Kear v. Kohl's Department Stores, Inc.

Filing 21

MEMORANDUM AND ORDER denying 17 Motion for Reconsideration re 16 Order on Motion to Appear Pro Hac Vice. Signed by Magistrate Judge Kenneth G. Gale on 11/6/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TIFFANY KEAR,

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Plaintiff,
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vs.
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KOHL’S DEPARTMENT STORES, INC., )
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Defendants.
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Case No. 12-1235-JAR-KGG

ORDER DENYING MOTION FOR RECONSIDERATION OF
ORDER GRANTING MOTION TO APPEAR PRO HAC VICE
Before the Court is Defendant’s motion (Doc. 17) asking for reconsideration
of this Court’s Order (Doc. 16) granting Plaintiff’s motion to admit attorney Caryn
Markowitz Groedel pro hac vice. (Doc. 16). Defendant correctly observes that the
Court routinely grants such motions without waiting for the customary response
time if the application is complaint with the Court’s rule (D. Kan. Rule 83.5.4) for
an appearance of attorney for a particular case. It is appropriate, therefore, for the
Court to consider an opposing party’s objections presented as a motion for
reconsideration, because the party did not have an opportunity to object to the
original motion. However, upon consideration of Defendant’s motion, the Court
denies the motion for reconsideration.

Defendant does not claim in its motion that attorney Groedel has failed to
comply with this Court’s requirements for admission, or that she is otherwise
unqualified under this Court’s rules or those of her home bar. Rather, Defendant
complains that attorney Groedel, by ghostwriting Plaintiff’s original pro se
complaint without disclosure of her involvement, violated various ethical rules of
the Kansas Supreme Court, adopted by this Court by reference in D. Kan. Rule
83.6.1. Specifically, Defendant points to Kansas Bar Association Legal Ethics
Opinion No. 09-01. This non-binding opinion of the KBA Ethics Advisory
Opinion Committee considers the conduct of ghostwriting pleadings in light of
several ethical rules, and concludes that although no rule expressly prohibits that
practice, a lawyer doing so must write “Prepared with Assistance of Counsel” on
the pleadings. Defendant claims that attorney Groedel’s failure to do so violated
this Court’s ethical rules and that this Court should exercise its discretion to deny
her permission to appear in this Court.
The Kansas ethical rules do not expressly prohibit the practice of
ghostwriting pleadings without disclosure. Notably, the KBA opinion expressly
disagrees with American Bar Association’s Formal Opinion 07-446 on the same
subject. Although the KBA opinion is advisory, there is evidence that the Kansas
Supreme Court is in accord in its District Court Rule 115A (applicable in state
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court) covering limited representation which requires a similar disclosure for
pleadings filed pro se but written by an attorney. This Court has previously
disapproved the practice of undisclosed ghostwriting. Wesley v. John Stein Buick,
Inc. 897 F.Supp. 884 (D. Kan. 1997). The Courts have generally expressed
concerns about the practice as it relates to the ethical requirement of candor to the
tribunal, the danger of circumvention of the requirement of Fed.R.Civ.P. 11, and
the effect of applying more generous interpretive standards to apparent, but not
actual, pro se pleadings. See Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001).
Because of these considerations, the Court rejects Plaintiff’s argument that the
concern is limited to the provision of “unbundled services.” The Court concludes
that the practice followed by counsel in this case should not be condoned.
The sanction requested by the Defendant, however, is unwarranted. A direct
reading of the Kansas rules may leave counsel, particularly one licensed in another
jurisdiction, unclear about the practice. The direct disagreement between the
Kansas Bar and the American Bar aggravates the ambiguity. There is no evidence
that attorney Groedel has harmed her client in this instance. Any failure of candor
created by the original filing has been mitigated as to both Defendant and the Court
by her subsequent appearance and the disclosures made in response to this motion.
The Court finds that exercising its discretion to deprive Plaintiff of her chosen
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counsel would be unjustified.
Defendant’s Motion for Reconsideration (Doc. 17) is, therefore, DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 6th day of November, 2012.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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