Roxanne Adams, Administrator of the Estate of Jamycheal M. Mitchell v. Naphcare, Inc. et al

Filing 146

MEMORANDUM OPINION AND ORDER, entered and filed 11/14/16: The Court has held multiple hearings on this matter, at which counsel for the parties have argued zealously and passionately. Most recently, on October 19, 2016, the Court held a hearing o n motions to dismiss filed by fifteen of the thirty-eight Defendants. These motions were referred to the undersigned for report and recommendation by the Chief District Judge. The hearing, which lasted for four hours, included argument regarding th e dispositive motion filed by Defendant Ferguson, the DBHDS Commissioner. One of the affirmative defenses raised by Commissioner Ferguson is qualified immunity, and this issued was argues extensively at the hearing by her counsel, David Corrigan, an d by Plaintiff's counsel, John Preis. Mr. Preis, an attorney of record in this case, is also a full-time professor with the T.C. Williams School of Law at the University of Richmond. At the conclusion of the hearing the Court took the motions under advisement in order to prepare reports and recommendations to the Chief District Judge. Two days later, on October 21, 2016, the law clerk for the undersigned attended the Institute for Federal Law Clerks seminar held at the law school at Univ ersity of Richmond. This seminar, which is sponsored biennially by the District Judges Association of the Fourth Circuit and the University of Richmond, is limited in attendance to federal law clerks in the Fourth Circuit. Thirty-five law clerks f rom the Eastern District of Virginia were in attendance, including the undersigned's and all of those of the Chief District Judge. Mr. Preis was one of the lecturers at the seminar, speaking on the topic of "Recent Developments in the Unit ed States Supreme Court and the Fourth Circuit." Following the conclusion of his prepared remarks, Mr. Preis addressed the doctrine of qualified immunity, which was unrelated to his topic. In these remarks, he specifically discussed the instan t case, advising the audience that he was presently involved in this litigation and addressing the qualified immunity defense asserted by Commissioner Ferguson, as outlined. Having been advised by the undersigned's law clerk of these events a nd being concerned about the possibility that Mr. Preis' conduct might constitute an attempted ex parte communication, the Court issued its Order on October 27, 2016, advising the parties of these events and setting the matter for hearing. By i ts Order the Court advised the parties of their opportunity to respond at the hearing. if they so requested. The Court also included in its Order a direction to Mr. Preis to show cause "why the Court should not consider his conduct to constitut e an attempted ex parte communication as to the merits of this case, in contravention of Rule 3.5(e) of the Virginia Rules of Professional Conduct." Prior to the hearing, Mr. Preis filed a response to the Court's Order on October 28, 2016 , in which he acknowledge the appropriateness of the Court's concern and expressed regret "that his conduct has given rise to such concerns." ECF No. 141 at 1-2., as outlined. Mr. Preis' conduct was improper and has been a significant and unnecessary distraction. Accordingly, Mr. Preis is ADMONISHED for his conduct in arguing the merits of Defendant Ferguson's qualified immunity defense before a private audience of federal lawclerks, including the unde rsigned's and those of the Chief Judge, while this litigation is pending. That stated, Mr. Preis is an officer of the Court whose good character was attested to by his co-counsel and who may be considered more a full-time professor than a full-time litigator. The Court therefore accepts his representation that he did not intend or appreciate the fact that by arguing his case to the assembled law clerks, he may have engaged in an attempted ex parte communication. In light of the above conclusion, the Court finds there are insufficient grounds to impose further sanction, or to take any further action pursuant to Virginia Rule ofProfessional Conduct 3.5(e). The show cause Order is therefore DISMISSED. In conclusion, the Court finds it necessary to include in this Order its closing remarks from the November 1 hearing, as stated in this Memorandum Opinion and Order. (See Order and Foot Notes for Specifics( (Signed by Magistrate Judge Lawrence R. Leonard on 11/14/16). Copies provided as directed 11/14/16.(ecav, )

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

ROXANNE ADAMS,
Administrator of the Estate

of Jamycheal M. Mitchell,
Plaintiff,
Civil Action No: 2:16-cv-229

V.

NAPHCARE, INC. et a!.,
Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Roxanne Adams is the administrator of the estate of Jamycheal M. Mitchell, a

pre-trial detainee who died while incarcerated at the Hampton Roads Regional Jail. Plaintiff has

brought this action against a variety of jail officials, correctional officers, jail medical care
providers and administrators, Portsmouth General District Court clerks, a clerical state hospital
employee, and the Commissioner of the Virginia Department of Behavior Health and
Developmental Services ("DBHDS"). Plaintiff has alleged that each of these Defendants, acting
in their personal capacities, caused or contributed to cause the wrongful death of Mr. Mitchell
and the violation of his civil rights. The Court has held multiple hearings on this matter, at

which counsel for the partieshave argued zealously and passionately.

Most recently, on October 19, 2016, the Court held a hearing on motions to dismiss filed

by fifteen of the thirty-eight Defendants. These motions were referred to the undersigned for

report and recommendation by the Chief District Judge. The hearing, which lasted for four
hours, included argument regarding the dispositive motion filed by Defendant Ferguson, the

DBHDS Commissioner. One of the affirmative defenses raised by Commissioner Ferguson is

qualified immunity, and this issue was argued extensively at the hearing by her counsel, David
Corrigan, and by Plaintiffs counsel, John Preis. Mr. Preis, an attorney ofrecord in this case, is
also a full-time professor with the T.C. Williams School ofLaw at the University ofRichmond.
Atthe conclusion of thehearing the Court took the motions under advisement in order to prepare
reports and recommendations to the ChiefDistrict Judge.

Two days later, on October 21, 2016, the law clerk for the undersigned attended the
Institute for Federal Law Clerks seminar held at the law school at University of Richmond. This

seminar, which is sponsored biennially by the District Judges Association of the Fourth Circuit
and the University of Richmond, is limited in attendance to federal law clerks in the Fourth
Circuit.

Thirty-five law clerks from the Eastern District of Virginia were in attendance,

including the undersigned's and all ofthose ofthe Chief District Judge. Mr. Preis was one ofthe
lecturers at this seminar, speaking on the topic of "Recent Developments in the United States

Supreme Court and the Fourth Circuit." Following the conclusion of his prepared remarks, Mr.
Preis addressed the doctrine of qualified immunity, which was unrelated to his topic. In these

remarks, he specifically discussed the instant case, advising the audience that he was presently
involved in this litigation and addressing the qualified immunity defense asserted by
Commissioner Ferguson.

Although he did not refer to her by name, he did refer to

Commissioner Ferguson generally as a state agency commissioner responsible for the medical
care of state prisoners. In addition, he presented to the assembled law clerks his perspective on
why the qualified immunity defense should not be available. Mr. Preis' remarks were not
recorded on either video or audio. Of course, neither Mr. Corrigan nor any of the other counsel
for the defendants was in attendance at this seminar.

Having been advised by the undersigned's law clerk ofthese events and being concerned
about the possibility that Mr. Preis' conduct might constitute an attempted ex parte
communication, the Court issued its Order on October 27, 2016, advising the parties of these

events and setting the matter for hearing. Canon 3A(4) of the Canons of Judicial Ethics
provides, inter alia:

Except as set out below, a judge should not initiate, permit, or consider ex parte
communications or consider other communications concerning a pending or

impending matter that are made outside the presence of the parties or their
lawyers. If a judge receives an unauthorized ex parte communication bearing on
the substance of a matter, the judge should promptly notify the parties of the

subject matter of the communication and allow the parties an opportunity to

respond, ifrequested.'
By its Order the Court advised the parties of their opportunity to respond at the hearing, if they
so requested. The Court also included in its Order a direction to Mr. Preis to show cause "why
the Court should not consider his conduct to constitute an attempted ex parte communication as
to the merits of this case, in contravention of Rule 3.5(e) of the Virginia Rules of Professional
Conduct."^

Priorto the hearing, Mr. Preis filed a response to the Court's Order on October 28, 2016,

' Inaddition, thecommentary to Canon 3A(4) provides: "Ajudge should make reasonable efforts to ensure that law
clerks and other court personnel comply with this provision."

^Rule 3.5(e) of theVirginia Rules of Professional Conduct provides:
Inanadversary proceeding, a lawyer shall not communicate, or cause another to communicate, as
to the merits of a cause with a judgeor official before whom the proceeding is pending, except:
(1) in the course of official proceedings in the cause;

(2) inwriting if the lawyer promptly delivers a copy of the writing to opposing counsel orto the
adverse party who is not represented by a lawyer;

(3) orally upon adequate notice to opposing counsel orto the adverse party who Is not represented
by a lawyer; or

(4) as otherwise authorized by law.
In addition, Comment (3) to this Rule provides:

All litigants and lawyers should have access to tribunals on an equal basis. Generally, in
adversary proceedings a lawyer should not communicate with ajudge relative toa matter pending
before, or which is to be brought before, a tribunal over which thejudgespresides in
circumstances which might have the effect orgive the appearance of granting undue advantage to
one party.

in which he acknowledged the appropriateness ofthe Court's concern and expressed regret "that

his conduct has given rise to such concerns." ECF No. 141 at 1-2. Following that introduction,

Mr. Preis then provided a statement offacts explaining the circumstances ofhis conduct at the
seminar, and advanced three arguments seeking to establish that he had not violated the
aforementioned Virginia Rule of Professional Conduct. Id. at 2-10. First, he stated he did not
know the aforementioned law clerks were present so he could not have attempted to
communicate with them. Id. at 7. Additionally, Mr. Preis equated his comments before the
federal law clerk audience to a general public communication, claiming that if this was an

attempted ex parte communication, "then many other public statements could reasonably be
deemed ex parte communications as well." Id. Lastly, he contended he "did not advocate a
particular result or urge a particular position" inhis remarks. Id.

The hearing was subsequently held on November 1, 2016. ECF No. 143. Mr. Mark
Krudys and Mr. Preis represented the Plaintiff Also present were Mr. Corrigan for Defendant
Ferguson; Ms. Grace McNelis for Defendants Naphcare, Inc., Kolongo, Edwards, Ray, Ngwa,
Johnson, Thomas, Rivers, Nicholson, and Murphy; Mr. Nicholas Simopoulos for Defendants

Boyd and Davis; Mr. Jeffrey Hunn for Defendants Hampton Roads Regional Jail Authority,
Hampton Roads Regional Jail, Simons, Taylor, Gibbs, Hilliard, Keister, Powell, Smith, Johnson,

Phillips, Everette, Madison, and Cowan; Mr. Gregory Holland for Defendant Hart; and Mr. Mark
Colombell for Defendants Barnes, Blakely, Bourne, Butcher, Brown, Dixon, Epperson,

Whitaker, R. Whitehead, and S. Whitehead. The transcript ofthe hearing was prepared and filed
on November 14,2016. ECF No. 145.

Mr. Preis addressed the Court first, and apologized for the "trouble" caused by his

conduct. Id. at 6. He acknowledged that he had erred in addressing this case to the law clerks at

the semmar, and stated that he did not appreciate his error at the time. Id. at 7-8. He represented

that he did not appreciate that any law clerks who were connected to this case might be in
attendance at the seminar, and while he recognized the undersigned's law clerk as someone who
looked familiar, did not make the connection that he was, in fact, the undersigned's law clerk.
Id. at 8-9.

Mr. Preis claimed he discussed this case as an illustration and did not intend to

persuade the law clerks or argue his position. Id. at 9. He expressed his concern and regret over
this situation and assured the Court that he took this matter seriously. Id. at 8.

The Court then provided each of the parties, through their counsel, an opportunity to

respond. Mr. Corrigan, on behalfof Commissioner Ferguson, addressed the three arguments Mr.
Preis advanced in his show cause response. First, Mr. Corrigan argued that, while he accepted

Mr. Preis' representation that he did not appreciate that law clerks connected to this case were in
attendance, he believed Mr. Preis should have known that. Id. at 11. Second, he argued that Mr.

Preis' comments were not like a general public statement, because they were addressed to a

limited audience composed solely of federal law clerks. Id. at 12. Third, he accepted that Mr.
Preis believed he did not advocate for his position in his remarks, but proffered that it was more

likely that he did so advocate since he believed a listener always knows which side of an issue a
person is on when talking about a case, especially one in which they are involved. Id. at 12-13.
Mr. Corrigan left it to the Court to decide what effect should be given Mr. Preis' conduct, and

requested that it not favor the Plaintiff but instead be taken in consideration in weighing
Commissioner Ferguson's motion to dismiss. Id. at 13.
Ms. McNelis then addressed the Court on behalf of Defendants Naphcare, Inc., Kolongo,

Edwards, Ray, Ngwa, Johnson, Thomas, Rivers, Nicholson, and Murphy. She emphasized the

potential outsized influence Mr. Preis might command before his law clerk audience, given his

status as a law professor. Id. at 14-15. She expressed concern that the fact that Mr. Preis saw fit
to discuss this ongoing case outside the confines of this lawsuit might result in him later

discussing the case with persons who might become jurors. Id. at 15. Consequently, she
suggested that Mr. Preis' "continued involvement in this case raises some significant
concerns..." Id. Nonetheless, shedid not move to disqualify Mr. Preisas counsel or suggest any
remedy. Id.

Mr. Simopoulos on behalf of Defendant Hart suggested that Mr. Preis should have been
more careful than to discuss an ongoing case when addressing judicial law clerks from the Court
in which that case is being litigated. Id. at 16.

Mr. Hunn on behalf of Defendants Hampton Roads Regional Jail Authority, Hampton

Roads Regional Jail, Simons, Taylor, Gibbs, Hilliard, Keister, Powell, Smith, Johnson, Phillips,
Everette, Madison, and Cowan took no position with respect to by the Court's October 27, 2016
Order and thus offered no response to Mr. Preis' conduct. Id.
Mr. Colombell then addressed the Court on behalf of Correctional Officer Defendants

Barnes, Blakely, Bourne, Butcher, Brown, Dixon, Epperson, Whitaker, R. Whitehead, and S.
Whitehead. He noted that Mr. Preis' conduct did not simply constitute public comments, but

instead were remarks before a private audience of lawclerks. He expressed concern that the case

has generated significant publicity, which he argued has stemmed largely fi-om the Plaintiffs
side of the case. Id. at 17. Consequently, he noted that Mr. Preis' conduct may give the

impression to his clients that Mr. Preis' private address to the law clerks could have persuasive
effect on the Court. Id. at 18. Finally, he described the timing of Mr. Preis' conduct only two

days afterthe motions hearing as "troublesome." Id.
Mr. Holland on behalf of Defendant Hart commented that a reasonable person "would

have to have suspected" that law clerks involved in this case would be in the audience, and that
he was offended most that Mr. Preis acted as an advocate for his client's position before these

law clerks. Id. at 19. He also stated that he did not "believe for a minute" that the Court or its
law clerks would be influenced by this conduct. Id.

Mr. Preis, given an opportunity to respond, expressed appreciation for the remarks of

opposing counsel, and reiterated that itdid not occur to him that law clerks involved in this case
would be in his audience. Id. at 20.

Plaintiffs co-counsel, Mr. Krudys, was given an opportunity to respond. Id.

He

acknowledged that Mr. Preis' conduct was a mistake and apologized to the Court and the other
parties. Id at 20-21. He vouched for Mr. Preis' good character. Id. at 21. He agreed that Mr.
Preis should have known better than to have discussed this case at the seminar, but proffered

that, as a law professor and not a full-time litigator, Mr. Preis did not appreciate or understand
the context in which he made his remarks. Id. at 21-22. Finally, he stated it was clear that

neitherthis Court nor Chief Judge Smith would be influenced by these events. Id. at 23.

In determining the proper course of action here, the Court makes the following

observations and findings. First, it is wholly improper for an attorney involved in ongoing

litigation toargue the merits and substance ofhis client's case before law clerks who are working
with the judges who are deciding that case. Mr, Preis spent four hours actively participating ina

hearing arguing dispositive motions which had been referred to the undersigned for report and
recommendation. The undersigned's law clerk sat not fifteen feet before Mr. Preis during the

entu-ety of that hearing. Two days later, Mr. Preis deviated from his prepared remarks to argue

one of the very issues he had argued at the hearing before an audience of exclusively Fourth
Circuit federal law clerks, thirty-five of whom were from the Eastern District of Virginia. The

undersigned's law clerk was sitting in the front row, even closer to Mr. Preis than he was at the

hearing. Also at the seminar were the law clerks for the Chief Judge, who is the District Judge
who referred these motions to the undersigned for report and recommendation, and who

therefore will be the Judge to decide any objections which the parties may file. Mr. Preis
claimed that he merely discussed the merits of this case before the law clerks by way of
illustration. While Mr. Preis may believe he did not argue his client's position, there is no

mistaking that the assembled federal law clerks believed that is exactly what he did. Mr. Preis
also claimed that he did not appreciate that law clerks involved in this case were in attendance,

and that, while he recognized the undersigned's law clerk at the seminar, he did not make the
connection that he was the law clerk for the undersigned. Only Mr. Preis knows if this is
actually the case.

Both the Virginia Rules of Professional Conduct and Canons of Judicial Ethics prohibit

ex parte communications between an attorney and a judge (and the judge's staff) regarding the
merits of a case. This prohibition is understood in the ordinary case as precluding lawyers from
discussing the merits of their cases in person with or in correspondence to the judge. Research
has failed to disclose any cases involving circumstances similar to this situation, however. Mr.

Preis represented that he failed to appreciate the context of his remarks, and the perception that
his remarks might constitute an attempted ex parte communication. He declared that he did not
intend to engage in such communication. In hindsight, he recognized that his actions were a
mistake, for which he apologized.

Each of the parties was given an opportunity to respond to this situation, as required by

Canon 3A(4) ofthe Canon ofJudicial Ethics. While expressing various degrees ofconsternation
with Mr. Preis' conduct, none of the parties sought his disqualification or other specific sanction

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against the Plaintiff. None of the parties sought recusal by the Court, or even suggested that the
Court might be influenced by this conduct. Indeed, this Court has not beenand is not influenced,
swayed or otherwise persuaded by Mr. Preis' conduct.

Simply stated, Mr. Preis' conduct was improper and has been a significant and
unnecessary distraction. Accordingly, Mr. Preis is ADMONISHED for his conduct in arguing
the merits of Defendant Ferguson's qualified immunity defense before a private audience of
federal law clerks, including the undersigned's and those of the ChiefJudge, while this litigation

is pending. Thatstated, Mr. Preis is an officer of the Court whose good character was attested to

by his co-coimsel and who may be considered more a full-time professor than a full-time
litigator. The Court therefore accepts his representation that he did not intend or appreciate the
fact that by arguing his case to the assembled law clerks, he may have engaged in an attempted

ex parte communication. In light of the above conclusion, the Court finds there are insufficient

grounds to impose further sanction, or to take any further action pursuant to Virginia Rule of
Professional Conduct 3.5(e). The show cause Order is therefore DISMISSED.

In conclusion, the Court finds it necessary to include in this Order its closing remarks
fi-om the November 1 hearing:

Let me respond by saying, first, that under no circumstances is this Court
persuaded or at all influenced byanything that happened at thatlaw clerk seminar.
Secondly, certainly it was a mistake, certainly it was improper to be
discussing, arguing ongoing litigation in fi"ont of the very law clerks who are
involved on the judicial side of that case.
This case will be decided on the facts and the law. Make no mistake, it

will not be decided on extra-judicial statements, it will not be decided on press
releases or news accounts, it will not be decided on emotion. So for all of you, for

your parties, you can assure them that this Court, Chief Judge Smith, and the
Fourth Circuit, and the United States Supreme Court, if necessary, will decide this

case on the only grounds it should: The facts and the law. Somake no mistake.
Id. at 23-24.

The Clerk is DIRECTED to forward a copy of this Memorandum Opinion and Order to
all counsel of record.
IT IS SO ORDERED.

Lawrence R. teonq
United States Magistrate Judge
Norfolk, Virginia
November 14,2016

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