Riley et al v. PK Management, LLC et al
Filing
233
MEMORANDUM AND ORDER denying 212 Motion for Sanctions filed by Defendant Aspen Companies Management, LLC. Signed by Magistrate Judge Teresa J. James on 9/9/2019. (ts)
Case 2:18-cv-02337-KHV-TJJ Document 233 Filed 09/09/19 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEORA RILEY, et al.,
Individually and on behalf of all others
similarly situated,
Plaintiffs,
v.
PK MANAGEMENT, LLC, et al.,
Defendants.
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Case No. 18-cv-2337-KHV-TJJ
MEMORANDUM AND ORDER
This 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.1 Upon consideration of the matter, the Court finds the motion should be
denied.
Background
This 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
1
No other Defendant joined in the motion, and none filed a response.
1
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Wyandotte County lawsuits without prejudice. On May 3, 2018, counterclaim plaintiffs/thirdparty plaintiffs Leora Riley, Terri Ozburn, and Carolyn Bell dismissed their counterclaims
against Central Park Towers without prejudice.2
Following 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.3 Defendant PK Management, LLC timely filed a notice of removal.4
Plaintiffs’ 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.5 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 (Count Eight).6
2
Notice of Removal (ECF No. 1) at 2.
3
ECF No. 1-1 at 127-210.
4
ECF No. 1.
5
See Fed. R. Civ. P. 23(b) (“Types of Class Actions”).
6
Second Amended Class Action Complaint (ECF No. 204).
2
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The 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’s7 Social Services Coordinator Keirei Broadus
telephoned Bell Law, LLC.8 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.9 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.10
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.11 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 then.12
Ms. 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
7
Aspen is the current property manager of Central Park Towers.
8
Plaintiffs are represented by Bryce Bell and Mark Schmitz, both of Bell Law, LLC; Gina
Chiala of the Heartland Center for Jobs and Freedom, Inc.; Jeffrey M. Lipman of Lipman Law
Firm, PC; and Zachary Poole of ZDP Law, LLC. Although Aspen seeks removal of all
Plaintiffs’ counsel, the motion makes no allegations against any attorney other than Bryce Bell.
9
Declaration of Janis Bell (ECF No. 228-1).
10
Declaration of Bryce B. Bell (ECF No. 228-3).
11
Id.
12
ECF No. 228-1.
3
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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.13 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.14
Eight 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.15 Mr. Bell did not ask for nor has Ms. Broadus provided any documents, including an
affidavit.16
Aspen’s 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.17 Although Mr. Bullins
conceded he had no written agreement with Ms. Broadus, he was referring to a meeting his
13
Declaration of Christopher Dandurand (ECF No. 228-2).
14
Id.
15
Carolyn Bell is no longer a Plaintiff. See Stipulation of Partial Dismissal Without Prejudice
(ECF No. 58).
16
ECF No. 228-3.
17
See email from Chris Dandurand to Jeffrey Bullins (ECF No. 228-2 at 6).
4
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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.18 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.”19 Mr. Dandurand offered to
make Ms. Broadus available for deposition, but to date no party has sought to depose her.
Legal Standard
Although Aspen styles its motion as one for sanctions, its sole focus is to seek
disqualification of counsel.20 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,
18
See email from Jeffrey Bullins to Chris Dandurand (ECF No. 228-2) at 5. The date of Mr.
Raines’s meeting with Ms. Broadus is unknown, but according to this email it was “several
months” before July 15.
19
Id.
20
In addition to seeking an order disqualifying all of Plaintiffs’ counsel, Aspen’s motion also
seeks the following relief: (1) an order to immediately cease and desist Plaintiffs’ counsel’s ex
parte contacts with Ms. Broadus; (2) an order for Plaintiffs’ counsel to produce to counsel for
Aspen a list of any other Aspen employees contacted by them since the initiation of this
litigation, a detailed summary of all such communications, and all statements and affidavits
obtained from such Aspen employees; (3) an order that all evidence from any improper ex parte
contacts by Plaintiffs’ counsel be excluded from evidence in this case; (4) an order preventing
Plaintiffs’ counsel from disclosing any information gained through any ex parte contacts to any
individual or party; and (5) an award of costs and fees for the motion. ECF No. 212 at 1-2. In its
briefing and during oral argument, Aspen advanced no argument in favor of these other forms of
relief. The Court finds Aspen has not met its burden to show it is entitled to any of these
additional sanctions.
5
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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).21
As 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.”22
Analysis
Aspen 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 order.23
Aspen 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
21
Biocore Med. Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660, 664 (D. Kan. 1998).
22
Id. (citing Koch v. Koch Indus., 798 F. Supp. 1525, 1530 (D. Kan. 1992).
23
Kan. S. Ct. Rule 226 at Rule 4.2. This court has adopted the Kansas Rules of Professional
Conduct as the applicable standard of professional conduct. See D. Kan. Rule 83.6.1(a).
6
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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 4.4.24
September 2018 Telephone Calls
Aspen 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, 2018.25 Aspen’s Rule 26(a)(1)(A) disclosures listed Margaret Mejia and Naftali
Levenbrown as individuals likely to have discoverable information, along with unnamed
24
Kan. S. Ct. Rule 226 at Rule 4.2 cmt. 7. This court has held that Comment 7 “is consistent
with [Rule 4.2] to the extent the comment explains which people involved with an organizational
party constitute ‘parties’ for purposes of the rule.” Holdren v. General Motors Corp., 13 F.
Supp. 2d 1192, 1194 (D. Kan. 1998).
25
See ECF No. 37.
7
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representatives of three pest control and exterminating businesses.26 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 19.27 Plaintiffs submitted a copy of Aspen’s
answers to Plaintiffs’ First Interrogatories served in October 2018, but neither do those answers
mention Ms. Broadus.
Aspen 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.28 Of those items, only one—Plaintiffs’
First Amended Complaint—is dated earlier than September 2018.
Recalling 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.29 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.
26
See Defendants Aspen Companies Management, LLC and Central Park Holdings, LLC’s Rule
26 Disclosures (maintained in Chambers files).
27
See ECF No. 41.
28
See ECF No. 213 at 6.
29
ECF No. 1-1 ¶¶ 58-80.
8
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But the First Amended Complaint contains no count for retaliatory eviction of Ms. Ozburn or
any other Plaintiff.30
In 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.”31 The Court therefore finds that the First Amended Complaint provides no evidence
that Plaintiffs knew that Ms. Broadus is a constituent of Aspen for purposes of Rule 4.2.32
Aspen next points to statements Ms. Riley made in her May 2019 deposition expressing
her opinion that Ms. Broadus is a racist, treats black and white tenants differently, and
inconsistently applies property rules that lead to lease violation notices.33 Accepting Ms. Riley’s
opinions as factually accurate for the sake of this motion, they do not support a finding that Ms.
30
The Court notes that the allegations concerning Ms. Broadus’s comments to Ms. Ozburn and
the eviction notice Ms. Ozburn received do not appear in Plaintiffs’ operative Second Amended
Complaint, thereby confirming that the issue of retaliatory eviction is not one Plaintiffs assert.
31
ECF No. 213-2 at 84.
32
In its reply brief, Aspen quotes a passage from Judge Waxse’s opinion in Hammond v. City of
Junction City, Kansas, 167 F. Supp. 2d 1271, 1287 (D.Kan. 2001) in which he found that
counsel “knew, or at the very least, should have known,” that the employee in question had
managerial responsibilities that rendered him off-limits. Aspen then argues that as of September
20, 2018, Mr. Bell should have known that Ms. Broadus was a constituent of Aspen with
authority to obligate it with respect to the subject matter of this litigation. See ECF No. 230 at 89. Rule 4.2 requires actual knowledge to establish a violation. Nevertheless, the Court also finds
the First Amended Complaint contains no facts from which Mr. Bell should have known that Ms.
Broadus is a constituent of Aspen for purposes of Rule 4.2.
33
ECF No. 213-4.
9
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Broadus is a constituent of Aspen for purposes of this lawsuit. Her actions, even if imputed to
Aspen, would not subject Aspen to liability for the habitability allegations at issue. Nor do they
convey Ms. Broadus’s authority to obligate Aspen in any habitability-related issue.
Finally, Aspen contends that Plaintiffs allege a failure by social services with respect to
pest control, which falls within Ms. Broadus’s job responsibilities, and therefore the allegation is
against Aspen and is intended to impute liability to Aspen. Aspen cites the May 17, 2019 report
of Plaintiffs’ pest management expert as the source of these allegations, but that report makes no
such allegation. Instead, in a paragraph in which the witness describes common difficulties in
obtaining tenant cooperation in the rigors of preparation for bed bug treatment, the witness
writes: “While there was some brief mention in the record of referring tenants to social services
to assist with sanitation and cleanup (Rhine Depo. 68-69; 1-14; 2-14), it’s unclear how often this
was done, particularly in respect to prepping for bed bug service.”34 The statement is
nonjudgmental and makes no allegation of a failure of responsibility by Ms. Broadus.
Accordingly, the Court finds the report does not support a conclusion that Mr. Bell knew in
September 2018 that Ms. Broadus is a constituent of Aspen for purposes of Rule 4.2.
The Court makes one additional observation about the state of Mr. Bell’s knowledge in
September 2018. While Comment 7 provides guidance for the Court’s analysis of the ex parte
contacts in this case, the Court rejects Aspen’s assertion that the Comment renders irrelevant the
issue of whether Ms. Broadus was represented by counsel in September 2018. When Ms. Bell
asked, Ms. Broadus denied having representation. Even if Ms. Broadus had met with Mr. Raine
before she attempted to contact Mr. Bell, as of September 19 she did not agree that Mr. Raine or
34
Expert Report of Michael F. Potter, Ph.D. (ECF No. 213-5) ¶12.
10
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any other Aspen counsel was serving as her lawyer. She called Mr. Bell’s office seeking
representation because she wanted to join in a lawsuit against her employer and others
concerning conditions at Central Park Towers, where she works. That put her in a position
adverse to Aspen, which is inconsistent with her agreeing to be represented by Aspen’s counsel.
Aspen agrees for the sake of this motion that “Ms. Broadus was not personally represented by
any attorney during these two phone calls.”35
Having concluded that as of September 19 or 20, 2018, Ms. Broadus did not consider
herself to be represented and Mr. Bell did not know that Ms. Broadus is a constituent of Aspen
for purposes of Rule 4.2, the Court finds no violation of Rule 4.2 occurred.36
July 2019 Meeting
Aspen does not separately address Mr. Bell’s meeting with Ms. Broadus and Mr.
Dandurand. Plaintiffs assert no violation occurred in that meeting because it was arranged
through Ms. Broadus’s counsel with her consent, and her counsel also consented to and was
present for the meeting. According to Plaintiffs, Comment 7 specifically contemplates and
makes permissible the meeting Mr. Bell requested through the following language: “If a
35
ECF No. 230 at 2.
36
Because the Court has concluded that no violation occurred, it is unnecessary to address the
referral to Mr. Dandurand in the September 20 conversation between Ms. Bell and Ms. Broadus.
Although Aspen refers to it as a “bad faith referral,” ECF No. 230 at 7, 8, the record does not
support that characterization. As Mr. Bell explained, he was immediately aware that Ms.
Broadus could not be a putative class member because the class definition excludes employees of
Defendants. See ECF No. 204 ¶150. When he learned that Ms. Broadus potentially had her own
claims against Aspen, he directed Ms. Bell to refer Ms. Broadus to an attorney who could
represent her in her claims against Aspen. The Court finds Mr. Bell did not act in bad faith.
Moreover, the September conversations arguably were not about the subject of Mr. Bell’s
representation of Plaintiffs. But as with the referral, the Court need not decide this issue because
the Court has concluded that no violation occurred.
11
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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.”37 Thus,
Plaintiffs argue, even if the Court found Ms. Broadus to be a constituent of Aspen, Mr. Bell did
not violate Rule 4.2 because Mr. Dandurand consented to the communication. Neither side has
provided Kansas law on this issue, but Plaintiffs cite a California Court of Appeals case which
held that ex parte contacts with current directors were permissible because the directors retained
their own counsel who consented to the communications.38
Plaintiffs urge the Court to adopt the following rationale:
When an employee has private counsel, that attorney is better able than the
organization’s attorney to determine whether the employee’s interests are better
served by speaking with another attorney or by silence. If the employee’s private
attorney determines that the employee’s best interests dictate that her client speak
with another attorney, that private attorney need not obtain the blessing of the
organization’s attorney before pursuing that course.39
The Court finds this reasoning persuasive and not inconsistent with Kansas law. The
leading case in this district on the issue of whether counsel violates Rule 4.2 by having ex parte
communications with another party’s employee is Hammond v. City of Junction City, Kansas,
167 F. Supp. 2d 1271 (D. Kan. 2001). In Hammond, a putative class action alleging class-wide
employment discrimination, Mr. Hope, the City’s Director of Human Relations, attempted to
contact plaintiffs’ counsel Brown. Mr. Brown did not initially return the call because he knew
Mr. Hope worked in the City’s Human Resources Department and he could not determine
37
Kan. S. Ct. Rule 226 at Rule 4.2 cmt. 7.
38
La Jolla Cove Motel & Hotel Apts., Inc. v. Superior Court, 121 Cal. App. 4th 773 (Cal. App.
2004). See also Edwards v. Mass. Bay Transp. Auth., No. 99-0458-F, 2000 WL 1786326 (Mass.
Superior Ct. Dec. 7, 2000) (interview of defendant’s employee, who had retained her own
counsel, without notice to defendant not sanctionable).
39
Edwards, 2000 WL 1786326 at *7.
12
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whether Mr. Hope was a managerial employee. Mr. Hope called again and asked Mr. Brown if
he would represent him in a race discrimination case he wanted to bring against the City. Mr.
Brown explained his representation of the named plaintiff in the existing case and said if the case
became certified as a class action, Mr. Hope might be a member of the class. The two discussed
options and Mr. Hope professed his awareness of the potential conflict of interest.
After hearing Mr. Hope’s explanation of his job responsibilities and his reporting and
supervisory chain, Mr. Brown concluded Mr. Hope did not have managerial responsibilities on
behalf of the City, and that he was not an employee within the scope of the “managing-speaking
agent” test.40 When they met in person, it became clear to Mr. Brown that Mr. Hope was
seeking representation as an individual and as a potential class representative. Mr. Brown
accepted the representation, and in a telephone voicemail message advised defense counsel he
had been retained to assert Mr. Hope’s claims of individual discrimination and was also
considering him as an additional class representative. Defense counsel objected to Mr. Hope
being named a class representative.
In subsequent meetings with Mr. Hope, Mr. Brown learned that Mr. Hope had been
actively involved in preparing the City’s discovery responses in the putative class action, and Mr.
Hope also told him of some alleged document shredding by City employees.
40
167 F. Supp. 2d at 1283-84. “An employee has ‘speaking authority’ if the employee could
bind the organization in a legal evidentiary sense. . . . [The] inquiry is twofold: (1) does the
employee have managerial authority over at least some of the issues in the underlying litigation;
and (2) did the employee make a statement, during the existence of the employment relationship,
concerning a matter within the scope of the employment.” Id. at 1284 (internal citations
omitted). Aspen argues that Ms. Broadus has speaking authority. But because the Court
concludes that Aspen has not demonstrated her managerial authority, the Court need not consider
whether she has speaking authority.
13
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The City moved for a protective order to prevent additional ex parte contacts and sought
to disqualify Mr. Brown from further representation in the putative class action. Magistrate
Judge Waxse conducted a hearing and issued a memorandum and order, holding that Mr. Hope
both had managerial responsibilities and “speaking authority” to bind the City. The list of his
responsibilities is lengthy and includes the authority to make hiring decisions for the Human
Resources Department, managing that Department, sitting on various hiring panels and making
hiring recommendations to various City hiring authorities, investigating internal discrimination
and harassment complaints brought by City employees, and more. Mr. Hope had also made
statements during his employment with the City concerning matters within the scope of his
employment. Finally, Mr. Hope had discussed with Mr. Brown allegations of discrimination
involving minority employees who worked for the City, alleged shredding of documents, and the
City’s document production. Based on these findings, Judge Waxse concluded that Mr. Brown
had violated Rule 4.2 and ordered him disqualified from the case.
The facts of this case are far different from those in Hammond. Not only did the witness
have multiple managerial responsibilities over the precise issues for which his employer faced
possible liability, but the same lawyer represented both the putative class action plaintiffs and the
witness. Here, Aspen has not demonstrated that Ms. Broadus was its constituent, and Mr. Bell
does not represent Ms. Broadus. Knowing he was precluded from doing so, he referred her to
another law firm. The Court finds under the specific circumstances here, Mr. Bell did not violate
Rule 4.2 by meeting with Ms. Broadus and Mr. Dandurand on July 19, 2019.
The Court is troubled, however, by Mr. Bell’s meeting with Ms. Broadus and Mr.
Dandurand. This meeting is especially troubling given that the only attorney Mr. Bell suggested
as a referral was Mr. Dandurand.. Even though the Court has found the July meeting was not a
14
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violation of the Rules of Professional Conduct, the much better course would have been for Mr.
Bell to arrange with Mr. Dandurand to take Ms. Broadus’s deposition, at which counsel for all
parties could be present and participate. Aspen’s counsel agreed during the hearing that a
deposition would likely have alleviated his concerns, or at least would have significantly reduced
the impact. When the Court raised the issue with Mr. Bell, he stated that if he had to do it all
over again, he would have done just that. Although he believed Ms. Broadus to be a nonmanagerial employee with her own attorney representing her in claims against Aspen, he
acknowledges perhaps he should have deposed instead of interviewing her. The Court is
satisfied that Mr. Bell understands the need to diligently adhere to his ethical obligations and the
Rules of Professional Conduct in future dealings with witnesses.
IT IS THEREFORE ORDERED that the Motion for Sanctions filed by Defendant
Aspen Companies Management, LLC (ECF No. 212) is DENIED.
IT IS SO ORDERED.
Dated this 9th day of September, 2019 at Kansas City, Kansas.
Teresa J. James
U. S. Magistrate Judge
15
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