Defendants’ request is therefore denied.
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Shapiro’s Motion to Disqualify (ECF No. 138) is DENIED;

2.

This matter REMAINS SET for a Final Trial Preparation Conference on
February 3, 2017 at 4:00 p.m., and a 4-Day Jury Trial beginning on Tuesday,
February 21, 2017, both in Courtroom A801; and

3.

Counsel are directed to the undersigned’s Revised Practice Standards (revised
effective December 1, 2016) to ensure compliance with all deadlines triggered by
the dates of the Final Trial Preparation Conference and Trial.
Dated this 11th day of January, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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