Harris v. City of Kansas City, Kansas Fire Department et al

Filing 60

MEMORANDUM AND ORDER denying 17 Motion to Disqualify Counsel. Signed by Magistrate Judge Gwynne E. Birzer on 3/26/19. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JYAN HARRIS,
Plaintiff,
v.
CITY OF KANSAS CITY, KANSAS
FIRE DEPARTMENT, et al.,
Defendants.

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Case No. 18-2084-JAR-GEB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Disqualify Scott Brown and
his firm, Blake & Uhlig, P.A., from representing Defendant IAFF Local 64 or any other
opposing party in this case. (ECF No. 17). On March 6, 2019, the Court conducted a
hearing on Plaintiff’s motion. Plaintiff Jyan Harris appeared in person and through
counsel, Alexander Edelman. Defendants City of Kansas City, Kansas Fire Department
and the Unified Government of Wyandotte County/City of Kansas City, Kansas appeared
through counsel, Kelli M. Broers. Defendant IAFF Local 64 appeared through counsel,
Scott L. Brown. After consideration of Plaintiff’s motion and memorandum in support
(ECF Nos. 17, 18), Defendants’ Memorandum in Opposition (ECF No. 22), Plaintiff’s
Reply (ECF No. 28), and additional argument from counsel, Plaintiff’s Motion to
Disqualify was DENIED by oral ruling at the conclusion of the hearing. This written
opinion memorializes that ruling.

I.

Background1
Plaintiff, an African-American man, worked as a firefighter for the Kansas City,

Kansas Fire Department (“KCKFD”) and the Unified Government (“UG”) from May 2004
until September 28, 2016, when he was suspended pending termination for alleged
misconduct regarding his time worked. As part of his employment, he was a member of
the IAFF Local 64 labor union (“IAFF”), which has a collective bargaining agreement
(“Memorandum of Understanding” or “MOU”2) with the KCKFD. After his suspension,
on Plaintiff’s behalf, the union filed a grievance per the MOU procedure. Months later, as
part of this procedure, an arbitration was held, and Plaintiff’s termination was upheld by
the arbitrator.
After initiating the grievance procedure, but prior to arbitration, Plaintiff filed this
federal case against his employers and the IAFF. He asserts claims of discrimination in
employment and union representation, and for retaliation under the Americans with
Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. (“ADA”) and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Plaintiff claims his actions
regarding his time worked were in full compliance with the regular practices of the
department and were pretexts for suspending and terminating him. He alleges he was

1

Unless otherwise indicated, the information recited in this section is taken from the Complaint
(ECF No. 1), the Answers of the defendants (ECF Nos. 7, 12, 36) and from the briefing surrounding
the motion to disqualify (ECF Nos. 17, 18, 22, 28).
2
Plaintiff refers to the collective bargaining agreement as a “Memorandum of Understanding.”
(ECF No. 18.) IAFF refers to the same document as both a “Memorandum of Understanding” and
a “Memorandum of Agreement.” (See ECF No. 22.) For clarity, the Court uses the term
“Memorandum of Understanding.”
2

suspended due to his race and because of his disability, or perceived disability, after being
injured twice while on duty. He also contends IAFF failed to properly pursue his grievance
and represent him during the grievance and arbitration proceedings.
Currently, the litigation is progressing through discovery. Discovery is set to close
on April 19, with a pretrial conference set for April 22, 2019, and a jury trial scheduled for
January 2020. (ECF No. 53.)
II.

Relevant Facts3
As noted above, Plaintiff was suspended by KCKFD pending termination on

September 28, 2016. The next day, IAFF filed a grievance on Plaintiff’s behalf to oppose
the disciplinary action. At the union’s direction, Plaintiff met with IAFF’s counsel, Scott
Brown, to discuss the grievance and the related process. During the March 6, 2019 hearing,
Mr. Brown proffered, and Plaintiff did not dispute, that Mr. Brown never met with Plaintiff
alone; rather, a union representative or other individual was always present.4 Plaintiff
claims both Mr. Brown and IAFF representatives told him they would be representing him,
but never told him Mr. Brown solely represented IAFF. (ECF No. 18-1, Ex. A, Decl. of
Jyan Harris, ¶¶ 10, 23.) But Mr. Brown claims he explained to Plaintiff he was representing
IAFF in the grievance matter and, at no time, did he tell Plaintiff he represented him

3

Unless otherwise indicated, the information recited in this section is taken from the Complaint
(ECF No. 1), the Answers of the defendants (ECF Nos. 7, 12, 36) and from the briefing surrounding
the motion to disqualify (ECF Nos. 17, 18, 22, 28).
4
Recording of motion hearing (March 6, 2019, tape no. 10:32-11:24). The hearing was recorded,
but not transcribed. If any party wishes to purchase a written transcription, it may contact the
chambers of the undersigned for more information.
3

personally. (ECF No. 22-7, Ex. G, Decl. of Scott Brown, ¶¶ 6-7.)5 Mr. Brown did not
present an engagement letter to Plaintiff, or otherwise engage in any written
correspondence with Plaintiff, and the IAFF paid Mr. Brown’s fees.6
As a part of the process outlined in the MOU, the grievance advanced to arbitration
after several months. Plaintiff was unhappy with the lack of progress on the grievance (see
ECF No. 18-1, Ex. A, at ¶¶ 13-14),7 although IAFF claims it was actively investigating the
merits of the grievance over those months (ECF No. 22, at 3). Regardless, in the months
between the initial grievance and the arbitration, Plaintiff took additional action on his
claims.
On July 19, 2017, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) against all Defendants, including IAFF.
(ECF No. 1, Ex. A.) Mr. Brown responded to the EEOC charge on behalf of IAFF on
August 18, 2017. (ECF No. 22-2, Ex. B, Position Statement of IAFF.) At some time prior
to filing his EEOC charge, Plaintiff retained his current counsel at the law firm of Edelman,
Liesen & Meyers, LLP, by whom he continues to be represented. After receiving Notices
of Right to Sue, Plaintiff filed this action on February 19, 2018.
Mr. Brown met with Plaintiff prior to the arbitration proceeding, in approximately

5

See also Recording of motion hearing (March 6, 2019, tape no. 10:32-11:24); supra note 4. Mr.
Brown proffered, “it is my routine, my habit, my practice [as counsel for IAFF] of telling each
grievant I meet with, for any of my union clients, that I’m there because the union has asked me
to assist them in meeting their duty of fair representation; or in helping them represent the
individual. I always make it clear it is the union who is my client in that way.”
6
See also Recording of motion hearing (March 6, 2019, tape no. 10:32-11:24); supra note 4.
7
See also Recording of motion hearing (March 6, 2019, tape no. 10:32-11:24); supra note 4.
4

January 2018. Plaintiff contends Mr. Brown worked with him to prepare for the arbitration,
he shared information and statements from other firefighters with Mr. Brown, and Mr.
Brown advised him on the strength of his case. (ECF No. 18-1, Ex. A, ¶ 20.) Plaintiff
states he understood Mr. Brown was his attorney. (Id.) Again, Mr. Brown claims he
explained to Plaintiff that he represented IAFF in the arbitration proceedings. (ECF No.
22-7, Ex. G, ¶ 6.)
On November 13, 2017, Mr. Brown sent a letter to the arbitrator, stating, in part, “I
will be representing the Union in this grievance.” (ECF No. 22-6, Ex. F.) The arbitration
documents clearly list the union, IAFF, as the party pursuing the grievance. (ECF No. 225, Ex. E at 1.) Prior to arbitration, Ms. Sarah Liesen, current counsel for Plaintiff, contacted
Mr. Brown by email to inquire whether she could attend the arbitration hearing. (ECF No.
22-6, Ex. F, at 2-3.) After discussion with counsel for UG/KCKFD, Ms. Liesen’s request
was denied, citing the longstanding general practice of the employer to deny requests from
grievants to “have their personal legal representatives present at various stages of the
grievance procedure.” (Id. at 3.)
Arbitration was held on March 9, 2018. Following the arbitration, Mr. Brown
emailed Ms. Liesen to inquire whether it would be acceptable for IAFF to notify Plaintiff
after a decision was rendered. (ECF No. 22-6, Ex. F, at 4.) Ms. Liesen responded, noting
“It would be fine for the union to notify Jyan.” (Id.) The arbitrator issued his decision on
May 18, 2018. (ECF No. 18-3, Ex. C.). In a single sentence of the arbitrator’s decision,
it states, “The Grievant was in attendance and represented by Scott L. Brown, Esq.” (ECF
No. 18-3, Ex. C, at 1). In a May 18, 2018 email, Mr. Brown suggested to UG’s counsel
5

they “provide a copy of the decision to Mr. Harris and his attorney.” (ECF No. 22-6, Ex.
F, at 5.)
After Plaintiff filed his Complaint in this Court, IAFF filed an Answer and Mr.
Brown entered his appearance (ECF No. 12), prompting Plaintiff to seek Mr. Brown’s
disqualification.
III.

Summary of the Parties’ Legal Arguments
Plaintiff asks the Court to disqualify Scott Brown and his firm, Blake & Uhlig, P.A.,

from representing Defendant IAFF Local 64 pursuant to Kansas Rule of Professional
Conduct (“KRPC”) 1.9. Plaintiff claims Mr. Brown previously represented him, and his
representation of IAFF in this matter creates a conflict of interest which he did not waive.
Plaintiff further argues because Mr. Brown must be disqualified, his conflict is imputed to
all members of the Blake & Uhlig law firm and, therefore, the entire firm is barred from
representing the Defendants pursuant to KRPC 1.10(a). Plaintiff also argues if Mr. Brown
was not Plaintiff’s attorney during the arbitration, Plaintiff’s due process rights were
violated because he was not permitted to bring Ms. Liesen to the arbitration hearing.
Defendant IAFF Local 64 contends Mr. Brown never told Plaintiff he was
representing him; rather, Mr. Brown was representing Plaintiff only as a union member
through Mr. Brown’s representation of IAFF. IAFF presents four primary arguments: 1)
federal courts have found no attorney-client relationship between union counsel and the
union member; 2) under KRPC 1.9(a), plaintiff cannot show an attorney-client relationship
existed; 3) the Kansas Public Employer-Employee Act (“PEERA”) contradicts Plaintiff’s
argument an attorney-client relationship exists between union counsel and Plaintiff; and 4)
6

Plaintiff was not deprived of procedural Due Process rights under PEERA.
Defendants KCKFD and UG did not file a written response to the motion, and
although their counsel was present during the hearing, they did not take a position on the
issue.
IV.

Legal Standards
The Court has inherent supervisory powers to control the appearance of attorneys

before the Court, and motions to disqualify counsel are committed to the Court’s sound
discretion.8 The Kansas Rules of Professional Conduct have been adopted by the District
of Kansas as the “applicable standards of professional conduct,”9 and the Court must also
look to Kansas case law for guidance in interpreting those rules.10
A motion to disqualify must be decided on the unique facts of the case, and the
Court is forced to balance competing considerations. These include the privacy of the
attorney-client relationship, the prerogative of each party to choose its own counsel, and
the hardships that disqualification would impose upon the parties and the entire judicial
process.11 As required by law, the Court approaches the motion and the opposing parties’
response with caution, mindful that they can be misused as a litigation tactic or technique

8

Coffeyville Res. Ref. & Mktg. v. Liberty Surplus Ins. Corp., No. 08–1204–WEB-KMH, 261
F.R.D. 586, 589 (D. Kan. 2009) (citing Koch v. Koch Industries, No. 85–1636–SAC, 798 F. Supp.
1525 (D. Kan. 1992)).
9
D. Kan. Rule 83.6.1(a).
10
Seifert vs. Unified Government of Wyandotte County and Kansas City, Kansas, et al., No. 112327-JTM, 2016 WL 187994, at *1 (D. Kan. Jan. 14, 2016) (citing Graham by Graham v. Wyeth
Labs. Div. of Am. Home Products Corp., 906 F.2d 1419, 1423 (10th Cir. 1990)).
11
Layne Christensen Co. v. Purolite Co., No. 09-2381-JWL-GLR, 2011 WL 1113543, at *5 (D.
Kan. Mar. 24, 2011).
7

of harassment.12 “A motion to disqualify counsel deserves serious, conscientious, and
conservative treatment.”13
A.

KRPC 1.9

The first rule implicated by the current motion is KRPC 1.9, which addresses a
lawyer’s duty to a former client. The purpose of this rule is to protect former clients.14
Specifically, KRPC 1.9(a) states:
A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the interests
of the former client unless the former client gives informed consent,
confirmed in writing.
The party seeking disqualification under KRPC 1.9 bears the burden 15 to demonstrate the
existence of three elements: “(1) an actual attorney-client relationship existed between the
moving party and the opposing counsel; (2) the present litigation involves a matter that is
‘substantially related’ to the subject of the movant's prior representation; and (3) the
interests of the opposing counsel’s present client are materially adverse to the movant.”16
If all three factors are present, the attorney must be disqualified.
B.

KRPC 1.10

KRPC 1.10 deals with the imputation of an attorney’s conflict to his or her current

12

Id. at *5; Venters v. Sellers, 261 P.3d 538, 544 (Kan. 2011) (citing Associated Wholesale
Grocers, Inc. v. Americold Corp., 975 P.2d 231 (Kan. 1999)).
13
Layne Christensen Co., 2011 WL 1113543, at *5 (citing Koch, 798 F. Supp. at 1530).
14
KRPC 1.9 cmt. 9.
15
Seifert, 2016 WL 187994, at *1; Flint Hills Sci., LLC. v. Davidchack, No. 00-2334-JAR, 2002
WL 975881, at *6 (D. Kan. Mar. 21, 2002).
16
Seifert, 2016 WL 187994, at *1 (citing Weeks v. Indep. Sch. Dist. No. I–89 of Okla. County, 230
F.3d 1201, 1212 (10th Cir. 2000).
8

law firm. This rule requires,
(a) while lawyers are associated in a firm, none of them shall knowingly
represent a client when any one of them practicing alone would be prohibited
from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a
personal interest of the prohibited lawyer and does not present a significant
risk of materially limiting the representation of the client by the remaining
lawyers in the firm.
“When a motion to disqualify is brought under Rule 1.9(a) and 1.10(a), disqualification is
imputed to lawyers practicing together without regard to whether client confidences
actually have been shared.”17
An evidentiary hearing is not required when dealing with a motion under KRPC
1.9(a) and 1.10(a).18 However, in this instance, the Court felt additional argument may be
helpful to further illuminate the details of Plaintiff and Mr. Brown’s prior affiliation.
Therefore, using its discretion, the Court convened a hearing.
V.

Discussion
A. KRPC 1.9 Factors
As an initial step, the Court must first apply the three factors cited above to

determine whether a KRPC 1.9 conflict exists. The parties agree the second and third
factors are present here: the current matter is “substantially related” to the alleged prior
representation, and the interests of Mr. Brown’s present client are materially adverse to
17

Flint Hills Sci., 2002 WL 975881, at *6 (citing Monroe v. City of Topeka, 988 P.2d 228, 232
(Kan. 1999).
18
Flint Hills Sci., 2002 WL 975881, at *6 (citing Chrispens v. Coastal Ref. & Mktg., Inc., 897
P.2d 104, 115 (Kan. 1995) (noting that the hearing may “result in the disclosure of the very
information [KRPC] 1.9 was designed to protect from disclosure”); see also Layne Christensen
Co., 2011 WL 1113543, at *6 (citing Fullmer v. Harper, 517 F.2d 20, 21 (10th Cir.1975) (for
proposition that sometimes an evidentiary hearing is necessary); and Weeks, 230 F.3d at 1212 (for
the idea that a hearing is not always required).
9

Plaintiff.

Therefore, the focus of the Court’s analysis is on the sole remaining factor:

whether a previous attorney-client relationship actually existed between Plaintiff and Mr.
Brown.
In determining whether an attorney-client relationship existed, it is important to note
“an attorney-client relationship need not have a formal contract;” 19 rather, an implied
attorney-client relationship is possible.20 Additionally, the payment of legal fees alone does
not determine the formation of such a relationship.21 “Instead, an attorney-client
relationship can be established where the party shows that (1) it submitted confidential
information to a lawyer and (2) it did so with the reasonable belief that the lawyer was
acting as the party's attorney.”22
Although “reasonable belief” has not been specifically defined, the Tenth Circuit,
in the 1994 case of Cole v. Ruidoso,23 found, “Although the alleged former client’s
subjective belief can be considered by the court, this belief is not sufficient to establish an
attorney-client relationship. In addition to having a subjective belief that there was an
attorney-client relationship, the belief must have been reasonable.”24 In Cole, plaintiff was
a former principal of the defendant school district and moved to disqualify defendant’s

19

Layne Christensen Co., 2011 WL 1113543, at *6.
See Matter of Hodge, 307 Kan. 170, 202, 407 P.3d 613, 641 (2017) (citing Associated Wholesale
Grocers, Inc., 266 Kan. at 1053).
21
Layne Christensen Co., 2011 WL 1113543, at *6.
22
Id. (emphasis added).
23
Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1384 (10th Cir. 1994) (applying New Mexico rules
of professional conduct, based upon ABA Model Rule 1.9).
24
Id. (citing Dalrymple v. National Bank and Trust Co. of Traverse City, 615 F. Supp. 979 (W.D.
Mich. 1985); Kubin v. Miller, 801 F. Supp. 1101, 1115 (S.D.N.Y. 1992); other internal citations
omitted) (emphasis added).
20

10

counsel. Cole claimed a prior attorney-client relationship existed between she and the
school’s current litigation counsel, because “she believed the law firm represented her
individually when she consulted with its attorneys on ‘sensitive personnel issues’ and acted
on their advice.”25 The district court reviewed affidavits from both sides, held a hearing,
and determined no attorney-client relationship existed. The Tenth Circuit agreed, finding
there was no reasonable basis for Cole’s belief the firm represented her individually.26
Similarly, although the Court applied California law, a later unpublished Tenth Circuit
opinion in a separate case states, “a would-be client’s unilateral belief, especially in civil
cases, does not create an attorney-client relationship.”27
B.

Caselaw Regarding Relationships with Union Counsel

Both parties relied on various caselaw to support their arguments; however, neither
the parties nor this Court located binding authority directly on point. Some cited cases
involved employee union members later suing a union attorney for legal malpractice, which
makes the cases distinguishable on the facts and legal situation.28 Other more factually

25

Id.
Id.
27
Templeton v. Catlin Specialty Ins. Co., 612 F. App'x 940, 964 (10th Cir. 2015) (citing Zenith
Ins. Co. v. Cozen O'Connor, 148 Cal. App. 4th 998 (2007), applying California law) (“a would-be
client's unilateral belief, especially in civil cases, does not create an attorney-client relationship.”)
See also, e.g., Marshall v. G.E. Marshall, Inc., No. 2:09-CV-198, 2010 WL 3219307, at *3 (N.D.
Ind. Aug. 12, 2010) (finding, “a would-be client's unilateral belief, especially in civil cases, does
not create an attorney-client relationship”).
28
See, e.g., Arnold v. Air Midwest, Inc., 100 F.3d 857, 862-63 (10th Cir. 1996) (see discussion,
infra page 13); see also, e.g., Peterson v. Kennedy, 771 F.2d 1244, 1258 (9th Cir. 1985) (finding,
“when the union is providing the services, it is the union, rather than the individual business agent
or attorney, that represents and is ultimately responsible to the member. We do not believe that an
attorney who is handling a labor grievance on behalf of a union as part of the collective bargaining
process has entered into an “attorney-client” relationship in the ordinary sense with the particular
union member who is asserting the underlying grievance. Although the attorney may well have
26

11

similar cases are from other jurisdictions and are therefore only persuasive. 29 What this
Court takes from the referenced authorities is this conclusion: courts agree counsel who
represent the union during a grievance/arbitration process should not be automatically
disqualified from later representing the union in litigation. However, this does not mean
they can never be disqualified. The Court must examine the unique facts of each situation.

certain ethical obligations to the grievant, his principal client is the union; it is the union that has
retained him, is paying for his services, and is frequently the party to the arbitration proceedings.”)
29
See, e.g., Griesemer v. Retail Store Employees Union, 482 F. Supp. 312 (E.D. Pa. 1980). A
disqualification case, the court found “[n]o confidential relationship develop[s] between plaintiff
and [the union's attorney] under the circumstances,” and “[r]epresenting the local union in
processing a grievance does not automatically disqualify counsel from representing the union
when the dissatisfied grievant sues.” Id. at 315. Although the analysis is persuasive, the facts in
Griesemer are distinguishable: plaintiff admitted during testimony at hearing that the union’s
attorney did not represent her; and he did not ever hold himself out as her attorney. Id. at 314.
See also Adamo v. Hotel, Motel, Bartenders, Cooks and Restaurant Workers’ Union, 655
F. Supp. 1129 (E.D. Mich. 1987). In Adamo, much as here, plaintiff moved to disqualify the law
firm which handled plaintiff’s arbitration on behalf of the union. The court denied the motion to
disqualify, finding the union was the party in the arbitration, not the plaintiff. The court found,
“the member’s rights must be exercised through the union, and it is the union which is the client
of the law firm.” Id. at 1129. Adamo cites Griesemer to emphasize, if a law firm cannot represent
the union, every labor union would have to retain multiple counsel for various types of legal work.
Id. at 1130. The Adamo court found “nothing in this record to suggest any conflict of interest or
that any member of the law firm would be required to testify on other than formal matters at trial.”
Id.
See also Conn v. United States Steel, No. 207-CV-00213-JVB-PRC, 2009 WL 260955 at
*1 (N.D. Ind. Feb. 2, 2009). In Conn, plaintiff sought to disqualify the labor union attorney who
represented the union during the grievance process from representing the union in the federal
litigation. But in Conn, the focus was on confidential information provided the attorney under
Indiana ethics rule 1.18 and the attorney as a material witness under ethics rule 3.7. Id. at *4-7.
And, plaintiff did not claim she was ever a client of union counsel’s, or believed he represented
her interests. Rather, she was more concerned about the confidential information she provided to
him as part of their conversations. The court found the facts identified during their meeting
eventually appeared in the public records, so the information was not confidential, and counsel
was not disqualified. Id. at *6. But the court in Conn cited Griesemer and Adamo to register its
concern whether a decision to disqualify a union attorney from later representing the union in
litigation “would require every labor union to retain several law firms to handle specific areas of
potential litigation or proceedings in which the union may become embroiled.” Id. at n.2.
See also Greene v. Indep. Pilots Ass'n, No. 3:14-CV-00628-TBR, 2016 WL 6877745, at
*1 (W.D. Ky. Nov. 21, 2016) (see discussion, infra pages 13-14).
12

One Tenth Circuit case, originating in the District of Kansas, is particularly
instructive. In Arnold v. Air Midwest, Inc.,30 the plaintiff pilot brought claims against the
union, as well as breach of fiduciary duty and malpractice claims against the union’s
attorney.

In the initial orders in the District of Kansas, Judge Lungstrum granted

defendants’ motion to dismiss and summary judgment motions.31 The Tenth Circuit then
upheld both decisions, finding “the immunity for union agents . . . extends to lawyers, and
. . . an attorney who performs services for and on behalf of a union may not be held liable
in malpractice to individual grievants where the services performed constitute a part of the
collective bargaining process.”32

The Tenth Circuit found the pilot’s “attempt to

recharacterize [attorney’s] relationship to the union is not persuasive. [Counsel] was
retained by the union, not by [the employee]. [The attorney’s] services were provided to
[employee] as a benefit of [employee’s] union membership.”33
Also persuasive is a more recent case from the Western District of Kentucky. In
Greene v. Indep. Pilots Ass'n,34 the court was faced with a similar disqualification issue,
which also boiled down to whether an attorney-client relationship existed between the
union attorney and the employee.35 The court analyzed the issue using the Kentucky rules

30

100 F.3d 857, 862-63 (10th Cir. 1996).
See Arnold v. Air Midwest, Inc., No. 93-2426-JWL, 1994 WL 247442, at *7 (D. Kan. May 24,
1994), aff'd, 100 F.3d 857 (10th Cir. 1996) (finding “the state law breach of fiduciary duty and
malpractice claims against [union counsel] are also barred for the additional reason that state law
claims against individuals acting as union representatives within the ambit of the collective
bargaining agreement are foreclosed; see also Arnold v. Air Midwest, Inc., No. 93–2426–JWL,
877 F. Supp. 1452, 1456 (D. Kan. 1995), aff'd, 100 F.3d 857 (10th Cir. 1996).
32
Arnold, 100 F.3d at 862.
33
Id. at 862-63.
34
Greene, 2016 WL 6877745, at *1.
35
Id. at *4.
31

13

of professional conduct nearly identical to KRPC 1.9 and 1.10.36 The court found counsel
held himself out as counsel for the union. The court discussed an email from counsel,
identifying himself as “counsel for [the union]”, as well as a letter from the union to Greene,
and discussed the briefing submitted before the termination hearing where the attorney
filed briefs on behalf of the union, not Greene.37 The court noted, “granted, a layperson
may very well believe that when a union says, ‘our attorney will represent you,’ the union’s
attorney is also his attorney.”38 But the court found Greene “could not have reasonably
believed that was the case, because he employed his own personal counsel.”39
C.

Other Arguments

Although the ethics rules and related caselaw provide ultimate guidance, a brief
mention of the parties’ other arguments is prudent. Defendant IAFF cites the Kansas Public
Employer-Employee Act (“PEERA”), K.S.A. §§ 75-4321 et seq., to support its position.
IAFF contends the laws contradict Plaintiff’s argument that an attorney-client relationship
could exist between a union attorney and a union member because the statutes give unions
the exclusive right to represent their members in the grievance and arbitration process.
However, nothing in the PEERA statutes or the portions of the Memorandum of
Understanding produced by the parties mention the representation of the union or the union
members by counsel. Because PEERA does not address the formation of the attorneyclient relationship, the Court finds the argument unpersuasive.

36

Id. at *2-*3 (citing, in part, Kentucky Supreme Court Rules 3.130(1.9) and 3.130(1.10)).
Id. at *4.
38
Id.
39
Id.
37

14

Equally unconvincing to this Court is Plaintiff’s Due Process argument. In sum,
Plaintiff contends if Mr. Brown represented Plaintiff personally during the arbitration
hearing, his constitutional right to procedural Due Process was upheld. If the Court finds
Mr. Brown was not Plaintiff’s personal representative, then his right to have counsel
present was violated. Defendant responds that nothing in the MOU allows Plaintiff to have
an attorney present; in fact, counsel are routinely not permitted during arbitration, and it is
the union’s decision how to conduct the arbitration, pursuant to the MOU.
But Plaintiff confuses his right to Due Process with his right to counsel. Plaintiff
cites a 1991 Tenth Circuit case, Melton v. City of Oklahoma City,40 to argue courts have
recognized a deprivation of the right of continued employment requires a hearing at which
the employee is represented by an attorney. However, Plaintiff cites the dissent in Melton,
and the Court did not definitively find attorney representation necessary prior to
termination.41 Defendant cites to both Kansas state caselaw and District of Kansas federal
caselaw to show both courts have held, if the MOU between the parties provides for
termination of employees only for “just cause” and the MOU contains a detailed grievance
procedure, Due Process is protected. None of the authority cited by the parties, or the
MOU itself, require presence of counsel.
Here, the Court finds both the PEERA issue and the Due Process analysis frankly
extraneous to its consideration of whether an attorney-client relationship was formed.
Whether or not the process outlined in the MOU and enforced by the IAFF and the

40
41

928 F.2d 920, 939 (10th Cir. 1991).
Id.
15

employer preserved Plaintiff’s right to Due Process is outside the scope of this Court’s
analysis. Even if Plaintiff’s Due Process rights had been violated—a topic which this Court
does not address on its merits—neither PEERA or the parties’ Due Process arguments
directly bear on the ultimate issue of whether an attorney-client relationship was created.
For this analysis, the Court must look to the ethical rules and related caselaw discussed
above.
D.

Factual Analysis

Based upon the KRPC 1.9 analysis, the only element at issue is whether a prior
attorney-client relationship existed between Plaintiff and Scott Brown. There are no
binding District of Kansas or Tenth Circuit cases fully on-point. And, Plaintiff is correct:
many of the cases cited by Defendant say “by itself, an attorney’s advocacy on behalf of an
employee in a labor [union] cannot create an attorney-client relationship. [But] the cases
do not say that such a relationship can never exist.” (Reply, ECF No. 28, at 7.) However,
upon review of the facts, the Court finds no such relationship existed here.
If the only evidence presented were the competing affidavits of Plaintiff and Mr.
Brown, giving us a “he said vs. he said” situation, the Court would resolve any doubts in
favor of disqualification.42 But this is not the situation this Court encounters. The totality
of the evidence, viewed in conjunction with the caselaw, weighs against formation of an
attorney-client relationship. Written documents identify Mr. Brown as “attorney for the
union.” Plaintiff admits IAFF paid Mr. Brown for his services. Mr. Brown and Plaintiff

42

Seifert, 2016 WL 187994, at *1; United States v. Wittig, No. 03-40142-01-JAR, 2005 WL
7139151, at *3 (D. Kan. May 6, 2005). See also Koch, 798 F. Supp. at 1530.
16

never met alone. Although it is true none of these things alone mean no relationship
existed, the Court must examine them in the aggregate.
In addition to these facts, Plaintiff retained Ms. Liesen as counsel prior to the
arbitration hearing. The emails between Ms. Liesen and Mr. Brown prior to arbitration
make clear she is Mr. Brown’s personal representative—not Mr. Brown. Ms. Liesen asked
to attend the arbitration on Plaintiff’s behalf. After the arbitration, Mr. Brown asked Ms.
Liesen for permission to contact her client. And, even without hiring personal counsel, by
August 2017, after IAFF responded to Plaintiff’s EEOC charge and nearly seven months
prior to the arbitration, it was clear Mr. Brown was representing IAFF in the EEOC matter
in a position clearly adverse to Plaintiff. (See IAFF’s Position Statement, ECF No. 22-2,
Ex. B.) The only evidence43 before the Court to suggest an attorney-client relationship
existed is the subjective belief of Plaintiff—his assertion Mr. Brown told Plaintiff he was
his attorney. But, as has been held in prior cases, a subjective belief is not enough.44
Also weighing against disqualification is Plaintiff’s failure to identify any prejudice
he faces by permitting Mr. Brown to continue his representation of IAFF in this case.
Plaintiff does not describe how Mr. Brown’s continued representation gives IAFF a
material advantage in this lawsuit, or how the information he gave Mr. Brown (for use

43

Plaintiff also contends the arbitration order identifies Mr. Brown as his counsel. Although the
order does identify Mr. Brown as counsel for the Grievant in its opening paragraph, the same order
also clearly names the parties to the arbitration as “Unified Government of Wyandotte County Kansas City, Kansas Fire Department and International Association of Fire Fighters Local No.
64”—not Plaintiff personally. (See ECF no. 18-3, Ex. C.) Therefore, the references in the
arbitrator’s order neither help nor hinder this analysis.
44
See Cole, 43 F.3d at 1384; Layne Christensen Co., 2011 WL 1113543, at *6.
17

against the employer, not against IAFF) would not have otherwise been utilized in this
litigation. Without any description of prejudice, it seems the “playing field is not so tilted
as to deny” Plaintiff a fair trial.45 The Court would be remiss to ignore the prerogative of
IAFF to choose its legal counsel, and the hardships that disqualification would certainly
impose upon all parties—including Plaintiff—and the entire judicial process.46
The Tenth Circuit’s analysis in Arnold47of the relationship between the union’s
attorney and the employee is compelling. As in Arnold, here Plaintiff’s attempt to
recharacterize Mr. Brown’s relationship to the union is not persuasive. Mr. Brown was
secured and employed as a representative of the union, not by Plaintiff personally. Mr.
Brown’s services were provided to Plaintiff as a benefit of Plaintiff’s union membership.
After the analysis of all evidence before the Court, although Plaintiff, as a layperson, may
believe Mr. Brown, acting as the union attorney, also represented him personally, the Court
finds Plaintiff could not have reasonably believed that was the case.48 Because this Court
finds no attorney-client relationship existed, no conflict of interest exists under KRPC 1.9
and disqualification is not warranted.
Because disqualification of Scott Brown is not required under KRPC 1.9,
disqualification of his law firm, Blake & Uhlig, P.A., under KRPC 1.10(a) must also be
denied.

45

Prof'l Serv. Indus., Inc. v. Kimbrell, 758 F. Supp. 676, 684 (D. Kan. 1991).
Layne Christensen Co., 2011 WL 1113543, at *5 (citing Nat'l Bank of Andover, N.A. v. Aero
Standard Tooling, Inc., 49 P.3d 547, 533 (Kan. App. 2002)).
47
Arnold, 100 F.3d at 862-63.
48
Greene, 2016 WL 6877745, at *1.
46

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VI.

Conclusion
Applying the test necessary to determine whether a KRPC 1.9 conflict exists, the

Court finds Plaintiff has not met his burden to prove all three elements are present.
Specifically, the Court finds no attorney-client relationship existed, and Mr. Brown is not
disqualified from representing Defendants in this matter. As a result, the law firm of Blake
& Uhlig, P.A., is not disqualified under KRPC 1.10.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Disqualify Scott
Brown and his firm, Blake & Uhlig, P.A. (ECF No. 17) is hereby DENIED as set forth
above.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 26th day of March, 2019.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

19