Marla Ubaldo Ramos et al v. ONEOK Rockies Midstream, L.L.C. et al

Filing 68

MEMORANDUM AND ORDER denying 60 Motion leave to communicate with plaintiff. See text of order for details. Signed by Magistrate Judge Angel D. Mitchell on 9/14/2020. (bh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ARNULFO RAMOS RIOS,
Plaintiff,
v.

Case No. 19-2602-JWB-ADM

REX RAMAGE, ET AL.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on Tony L. Atterbury and Jay Sizemore’s (“Movants”)
Motion for Leave to Communicate with Plaintiff. (ECF 60.)1 These attorneys of record for
Plaintiff Arnulfo Ramos Rios seek a court order authorizing them to contact Rios to confirm
whether he seeks to terminate their relationship.

Attorney Matthew L. Bretz entered his

appearance on Rios’s behalf, and he opposes the motion on the grounds that Rios clearly and
unequivocally terminated Movants’ representation. For the reasons set forth below, Movants’
motion is denied. Rios discharged Movants as his attorneys, and they have not invoked any
applicable procedural rule that would support granting their requested relief.2 The issues presented
are more properly directed to the Kansas Disciplinary Administrator’s Office.

Movants’ request for oral argument is denied. The record is clear and oral argument would
not materially aid the undersigned in resolving this dispute.
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Because Movants are not entitled to the relief they seek, the court rules without awaiting
their reply.
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I.

BACKGROUND
This case arises from an auto collision on December 21, 2018, in which Rios was seriously

injured. At the time, he was a minor. His natural mother and legal guardian, Marla Ubaldo Ramos,
retained Movants to represent Rios. Rios settled his claims against the driver of the vehicle in
which he was riding as a passenger. On October 4, 2019, Rios filed this lawsuit asserting claims
against the driver of the other vehicle and his employer.
In January of 2020, Rios reached the age of majority. On August 11, Bretz emailed
Movants to tell them that Rios had retained Bretz’s law firm to prosecute this case. (ECF 60-1.)
Bretz attached an Attorney File Release Authorization signed by Rios that refers to Movants’ law
firm as his “former attorney” and authorizes the law firm to transfer his files and records to Bretz.
The form concludes, “I further direct that you not contact me further in any manner and that you
have no further contact with any of the insurance companies involved in this matter.” (ECF 61-1,
at 2.) The next day, Bretz entered his appearance. (ECF 59.)
Movants have not yet withdrawn as counsel of record. They point out that Rios suffered a
severe traumatic brain injury in the automobile accident, that they are holding settlement funds in
trust that are subject to liens, that they have devoted significant resources to litigating and settling
Rios’s claims, and that Bretz falsely purported to take over case from Atterbury on a prior occasion.
Movants contend that, in view of these considerations, the boilerplate Attorney File Release
Authorization is not sufficiently clear and unequivocal that Rios intended to terminate Movants’
representation. They therefore believe that “they have a duty to [Rios] to inquire further and
confirm his understanding of the situation and direction to them.” (ECF 60, at 4.) But they contend
that Bretz’s threats of ethics complaints against them has prevented them from meaningfully
investigating this issue. They therefore seek a court order granting them leave to communicate

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directly with Rios because they believe they have a duty to make sure that Rios understands and
intends for them to withdraw as counsel of record.
II.

KRPC 4.2 PROHIBITS THE REQUESTED COMMUNICATION
This court’s local rules adopt the Kansas Rules of Professional Conduct (“KRPC”). D.

KAN. RULE 83.6.1(a). KRPC 4.2 provides that, “[i]n 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.” KRPC 4.2. Movants seek relief pursuant to
Comment 6 to KRPC 4.2, which provides as follows:
A lawyer who is uncertain whether a communication with a
represented person is permissible may seek a court order. A lawyer
may also seek a court order in exceptional circumstances to
authorize a communication that would otherwise be prohibited by
this Rule, for example, where communication with a person
represented by counsel is necessary to avoid reasonably certain
injury.
In other words, a lawyer may seek a court order authorizing communication with a person who is
known to be represented by counsel either (1) to clarify whether the communication is allowed, or
(2) in exceptional circumstances where the communication would otherwise be prohibited.
A.

KRPC 4.2 Clearly Prohibits Movants From Communicating With Rios

Movants are not entitled to relief on the first of these grounds—that is, to clarify whether
the communication is allowed. It is not. By its plain terms, KRPC 4.2 prohibits a lawyer
(Movants) from communicating about the subject of the representation (this lawsuit) with a person
(Rios) the lawyer knows to be represented by another lawyer in the matter (Bretz). Rios clearly
and unequivocally discharged Movants via the Attorney File Release Authorization. Furthermore,
in response to Movants’ argument that this boilerplate form was somehow insufficient, Bretz’s
response brief included a further statement from Rios in which he states that he “decided to switch
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attorneys on my own free will, I was not obligated or confused,” and then he briefly explains the
reasons why he decided to switch attorneys. As such, Movants are required to withdraw from
representing him in this action. See KRPC 1.16(a)(3) (“a lawyer . . . shall withdraw from the
representation of a client if . . . the lawyer is discharged”).
Ethics opinions that have considered analogous rules have uniformly held that this rule
prohibits a lawyer who has been discharged from contacting a former client to discuss matters
relating to the prior representation without the successor counsel’s consent. See Rhode Island
Supreme Court Ethics Advisory Panel, Op. No. 2002-04 (2002) (when successor counsel writes to
original lawyer asking for file and encloses signed request from client, original lawyer may not
contact former client without successor’s permission); Illinois State Bar Assoc. Op. No. 96-09
(1997) (discharged lawyer seeking fees from former client is restricted in doing so by Rule 4.2).
There may be limited exceptions to this rule—for example, to seek payment of unpaid fees and
expenses where there is no reason to believe the successor counsel is representing the client with
respect to payment of those fees. See Prof’l Ethics Committee, New York City Bar Ass’n,
Contacting Former Clients Represented by Successor Counsel, Formal Op. No. 2011-01 (2011).
But no such exception applies to allow Movants’ requested communication here. Movants, by
their own admission, seek to exercise their “duty of diligence” to explore whether Rios really
understands and wants to discharge them and have them withdraw as counsel of record. This
violates the very purpose of the Rule 4.2, which is to protect “a person who has chosen to be
represented by a lawyer in a matter against possible overreaching by other lawyers who are
participating in the matter” and “interference by those lawyers with the client-lawyer relationship.”
KRPC 4.2, cmt. 1; see also Illinois State Bar Assoc. Op. No. 96-09 (1997) (prohibiting
communication initiated by the discharged lawyer that appeared “motivated by a desire on his part

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to either protect his claim for fees and expenses and/or to convince the client to allow him to
resume handling the files”).
B.

Movants Have Not Demonstrated That Exceptional Circumstances Exist to
Warrant Their Requested Communication

The court turns, then, to the second avenue for relief set forth in Comment 6 to KRPC 4.2,
which is whether Movants have shown that exceptional circumstances exist that would warrant the

court authorizing their otherwise-prohibited communication with Rios. No such exceptional
circumstances exist here, and certainly none sufficient to override the purpose of KRPC 4.2.
The overriding thrust of Movants’ arguments is to question whether Rios really discharged
them because they believe his decision is suspicious. To the extent Movants are implying that
Bretz committed some type of ethical violation, a party would typically raise this issue via a motion
to disqualify counsel. See, e.g., Clark v. Newman Univ., Inc., No. 19-1033-JWB-GEB, 2020 WL

729737, at *5 (D. Kan. Feb. 13, 2020) (granting in part and denying in part plaintiff’s motion to
disqualify defense counsel’s law firm); Riley v. PK Management, LLC, No. 18-cv-2337-KHV-TJJ,
2019 WL 4256367, at *1 (D. Kan. Sept. 9, 2019) (denying motion to disqualify counsel for ethics
violation). But that remedy is unavailable here for at least two reasons.
First, such motions are typically made to disqualify opposing counsel. In contrast, here,
Bretz has replaced Movants as counsel. As such, as explained above, the ethics rules require

Movants to withdraw as counsel of record and not contact Rios about this lawsuit.
Second, this court’s role in supervising attorneys is primarily concerned with whether the
alleged misconduct threatens to taint the present lawsuit with a serious ethical violation. See
Biocore Med. Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660, 664 (D. Kan. 1998). Movants’ vague
and unsupported allegations of “suspicious” circumstances do not persuade the court that any
ethical violation is afoot that threatens to taint the judicial process in this case. Bretz is a licensed

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attorney and officer of this court who represented in a court filing that Rios hired him and
terminated his relationship with Movants, and Bretz submitted a signed statement from Rios to
that effect. (ECF 61-14, at 1.) Movants’ arguments amount to speculation that Rios may not
understand the consequences of his actions. But, critically, Rios is a legal adult who has not been
declared to lack capacity. He is therefore free to select the lawyer of his choice and to discharge
Movants at any time, with or without cause. See KRPC 1.16, cmt. 4.
The other procedural vehicle that is typically invoked to clarify whether an attorney may
contact someone who is known to be represented by counsel occurs in the scope of discovery.
Such issues may arise concerning counsel’s communications with fact witnesses who happen to
be class members or the opposing party’s employees, among other situations directly related to
prosecuting or defending a case. See, e,g., RESTATEMENT (THIRD)

OF THE

LAW GOVERNING

LAWYERS § 99 (2000) (explaining that a court may issue an order permitting defense counsel to
have limited contact with class members or appoint a psychiatrist designated by the prosecutor to
conduct a pretrial evaluation of a represented defendant).

For example, parties may seek

clarification from the court as to whether counsel may attempt to gather evidence via ex parte
interviews of former employees of an organization that is represented by counsel in the action.
See, e.g., Aiken v. Business & Industry Health Group, Inc., 885 F. Supp. 1474, 1474-80 (D. Kan.
1995) (denying motion for a protective order to ban such contact); Hammond v. City of Junction
City, 167 F. Supp. 2d 1271, 1283 (D. Kan. 2001) (granting motion for protective order prohibiting
plaintiff’s counsel’s contact with a municipal defendant’s HR director); see also, e.g., Kaveney v.
Murphy, 97 F. Supp. 2d 88 (D. Mass. 2000) (ruling on plaintiff’s motion for a protective order
permitting counsel to conduct ex parte interviews with certain city police officers). But Movants

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are not seeking to contact Rios in order to take discovery relevant to the claims or defenses in this
case. Instead, they seek to interfere with his counsel of choice.
III.

CONCLUSION
In sum, the court denies Movants’ motion because KRPC 4.2 clearly prohibits them from

contacting Rios. Furthermore, they have not invoked any recognized procedural vehicle to
overcome this clear prohibition in KRPC 4.2. Movants and Bretz both state that they have
contacted the Kansas Disciplinary Administrator’s Office about each others’ conduct. The court
agrees that this is the more appropriate avenue to address their respective concerns, which also
raise issues related to a trust fund Movants administer for Rios and the attorneys’ feud over a
separate client.

“This Court generally defers ethical issues to the appropriate disciplinary

administrator except in those cases where the challenged conduct threatens to taint the judicial
process.” Am. Plastic Equip., Inc. v. Toytrackerz, LLC, No. CIV.A. 07-2253-DJW, 2009 WL
902424, at *8 (D. Kan. Mar. 31, 2009). It is not this court’s role to resolve ancillary disputes
concerning client representation. W. T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976)
(“The business of the court is to dispose of litigation and not to act as a general overseer of the
ethics of those who practice here unless the questioned behavior taints the trial of the cause before
it.”).
IT IS THEREFORE ORDERED that Tony L. Atterbury and Jay Sizemore’s Motion for
Leave to Communicate with Plaintiff (ECF 60) is denied.
IT IS SO ORDERED.
Dated September 14, 2020, at Topeka, Kansas.
s/ Angel D. Mitchell
Angel D. Mitchell
U.S. Magistrate Judge

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