Johnson v. National Association for the Advancement of Colored People et al

Filing 20

ORDER & REASONS. It is ORDERED that Plaintiff's 13 , 17 Motion to Dismiss Counsel is DENIED. It is FURTHER ORDERED that Plaintiff's 19 Motion for Leave to File is DENIED AS MOOT. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WES W.C. JOHNSON

CIVIL ACTION

VERSUS

No.: 17-357

NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF
COLORED PEOPLE, ET AL.

SECTION: “J”(4)

ORDER & REASONS
Before the Court is a Motion to Dismiss Opposing Counsel (R.
Docs.

13,

17)

filed

by

Plaintiff

opposition thereto (R. Doc. 18)

Wes

“W.C.”

Johnson

and

an

filed by Defendants. 1 Having

considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This lawsuit derives from an alleged breach of contract and
deprivation of constitutional rights. Plaintiff alleges that he
filed grievances with the national branch of the NAACP pursuant to
the

NAACP’s

constitution

and

bylaws

seeking

relief

for

inappropriate conduct by elected officers of the New Orleans Branch
of the NAACP (the New Orleans Branch). Rather than investigate his
claims, he alleges that the national branch of the NAACP threatened
to either dissolve its New Orleans Branch or affect Plaintiff’s
membership status to chill litigation. Plaintiff alleges that this

1The National Association of the Advancement of Colored People (“NAACP”),
Cornell William Brooks, Roslyn M. Brock, and Carmen Watkins (collectively,
“Defendants”).

has resulted in difficulties in holding proper and lawful local
elections
alleges

for

that

irregularities

NAACP
the
in

branch

national
the

members.
branch

local

Specifically,

of

the

NAACP

elections

and

allowed

Plaintiff

has

allowed

ineligible

members to run and be elected to NAACP office positions. Plaintiff
argues he has been deprived of his constitutional rights under the
First, Sixth, Seventh, Ninth, and Fourteenth Amendments to the
United States Constitution. Plaintiff asks this Court to force the
national branch of the NAACP to address his complaints as to the
voting

irregularities

and

to

require

that

all

elections

be

rescinded until the proper execution of the NAACP’s constitutional
protections can be administered. Finally, Plaintiff seeks $100,000
in punitive damages to be given to the New Orleans Branch, a
judgment forcing Defendants to reorganize the NAACP’s constitution
to comply with the United States Constitution, and for all costs
incurred.
On May 23, 2017, Plaintiff moved to dismiss Defendants’
counsel. (R. Doc. 16.) In short, Plaintiff argues that if Mr.
Danatus King is permitted to act as defense counsel he will serve
as an “advocate witness,” and because Mr. King is on Plaintiff’s
witness list, he must be disqualified. Defendants oppose the
motion, R. Doc. 18, which is now before the Court on the briefs
and without oral argument.

2

PARTIES’ ARGUMENTS
Plaintiff seeks to dismiss Mr. King because Mr. King has a
close relationship with the national branch of the NAACP and was
allegedly counsel for, and former president of, the New Orleans
Branch. Further, Plaintiff argues that Mr. King was placed on the
Plaintiff’s witness list 2 before Plaintiff realized that Mr. King
would serve as defense counsel in the instant case. Plaintiff
alleges that because of Mr. King’s relationship with the New
Orleans Branch, his role as defense attorney impermissibly sways
Plaintiff’s own witnesses against Plaintiff’s interests. Also,
Plaintiff claims that after discovery, Mr. King may become a
defendant in this case for disrupting NAACP activities. Moreover,
Plaintiff

alleges

that

because

of

Mr.

King’s

knowledge

and

relationships with individuals in the New Orleans Branch, any
discovery would be tainted by Mr. King’s influence. Finally,
Plaintiff argues that Mr. King has served as counsel for the
Secretary of the New Orleans Branch, Ms. Laurene McMillan, and the
New Orleans Branch itself which he alleges creates a conflict of
interest.
In

response,

Defendants

present

three

arguments.

First,

Defendants argue that this case is not yet at trial and Model Rule
3.7 generally prevents conflicted counsel from participating at

2 As of the date of this order, witness lists have not been exchanged nor
produced to the Court. The deadline for witness and exhibit lists is not later
than July 19, 2017. (R. Doc. 15.)

3

trial. Second, Defendants argue that Mr. King is not a necessary
witness to this case. And finally, Defendants argue that the
neither the New Orleans Branch nor Ms. McMillan have been Mr.
King’s clients. Accordingly, Defendants argue that Plaintiff’s
motion should be denied.
DISCUSSION
To

determine

whether

disqualification

of

counsel

is

appropriate, district courts must examine the local rules, the
rules that govern attorneys practicing in the relevant state court,
and

the

America

Professional

Bar

Association’s

Responsibility

(“the

(“ABA”)

Model

Model

Rules”).

CEF

Rules

of

Funding,

L.L.C. v. Sher Garner Cahill Richter Klein & Hilbert, L.L.C., No.
09-6623, 2010 WL 2773116, at *2 (E.D. La. July 9, 2010) (citations
omitted). Courts must not apply these rules “inflexibly” but must
take into account the social interests at stake and the right of
a party to choose its counsel and the right of attorneys to freely
practice their profession. Id. (citing SAS Overseas Consultants v.
Offshore Consultants USA, Ltd., 1998 WL 676992, at *1 (E.D. La.
1998)). In the Eastern District of Louisiana, the relevant local
rules, the Louisiana State bar Association’s Rules of Professional
Conduct, and the Model Rules are identical. 3 Id. Plaintiff bears
the burden of demonstrating disqualification is warranted. In re

3

See also, L.R. 83.2.3, and compare Model Rule 3.7 with Articles of
Incorporation of the Louisiana State Bar Association, Article XVI, Rule 3.7.

4

Duke Invs., 454 B.R. 414, 422 (S.D. Tex. 2011). Model Rule 3.7(a)
provides that “a lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness. . . .” CEF
Funding, 2010 WL 2773116, at *2 (emphasis added) (quoting Model
Rule 3.7(a)). Determining whether disqualification is appropriate
is a delicate procedure particularly when a motion to disqualify
comes at the early stages of the litigation. See Leleux-Thubron v.
Iberia Par. Gov’t, No. 13-0852, 2015 WL 339617, at *8 (W.D. La.
Jan. 23, 2015) (noting that Rule 3.7 “is couched in the future
tense

and

is

therefore

forward-looking

toward

trial-related

violations”). While Model Rule 3.7 states that a lawyer-witness
may be disqualified from acting as an advocate at trial, with some
exceptions, there is precedent for dismissing an attorney from
representation at any stage of the proceedings “where the lawyerwitness’s testimony is likely to be prejudicial to his client.”
See Lange v. Orleans Levee Dist., No. 97-987, 1997 WL 668216, at
*3 (E.D. La. Oct. 23, 1997) (citing Guar. Corp. v. Nat’l Union
Fire Ins. Co., No. 90-2695, 1993 WL 165690 (E.D. La. 1993))
Plaintiff

has

not

met

the

heavy

burden

of

proving

that

disqualification of Mr. King is warranted. See CEF Funding, 2010
WL 2773116, at *2 (noting that a request for disqualification is
reviewed with “fairly strict scrutiny,” and that the party seeking
disqualification

bears

a

“heavy

burden

of

demonstrating

that

disqualification is necessary”). Specifically, Plaintiff has not
5

demonstrated that Mr. King will be a necessary witness at trial,
that his testimony would prejudice his clients, or that he may
become a defendant to this lawsuit. This case stems from the
national branch of the NAACP’s alleged non-compliance with its
internal constitutional procedures and bylaws. While Plaintiff
alleges that this non-compliance was a result of some of Mr. King’s
actions, which led to the alleged deprivation of Plaintiff’s
constitutional
Defendants’

rights, 4

sole

the

counsel

Court

without

is

unwilling

more

to

information.

disqualify
Further,

although Plaintiff alleges that Mr. King’s representation will
lead to an unfair advantage, conflict, or some impropriety in this
litigation,

these

allegations

alone

are

insufficient

to

demonstrate that disqualification is necessary at this stage of
the proceedings. See Fed. Deposit Ins. Corp. v. U.S. Fire Ins.
Co., 50 F.3d 1304, 1316 (5th Cir. 1995) (“[D]isqualificaiton is
unjustified without at least a reasonable possibility that some
identifiable

impropriety

actually

occurred.”).

Finally,

it

is

unclear due to the infancy of this litigation whether Mr. King’s

4

It should be noted that in order to maintain a civil rights action under 42
U.S.C. § 1983, “a plaintiff must show that he has been deprived of a federally
protected right by a person acting ‘under color of state law.’” Dupree v. Mfume,
No. 3-2240, 2003 WL 2247744, at *1 (N.D. Tex. Oct. 20, 2003) (citing 42 U.S.C.
§ 1983; West v. Atkins, 487 U.S. 42, 48 (1988)). Further, the NAACP, as a
private organization, is generally not considered a state actor. Id. In Dupree,
the magistrate dismissed the plaintiff’s lawsuit as frivolous where he alleged
the NAACP deprived him of his constitutional rights by not providing him with
legal representation to challenge his conviction. Id. Because Plaintiff alleges
that the NAACP violated his constitutional rights, this is even more reason not
to disqualify Mr. King without further development of this litigation.

6

association

with

New

Orleans

Branch

or

Ms.

McMillan

is

even

relevant—neither is a party in this litigation, and Mr. King
submitted a sworn affidavit that he has never served as legal
counsel for either the New Orleans Branch or Ms. McMillian. (R.
Doc. 18-1.) Should it become clear that Mr. King is a necessary
witness, must become a party to this action, or that an unwaivable
conflict of interest has arisen, the Court will determine whether
Mr. King must be disqualified as counsel for Defendants at that
time. However, the facts do not warrant dismissal at this stage of
the proceedings. 5 See Lange, 1992 WL 668216, at *3 (noting that
courts “must be especially sensitive to the potential for abuse
when . . .

the party seeking disqualification is also the one

wanting to call the attorney as a witness.”).

5

The parties have not engaged in any motion practice, the discovery deadline
and deadline for depositions is August 18, 2017, and the pre-trial motion
deadline is August 30, 2017.

7

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Dismiss
Counsel (R. Doc. 17) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to
File (R. Doc. 19) is DENIED AS MOOT.
New Orleans, Louisiana this 5th day of June, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

8