Salazar v. Continental Construction of Montana
Filing
110
ORDER DENYING 70 Motion for TRO; denying 72 Motion to Compel. On or before June 27, 2012, each attorney must file a notice with Court confirming that the attorneys have read (a) the Standards of Professional Courtesy Among Attorneys, and (b) Ten Commandments for Trial Lawyers. PLEASE READ ORDER FOR FULL DETAILS. Signed by Magistrate Carolyn S Ostby on 6/13/2012. (ACL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JUAN SALAZAR,
)
) CV-11-16-BLG-CSO
Plaintiff,
)
)
vs.
)
ORDER
)
CONTINENTAL
)
CONSTRUCTION
)
OF MONTANA, LLC, A&J
)
CONSTRUCTION OF MONTANA, )
INC., and JOHN DOES A-Z,
)
)
Defendants.
)
This action arose after Plaintiff Juan Salazar (“Salazar”) fell and
was injured at a construction site. Currently ripe for the Court’s review
are Defendant A&J Construction of Montana, Inc.’s (“A&J”) Motion for
Temporary Restraining Order (Court Doc. 70), and its related Motion to
Compel: Permanently Restraining Plaintiff’s Counsel from Violating
Model Rule 4.2 (Court Doc. 72).
1
I.
FACTS
The essential facts are not disputed. Counsel for A&J alleges
that an investigator hired by Salazar’s counsel sent a note to the
principals of A&J asking them to contact him. They did not do so, and
there was no further communication between the investigator and A&J
or its officers. There is no suggestion that Salazar’s counsel himself
attempted to contact A&J. See Court Doc. 73 at 3-4.
Salazar’s counsel admits these facts, appropriately acknowledges
that they raise serious concerns, and further acknowledges that the
minimal contact that occurred was “out of line.” Court Doc. 94 at 2. He
states that he did not personally attempt to contact A&J, nor did he
direct his investigator to do so. He filed an affidavit of his investigator,
in which the investigator acknowledges that he sent his business card
to A&J, reportedly in an effort to obtain information to locate a witness.
Court Doc. 94-1 at 2. The affidavit states that “neither Lucas Foust nor
anyone from his office directed me to contact either Jay or Diane Foster
[A&J principals],” that the communication was “done without the
knowledge or direction of anyone from Foust Law Office,” and that he
2
now “realize[s] that it was inappropriate for me to contact the Fosters.”
Id. at 2-3.
II.
DISCUSSION
A district court has the duty and responsibility to supervise the
conduct of attorneys who appear before it. For unethical behavior,
courts may impose sanctions including monetary sanctions, contempt,
and disqualification of counsel. Erickson v. Newmar Corp., 87 F.3d 298
(9th Cir. 1996). In Erickson, the Court found that defense counsel had
tampered with two essential expert witnesses of the opposing party,
thereby depriving Erickson from receiving a fair trial. The Ninth
Circuit instructed the district court to impose appropriate sanctions
and disciplinary action upon counsel. Id. at 304.
Local Rule 83.2 of this Court provides:
The standards of professional conduct of attorneys appearing in
the Court include the American Bar Association’s Model Rules of
Professional Conduct and the Montana Rules of Professional
Conduct. For a willful violation of any professional rules or
standards in connection with any pending matter, an attorney is
subject to appropriate disciplinary action and to referral of the
matter to the appropriate authority for disciplinary proceedings.
Rule 4.2 of the Montana Rules of Professional Conduct (“MRPC”)
provides that a lawyer “shall not communicate about the subject of the
3
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.” This
applies as well to communications with an organization that is
represented by counsel. See ABA Model Rule of Professional Conduct
4.2, comment 7. Neither Mr. Foust nor his investigator was authorized
to communicate directly with A&J.
Rule 5.3(b) of the MRPC provides that “[w]ith respect to a
nonlawyer employed or retained by a lawyer, the lawyer shall make
reasonable efforts to ensure that the person’s conduct is compatible
with the professional obligations of the lawyer.” A lawyer is
responsible for the conduct of such a nonlawyer if: “(1) the lawyer
orders or, with the knowledge of the specific conduct, ratifies or ignores
the conduct involved; or (2) the lawyer ... has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.” Id. at 5.3(c). It is unclear what action Mr. Foust took
to “make reasonable efforts” to ensure that his investigator did not
violate rules of conduct.
4
The primary relief sought here is in the nature of injunctive relief.
The purpose of injunctive relief is to “preserve the status quo and the
rights of the parties until a final judgment issues in a cause.” See U.S.
Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010)
(citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). A party
seeking a preliminary injunction must show the harm that will occur
absent the injunction. Id. A&J has not shown a likelihood of harm
absent an injunction.
Accordingly, injunctive relief will be denied for the following
reasons. First, it does not appear that the violation was willful.
Second, it does not appear that Plaintiff’s counsel directed, ratified, or
ignored this issue, or that he failed to take remedial action. Third,
although the remedial action was arguably not as prompt as it should
have been, there is no showing that the violation caused harm or is
likely to reoccur. As an officer of this Court, Mr. Foust, like all
attorneys who practice in this jurisdiction, is bound to adhere to all
applicable rules of professional conduct, even in the absence of a
restraining order or injunction. If a violation does reoccur and it comes
5
to the attention of this Court, sanctions will be imposed pursuant to the
authorities cited above.
In addition to injunctive relief, A&J requested that sanctions be
imposed. Court Doc. 104 at 2. Before seeking sanctions, counsel should
make a good faith effort to resolve the controversy without court action.
See generally Fed. R. Civ. P. 37(a)(1); Local Rule 26.3(c)(1). It does not
appear that movant’s counsel here made a good faith effort to resolve
this controversy without court action.
III. CONCLUSION
For these reasons, IT IS ORDERED as follows:
(1) A&J’s Motion for Temporary Restraining Order (Court Doc.
70), and its related Motion to Compel: Permanently Restraining
Plaintiff’s Counsel from Violating Model Rule 4.2 (Court Doc. 72) are
DENIED;
(2) Mr. Foust and Mr. Stubbs each must carefully read and
consider: (a) the Standards of Professional Courtesy Among Attorneys,
and (b) Ten Commandments for Trial Lawyers. On or before June
27, 2012, each attorney must file a notice with the Court confirming
6
that he has done so. Both documents can be found in the 2012
Lawyers’ Deskbook & Directory.
DATED this 13th day of June, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?