Darnell v. Merchant et al
MEMORANDUM AND ORDER denying 12 Petitioner Darnell's Motion to Disqualify Counsel. Signed by Magistrate Judge Teresa J. James on 6/16/2017. (byk)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN MERCHANT, SHERIFF,
BROWN COUNTY, KANSAS, and
KICKAPOO TRIBE IN KANSAS,
Case No. 17-cv-3063-EFM-TJJ
MEMORANDUM AND ORDER
This case involves Petitioner Bobbi Darnell’s petition for writ of habeas corpus (the
“Petition”) for relief from her Kickapoo Tribal District Court (the “Tribal Court”) detention,
conviction and sentencing. The matter currently pending before the Court is Darnell’s Motion to
Disqualify Counsel and Law Firm (ECF No. 12). Darnell requests that attorney Thomas Lemon be
disqualified from representing Respondent Kickapoo Tribe in Kansas in this case, because he was
the Special Prosecutor who tried the case against Darnell before the Tribal Court and he will be a
necessary witness regarding the alleged improprieties and due process violations that are the basis
for the petition for writ of habeas corpus. For the reasons set out below, the Court finds attorney
Lemon is not likely to be a necessary witness in this case and therefore need not be disqualified
from representing the Kickapoo Tribe. The motion will therefore be denied.
Darnell was convicted on March 9, 2017 in two cases before the Tribal Court of tampering
with records, fraudulent handling of recordable instruments, and misuse of tribal funds. Although
initially released on a cash bond pending sentencing, Darnell was subsequently arrested and has
been incarcerated in the Brown County, Kansas Jail since March 31, 2017. On April 14, 2017,
Darnell filed her petition for a writ of habeas corpus (the “Petition”). On April 24, 2017, Darnell
was sentenced to 18 months and 22 months incarceration, to run concurrently, on her conviction in
the two cases. On May 4, 2017, Darnell filed a supplement to her Petition. In her Petition and
supplement, Darnell alleges that the Tribal Court committed a number of errors and improprieties
with regard to her trial, sentencing, and incarceration, and that she was deprived of her liberty
without due process of law as required under the Indian Civil Rights Act.1 Lemon served as
Special Prosecutor for the Kickapoo Tribe in prosecuting Darnell and tried her jury trial that is the
subject of this habeas corpus action.2
Summary of the Parties’ Arguments
Darnell contends that the Court should disqualify Lemon from representing the Kickapoo
Tribe under Kansas Rule of Professional Conduct 3.7 (“KRPC”) because Lemon will be a material
witness in any trial or evidentiary hearings regarding the Petition. Lemon will testify, according to
Darnell, about the contested issues related to Darnell’s prosecution in the Tribal Court. Darnell
also contends that Lemon’s client will not be prejudiced if Lemon is disqualified from representing
The Kickapoo Tribe contends Lemon is not likely to be a necessary witness, and any
testimony he would provide with regard to Darnell’s allegations is not material to the
25 U.S.C. § 1302(a)(8).
The facts set out in this paragraph are taken from Darnell’s Petition (ECF No. 1) and
supplement to the Petition (ECF No. 8).
determination of the issues being litigated in this case. It further argues all of the errors that Darnell
relies upon occurred in open court and there are numerous other witnesses who could provide
testimony, if any, with regard to those issues.
Legal Standard for Disqualification of an Attorney Based upon KRPC 3.7(a) (The
Two sources inform whether a district court should disqualify an attorney.3 “First,
attorneys are bound by the local rules of the court in which they appear. . . . Second, because
motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of
the parties, they are decided by applying standards developed under federal law.”4
The District of Kansas has adopted the Kansas Rules of Professional Conduct (“KRPC”) as
the “applicable standards of professional conduct” for lawyers appearing in this Court.5 The Court
has the power to disqualify counsel at its discretion based upon these professional standards of
ethics.6 Because disqualification affects more than merely the attorney in question, the court must
satisfy itself that this blunt remedy serves the purposes behind the ethical rule in question and that
the motion is not being used as directed litigation strategy.7
A motion to disqualify must be decided on its own facts, and the court must carefully
balance the interest in protecting the integrity of the judicial process against the right of a party
United States v. Stiger, 413 F.3d 1185, 1195 (10th Cir. 2005).
Id. (quoting Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1383 (10th Cir. 1994)).
D. Kan. Rule 83.6.1(a).
E.E.O.C. v. Orson H. Gygi Co., Inc., 749 F.2d 620, 621 (10th Cir. 1984); Biocore Med.
Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660, 664 (D. Kan. 1998).
Koch v. Koch Indus., 798 F. Supp. 1525, 1530–31 (D. Kan. 1992).
to have the counsel of its choice.8 In deciding a motion to disqualify counsel, the trial court
balances several competing considerations, including the privacy of the attorney-client
relationship, the prerogative of a party to choose counsel, and the hardships that disqualification
imposes on the parties and the entire judicial process.9 “The right to counsel of choice is an
important one subject to override for compelling reasons. Even so, this right is secondary in
importance to preserving the integrity of the judicial process, maintaining the public confidence in
the legal system and enforcing the ethical standards of professional conduct.”10 A motion to
disqualify counsel deserves serious, conscientious, and conservative treatment.11
Kansas Rule of Professional Conduct (“KRPC”) 3.7, upon which Darnell relies as the basis
for her request to disqualify Lemon, provides:
(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be
a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as an advocate in a trial in which another lawyer in the
lawyer’s firm is likely to be called as a witness unless precluded from doing so by
Kelling v. Bridgestone/Firestone, Inc., No. 93-1319-FGT, 1994 WL 723958, at *10 (D.
Kan. Oct. 17, 1994); Am. Plastic Equip., Inc. v. Toytrackerz, LLC, No. 07-2253-DJW, 2009 WL
902424, at *5 (D. Kan. Mar. 31, 2009).
Nat’l Bank of Andover, N.A. v. Aero Standard Tooling, Inc., 30 Kan. App. 2d 784, 791,
49 P.3d 547, 553 (2002).
Koch, 798 F. Supp. at 1530 n.2.
Id. at 1530.
Rule 1.7 or Rule 1.9.12
One of the strongest rationales for this lawyer-witness rule is to prevent jury confusion
over the separate roles of an advocate and a witness.13 This rationale is that combining the roles of
advocate and witness has the potential to prejudice the opposing party because a jury may be
unclear whether an attorney asked to testify is making a statement that should be taken as proof or
as an analysis of the proof.14
Under Kansas law, KRPC 3.7(a) “requires the opposing party to bear a higher burden on a
disqualification motion, permits the court to delay ruling until it can be determined that no other
witness could testify and obviates disqualification if the lawyer’s testimony is merely
cumulative.”15 The District of Kansas uses the so-called Smithson test in determining whether
potential testimony is necessary and whether counsel should be disqualified based on KRPC 3.7.16
Under the Smithson test, a motion for disqualification should not be granted unless: (a) the attorney
would give evidence that is material to the issue being litigated, (b) such evidence is unobtainable
from other sources, and (c) the testimony is prejudicial or potentially prejudicial to the testifying
See Schneider v. Citimortgage, Inc., No. 13-4094-SAC, 2014 WL 6632939, at *2 (D.
Kan. Nov. 21, 2014); Lowe v. Experian, 328 F. Supp. 2d 1122, 1126 (D. Kan. 2004).
Chapman Eng’rs, Inc. v. Natural Gas Sales Co., 766 F. Supp. 949, 957 (D. Kan. 1991)
(explaining rationale for Model Rule of Professional Conduct 3.7(a) upon which the KRPC 3.7(a)
United States v. Becker, No. 10-40077-02-JAR, 2011 WL 93759, at *3 (D. Kan. Jan. 11,
2011) (quoting ABA/BNA Lawyer’s Manual on Prof. Conduct § 61.507).
See Schneider, 2014 WL 6632939, at *2 (citing LeaseAmerica Corp. v. Stewart, 19 Kan.
App. 2d 740, 751, 876 P.2d 184, 192 (1994) (adopting Smithson factors).
attorney’s client.17 Disqualification will not be granted unless all three of the Smithson factors are
Whether Lemon Should be Disqualified as a Necessary Witness Based on his
Potential Testimony Regarding Darnell’s Habeas Corpus Allegations
Whether Lemon’s Potential Testimony is Necessary
Darnell lists five alleged errors in the proceedings against her that Lemon either witnessed
or participated in:
1. Lemon touted the presentence investigation report prepared by a tribal parole
officer as “well written” even though it recommended an illegal prison sentence
and a non-existent BIA prison.
2. Lemon computed and presented an 18-year prison sentence for Darnell to the
trial judge, knowing that the sentence was wrong and based on a typographical
error in the tribal ordinance.
3. Lemon heard the tribal judge ask a court clerk if the judge should find one of
Darnell’s witnesses in contempt of court.
4. Lemon saw the tribal judge improperly sorting through names of prospective
jurors during jury selection rather than using the required method of random
5. Lemon saw or should have seen the tribe’s general counsel sitting next to him
Id., See also Smithson v. U.S. Fid. & Guar. Co., 411 S.E.2d 850, 856 (W. Va. 1991).
Smithson, 411 S.E.2d at 856.
mouthing answers to a prosecution witness under cross-examination.19
The Court’s analysis will focus on whether testimony by Lemon regarding these five
allegations would satisfy the Smithson test. If Lemon’s potential testimony regarding each of these
five allegations (referred to below as Allegation 1, 2, 3, 4, and 5) fails to meet any one of the three
Smithson factors, he need not be disqualified.
Allegation 1 relates to Lemon’s comments about the presentence investigation report
prepared by a tribal probation officer. According to Darnell, Lemon stated that the report should be
adopted as “well written.” Darnell argues that Lemon made this comment despite the report
recommending an “illegal prison sentence” of 216 months in a “non-existent BIA prison.” The
Court finds this allegation fails the first factor of the Smithson test. Any testimony given by Lemon
regarding this allegation would be immaterial to the habeas corpus petition being litigated. As
discussed more fully with regard to Allegation 2 below, the inaccurate 216-month prison sentence
recommended by the report was not adopted by the Tribal Court. And, Darnell provides no support
for her assertion that the presentence investigation report recommended a non-existent BIA
prison.20Any statement by Lemon about his opinion regarding the quality of the report has no
bearing on whether Petitioner’s constitutional rights were violated.
Allegation 2 seeks relief based upon the allegation that Lemon computed an incorrect
216-month (as opposed to 18-month) prison sentence and knowingly presented this information to
the Tribal Court. Again, the Court finds this information is immaterial to the issues being litigated
Pet’r Mem. in Supp. of Mot. to Disqualify Counsel and Law Firm 2, ECF No. 12-1.
The Kickapoo Tribe takes issue with this assertion in its response. Darnell did not file a
because the incorrect sentence was never imposed. In addition, when Darnell’s counsel raised this
issue with the Tribal Court, Lemon acknowledged the typographical error in the applicable
ordinance and agreed it really meant six months rather than 96 months as the prison sentence
which would be applicable to Count I in both criminal cases against Darnell.21 Notably, the
sentence imposed by the Tribal Court incorporated the corrected six months sentence for Count I
of both cases, with a total sentence of 18 months on all counts (multiple counts running
concurrently), rather than the erroneous 216 month sentence.22 Any testimony by Lemon
regarding his personal knowledge that the ordinance contained the typographical error from which
the 216-month recommended sentence was based is immaterial to the issues presented and offers
nothing to support Darnell’s claim that her constitutional due process rights were violated. This
allegation therefore fails on the first (materiality) factor of the Smithson test.
Allegation 3 contends that Lemon heard the tribal judge ask a court clerk if the judge
should find a witness in contempt of court. The Kickapoo Tribe responds “if such a statement was
made, it was made in open Court and recorded,” thus suggesting this allegation could be verified
from sources other than Lemon. If, as Darnell alleges, this conduct took place in open court and
Lemon could hear it, the court record as well as other persons present in the courtroom at the time
would also presumably be able to provide this evidence. Darnell has not rebutted this argument.23
ECF No. 8 at 5–6.
Id. at 3.
Darnell argued in the memorandum in support of her motion that Lemon will be a
material witness regarding her petition for habeas corpus, that the integrity of the judicial process
dictates that Lemon be disqualified from representing the Kickapoo Tribe in this proceeding, and
that the Kickapoo Tribe will not be prejudiced if Lemon is disqualified from representing the tribe
because Vincent Cox is another attorney who has entered his appearance on behalf of the tribe in
Accordingly, the Court finds Lemon is therefore not a necessary witness regarding this allegation.
Lemon’s potential testimony is likely to be merely cumulative of other witnesses’ testimony.
In Allegation 4, Darnell alleges that Lemon observed the tribal judge improperly selecting
prospective jurors during the jury selection process. Like Allegation 3, this alleged conduct would
have taken place in open court and evidence of it is obtainable from either the court record or other
witnesses who were present in the courtroom during jury selection. Indeed, when Darnell’s
counsel objected to the jury selection process at the beginning of trial, he noted that “a lot of people
in the courtroom saw” the alleged improprieties.24 Lemon is therefore not a necessary witness
regarding this allegation and any testimony given by Lemon would likely be only cumulative.
Finally, with respect to Allegation 5, Darnell alleges that Lemon saw or should have seen
the Kickapoo Tribe’s general counsel mouthing answers to a prosecution witness under
cross-examination. Yet again, this conduct could be verified from persons other than Lemon.
Darnell acknowledges this in her Petition, stating that this behavior by the tribal attorney “was
observed by others in the courtroom.”25 Lemon’s potential testimony would again be merely
Because none of the testimony regarding allegations made by Darnell would satisfy the
Smithson test, the Court finds that Lemon is not likely to be a necessary witness for the purposes of
this case. However, Darnell failed altogether in her memorandum to address the second of the
Smithson factors, that is whether Lemon would provide evidence that is unobtainable from other
sources. Nor did she file a reply to rebut the tribe’s arguments in its response that evidence
regarding Allegation 3 is available from sources other than Lemon.
ECF No. 15-1 at 4.
ECF No. 1 at 8.
this habeas corpus proceeding, and the motion to disqualify counsel should be denied on this basis.
Having found that Lemon is not a necessary witness under KRPC 3.7(a), the Court need not
address the exceptions under KRPC 3.7(a)(1), (2), or (3). Similarly, since the Court finds that
Lemon is not disqualified the Court need not address the request that his firm be disqualified.
The Primary Rationale for KRPC 3.7(a) is Not Applicable to Non-Jury
In addition to the Court’s finding that Lemon is not likely to be a necessary witness, the
Court further notes that the primary purpose of KRPC 3.7(a) would not be served by
disqualification of Lemon in this case because of the nature of these non-jury proceedings. The
primary rationale behind KRPC 3.7(a) is to prevent potential jury confusion in the unusual
circumstance where an advocate for a client would be called on to testify.26 Because a jury is not
present for pretrial proceedings, the rule does not disqualify an attorney from participating in those
activities.27 Similarly, the rule should not apply to non-jury proceedings, as the underlying policy
concerns necessitating the rule (namely, avoiding jury confusion) would not apply.28 Though
evidentiary hearings have sometimes offered an exception to this general policy, typically such
exceptions are only made in instances where the evidence to be collected during the evidentiary
hearing is to be presented to a jury at trial.29
See Schneider, 2014 WL 6632939, at *2; Lowe, 328 F. Supp. 2d at 1126 (emphasis
Am. Plastic Equip., 2009 WL 902424, at *6.
See, e.g., Crowe v. Smith, 151 F.3d 217, 233–34 (5th Cir. 1998)(affirming lower court
decision to deny motion to disqualify filed in a bench trial).
See Lowe, 328 F. Supp. 2d at 1127.
The Court rec
cognizes tha any hearing on Darnell petition f writ of ha
abeas corpus will
be before a judge, the
ting the need to avoid jur confusion If Lemon were require to
testify, th Court has no doubt th District Ju
udge Melgre who will hear argume on the ha
etition, could distinguish between Le
emon’s role as advocate for the Kick
kapoo Tribe and
his role as a potential witness.
The Court fin attorney Lemon’s rep
presentation of the Kick
kapoo Tribe i this case s
not be precluded base on Darnel argumen that he is “
“likely to be a necessary witness”30 i her
eding. Becau his poten
ntial testimon is either n material or is obtaina
from othe sources, th Court find that Thom Lemon a his firm shall not be disqualified from
ting the Kick
kapoo Tribe in this case.
IT IS THER
RDERED THAT Petiti oner’s Motio to Disqua
alify Counse and
Law Firm (ECF No. 12) is DENI
IT IS SO ORD
Dated June 16 2017, at Kansas City, Kansas.
Teresa J. Ja
U. S. Magi
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