Dalton v. Painters District Council No. 2 et al
Filing
107
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the renewed motion filed by Defendants former counsel in this case (Bartley Goffstein, L.L.C., Paul C. Hetterman, and James R. Kimmey, III) for reconsideration of this Courts Memorandum and Order dated A pril 8, 2011, granting Plaintiffs motion to disqualify former counsel as Defendants counsel in this case, is DENIED. (Doc. No. 103.) re: 103 MOTION for Reconsideration filed by Movant Bartley Goffstein, L.L.C. Signed by Honorable Audrey G. Fleissig on 1/25/12. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LESA DALTON,
)
)
Plaintiff
)
)
vs.
)
)
PAINTERS DISTRICT COUNCIL NO. 2, )
and JOSEPH BARRETT,
)
)
Defendants.
Case No. 4:10CV01090 AGF
MEMORANDUM AND ORDER
This matter is before the Court on the “renewed” motion filed by Defendants’
former counsel in this case (Bartley Goffstein, L.L.C., Paul C. Hetterman, and James R.
Kimmey, III (collectively referred to as “BG”)) for reconsideration of this Court’s
Memorandum and Order (Doc. No. 64) dated April 8, 2011, granting Plaintiff’s motion to
disqualify BG as Defendants’ counsel. For the reasons set forth below, the renewed
motion shall be denied.
The background leading up to the Court’s decision to disqualify BG as
Defendants’ counsel in this case is set forth in the Court’s Order of April 8, 2011. Briefly,
Plaintiff alleged in her then-current third amended complaint against her union and Joseph
Barrett, who at various times was the Business Manager and/or Secretary-Treasurer of the
union, that the two Defendants discriminated against her in violation of Title VII of the
Civil Rights Act of 1964 (Count I) and the Missouri Human Rights Act (“MHRA”) (Count
II). Plaintiff alleged Defendants discriminated against her by Barrett’s sexually aggressive
conduct toward her; the union preventing her from working because she complained of the
sexual harassment; discriminating against her because she is a woman; and retaliating
against her for filing an administrative charge with the Equal Employment Opportunity
Commission and the Missouri Commission on Human Rights and for airing her
complaints against Barrett at an April 2009 union meeting. In Count III, Plaintiff claimed
that Defendants violated the duty of fair representation by imposing a fine and by
continuing to advise contractors not to her hire.
Plaintiff moved to disqualify BG on the ground that in January 2009, she told the
then Business Manager of the union about Barrett’s alleged sexual harassment and that the
Business Manager advised her to speak to Jeffrey Hartnett, a lawyer at Bartley Goffstein,
L.L.C., the firm that represented the union. Plaintiff alleged that she followed this advice
and discussed her claims with attorneys at Bartley Goffstein.
Following an evidentiary hearing on the motion to disqualify, the Court found that
Plaintiff did indeed call Bartley Goffstein in early 2009 and told both Hartnett and
Kimmey, another lawyer at Bartley Goffstein, at least generally, about her alleged sexual
harassment by Barrett. The Court further found that the two lawyers each told Plaintiff
that she could (or even should) file an internal grievance, and did not tell her that she
should contact another lawyer to represent her. They then told Plaintiff that as BG
represented the union, the firm could not get involved in disputes between union members.
Based on these findings, the Court determined that Plaintiff was seeking legal
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advice when she spoke to Hartnett and Kimmey, that she reasonably believed that they
gave her such advice, and that the advice was about the issues involved in the present case.
The Court applied Missouri Rule of Professional Conduct 4-1.9(a), which provides: “A
lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or substantially related matter in which that person’s interests
are materially adverse to the interests of the former client unless the former client gives
informed consent, confirmed in writing,” and granted the motion to disqualify. The Court
noted that the question was close, but that case law directed that any doubt be resolved in
favor of disqualification.
New counsel entered an appearance on behalf of Defendants on May 6, 2011, and
on May 23, 2011, the Court denied Defendants’ motion for reconsideration of the Order
disqualifying BG. Thereafter, by Memorandum and Order dated November 10, 2011, the
Court granted Defendants’ motion to dismiss Plaintiff’s sexual harassment claims in
Counts I and II, due to her failure to exhaust administrative remedies with respect to those
claims, because in the administrative charge she had filed on August 10, 2009, she only
complained about retaliation and not harassment or sexual discrimination.
The Court, thus, concluded that Plaintiff’s claims in Count I and II were limited to
her retaliation claims against the union under Title VII, and against Barrett under Title VII
and the MHRA (which recognizes supervisory liability). The Court also denied the
motion to dismiss, in large part, with regard to Count III, as well as with regard to a new
count that had been added in Plaintiff’s fourth amended complaint, namely, that
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Defendants violated the Labor Management Reporting Disclosure Act (“LMRDA”) by
retaliating against Plaintiff for exercising her free speech rights in complaining about
Barrett’s sexual harassment.
As noted above, the motion now under consideration was filed by BG for renewed
reconsideration of its disqualification as Defendants’ counsel in this case. BG argues that
“the remaining claims in the litigation are both factually and temporally distinct from the
alleged facts supporting the now dismissed sexual harassment claim,” and that none of the
facts that Plaintiff divulged to BG are relevant to the remaining claims. BG argues that
Defendants should therefore not be precluded from proceeding with counsel of their own
choosing.
BG cites to a recent Missouri case, State ex rel Thompson v. Dueker, 346 S.W.3d
390, 396 (Mo. Ct. App. Aug. 9, 2011), which explains the different standards for
disqualification of a lawyer that must be met by a former client, under Rule 4-1.9, as
opposed to the standards applicable to such a request by a former prospective client, under
Rule 4-1.18. The latter does not prohibit a lawyer from representing a client with interests
adverse to those of a former prospective client in the same or substantially related matter
unless the lawyer received from the prospective client information that could be
significantly harmful if used in the matter. Id. at 396. Plaintiff argues that the renewed
motion for reconsideration should be denied because all the claims in this action are
“substantially related.”
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DISCUSSION
The Court maintains its belief that, based upon the facts divulged by Plaintiff to
the two BG lawyers, BG could not have represented Defendants in Plaintiff’s sexual
harassment/discrimination claims. In Thompson, the Missouri Court of Appeals
determined that a husband’s attempt to disqualify a certain lawyer from representing his
wife in their divorce proceedings was governed by Rule 4-1.18 and not Rule 4-1.9 because
the husband did not allege “that during the consultation [with the lawyer] he sought or
received any legal advice or assistance from [him].” Id. at 394-95. Here, by contrast, the
Court found that Plaintiff did seek and receive legal advice.
Although not specifically noted by the Court in its earlier Order disqualifying BG,
the Court supplements its findings, based on Plaintiff’s credible testimony on the point,
that when Plaintiff first called BG and spoke with Hartnett, Hartnett indicated to her that
he was expecting her call and knew what it was about generally. This lends support to the
Court’s conclusion that BG intended to provide legal advice to Plaintiff and that Plaintiff
had formed an attorney-client relationship with Bartley Goffstein attorneys. “An
attorney-client relationship is established when a prospective client seeks and receives
legal advice and assistance from an attorney who intends to provide legal advice and
assistance to the prospective client.” Polish Roman Catholic St. Stanislaus Parish v.
Hettenbach, 303 S.W.3d 591, 601 (Mo. Ct. App. 2010); see also United States v. Bailey,
327 F.3d 1131, 1139 (10th Cir. 2003) (cited in Hettenbach with approval). The fact is that
Plaintiff contacted BG to obtain legal advice, that she advised the lawyers of the facts of
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her claim and the nature of her claim, and that the Bartley Goffstein lawyers in fact gave
her legal advice regarding her claim. That they thereafter, belatedly, advised her that they
could not represent her in a dispute between union members does nothing to change this.1
The Court further concludes that the remaining claims in this action are too closely
related to the dismissed claims to allow BG to now step in and represent Defendants on
the remaining claims. BG has not cited any cases in which a lawyer who was disqualified
from representing a defendant in a plaintiff’s suit for sexual harassment on the job was
permitted to represent the same defendant in the same plaintiff’s retaliation claim, in the
same case, where the asserted protected activity in the retaliation claim was reporting the
harassment underlying the harassment claim. While indeed, harassment and retaliation are
separate claims, the Court concludes that here they are “substantially related” for purposes
of Rule 4-1.9(a). See generally Polish Roman Catholic St. Stanislaus Parish v.
Hettenbach, 303 S.W.3d 591, 602 (Mo. Ct. App. 2010) (discussing Missouri’s approach to
determining the existence of a “substantial relationship” under Rule 4–1.9).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the renewed motion filed by Defendants’
former counsel in this case (Bartley Goffstein, L.L.C., Paul C. Hetterman, and James R.
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Further complicating any representation adverse to Plaintiff is her contention
that BG’s advice to her to file a grievance, and failure to advise her to retain counsel,
contributed to her failure to check all appropriate boxes on her administrative charge, and
the subsequent dismissal of her harassment claims.
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Kimmey, III) for reconsideration of this Court’s Memorandum and Order dated April 8,
2011, granting Plaintiff’s motion to disqualify former counsel as Defendants’ counsel in
this case, is DENIED. (Doc. No. 103.)
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 25th day of January 2012.
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