TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion to Disqualify Lewis Brisbois Bisgaard & Smith, LLP (ECF No. 22). Plaintiff Mandy Greenfield requests that the law firm of Lewis Brisbois Bisgaard & Smith, LLP ("the law firm") be disqualified from representing Defendants in this case because of its representation of Defendant Newman University, Inc. during the investigation of the Title IX complaints at issue. In the alternative, Plaintiff requests that Alan R. Rupe, Jeremy K. Schrag, Christina M. Guerin, and Laura J. Anson, attorneys in the law firm, be disqualified from representing Defendants for the same reason. Defendant Newman University, Inc. ("Newman") opposes the motion. For the reasons set out below, the Court finds the motion should be granted and Plaintiff afforded the alternative relief she seeks.
The parties' factual statements are not in complete agreement. Where one party supplies a declaration in support of that party's factual recitation and the opposing party offers no opposing affidavit, the Court will accept such facts as true for purposes of this motion. In addition, because Newman has not filed an answer, the Court accepts as true the factual allegations of the First Amended Complaint
Newman hired Plaintiff as its Human Resources Director in 2014. On October 9, 2017, Newman's Title IX executive committee directed Plaintiff to coordinate the investigation of a Title IX complaint filed by Newman's head volleyball coach asserting sexual harassment and gender discrimination against Newman's athletic director who also served as director of student affairs. An investigation ensued. On December 1, 2017, as the investigation was nearing its conclusion, Jeremy Schrag (at attorney at the law firm) and another individual told Plaintiff that the law firm would be taking over this investigation and those in three other Title IX complaints that had been filed since October 9, 2017. Mr. Schrag also gave Plaintiff a letter from Newman's board chair. The letter informed Plaintiff the board of trustees had decided to place her on administrative leave effective immediately, but the leave was "not a disciplinary action."
One week later, Plaintiff sent her "whistleblower complaint" to the board chair, who then asked for additional specific allegations. On December 19, Plaintiff provided the additional information.
On December 28, 2017, Mr. Schrag sent Plaintiff an email, with a copy to Alan Rupe, asking her to meet with them as part of their Title IX investigation. Plaintiff responded the next day and agreed to a meeting on January 4, 2018, at the law firm's Wichita office. By this point, Plaintiff had retained counsel who had sent a letter to the law firm asking questions on Plaintiff's behalf.
Plaintiff attended the January 4, 2018 interview as scheduled, which apparently began with Mr. Schrag.
The following day, Mr. Rupe called Plaintiff's former Human Resources assistant and left a voice mail message identifying himself as an attorney asked by Newman to do an investigation into some of the work environment issues within Newman. Newman's president also left two voice mail messages asking the former assistant to call Mr. Rupe.
Although Mr. Rupe denies attending any other interviews performed by Mr. Schrag, former Newman IT employee Kelly McCarthy states in a declaration that on January 3, 2018, she was interviewed by Messrs. Schrag and Rupe in their office. Mr. Rupe told her that he was handling the HR part of the investigation while Mr. Schrag was handling the Title IX part. However, based on the questions they posed to her, "it seemed to [her] that they were investigating Mandy Greenfield . . ., not Title IX issues."
On January 31, 2018, Newman's Vice President for Finance and Administration sent Plaintiff a letter terminating her employment. The letter stated that on January 28, 2018, the executive committee of the board of trustees had received a report "summarizing the results of an independent investigation into [Plaintiff's] management and oversight of Newman's internal investigation into the Title IX complaints submitted by several University employees. . . . The letter . . . directed me to contact Alan Rupe if I had any questions."
Mr. Rupe did not make the decision to terminate Plaintiff's employment with Newman. He received the final report to the executive committee from Mr. Schrag on January 28, 2018, and the following day he and Mr. Schrag attended the executive committee meeting during which Newman decided to terminate Plaintiff's employment.
Plaintiff contends that the law firm, and more specifically attorneys Rupe, Schrag, Guerin, Anson, and any others actively engaged in the investigation described above, are precluded by Rule 3.7 of the Kansas Rules of Professional Responsibility from acting as advocates at trial and from engaging in pretrial activity that may cause confusion to the jury at trial.
Newman argues that Mr. Rupe should not be disqualified from representing it because any information he could possibly be compelled to give would be cumulative of information provided by the Title IX investigators. Newman further argues that the law firm need not be disqualified because Rule 3.7(b) permits a lawyer to be an advocate at a trial in which another lawyer in the firm is likely to be called as a witness. And because attorneys Schrag, Guerin, and Anson are not involved in representing a party in this lawsuit, Newman argues it is unnecessary to disqualify them.
Two sources inform whether a district court should disqualify an attorney.
The District of Kansas has adopted the Kansas Rules of Professional Conduct ("KRPC") as the "applicable standards of professional conduct" for lawyers appearing in this Court.
A motion to disqualify must be decided on its own facts, and the court must carefully balance the interest in protecting the integrity of the judicial process against the right of a party to have the counsel of its choice.
In deciding a motion to disqualify counsel, the trial court balances several competing considerations, including the privacy of the attorney-client relationship, the prerogative of a party to choose counsel, and the hardships that disqualification imposes on the parties and the entire judicial process.
Kansas Rule of Professional Conduct ("KRPC") 3.7, upon which Plaintiff relies as the basis for her request to disqualify the law firm, provides:
One of the strongest rationales for this lawyer-witness rule is to prevent jury confusion over the separate roles of an advocate and a witness.
The District of Kansas uses the so-called Smithson test in determining whether potential testimony is necessary and whether counsel should be disqualified based on KRPC 3.7.
Plaintiff contends any attorney at the law firm who was actively engaged in the Newman investigation possesses personal knowledge of what she refers to as the "repeat investigations" which ultimately led to termination of her employment. As Plaintiff points out, one of the central issues in this case is the motivation or reason for Plaintiff's termination. In the briefing on its motion to dismiss, Newman asserts that the reasons for Plaintiff's termination were discovered during the independent investigation by the law firm, thus making the lawyers Newman's only witnesses. Plaintiff argues their knowledge is clearly "evidence that is material to the issue being litigated," thus satisfying the first Smithson factor.
Defendant primarily addresses this issue with respect to Mr. Rupe, suggesting his involvement was limited to being present for two-thirds of Plaintiff's January 4 interview. Even at that, Defendant suggests Mr. Rupe has less knowledge about the interview than Plaintiff and her counsel who were present the entire time. Mr. Rupe denies attending any other interviews performed by any of the Title IX investigators, thereby refuting the notion that he possesses evidence material to the issues being litigated.
The Court is faced with reconciling opposing declarations on this issue. While Mr. Rupe denies having attended any other interviews performed by Mr. Schrag, Ms. Guerin, and/or Ms. Anson, Plaintiff has submitted the declaration of Kelly McCarthy, who provides substantial detail about a two-hour interview she had with Messrs. Rupe and Schrag on January 3, 2018, the day before they interviewed Plaintiff. Ms. McCarthy's declaration includes the following statements:
Ms. McCarthy then offered an impression: "It seemed to me that they were investigating Mandy Greenfield . . ., not Title IX issues."
The parties agree and the Court accepts that Mr. Schrag and Mss. Guerin and Anson comprised the Title IX investigating team. Although Newman never identifies Mr. Rupe's role, he states in his declaration that he is "an attorney representing Defendant Newman . . . in this lawsuit."
The Court concludes that the law firm's work on behalf of Newman evolved between December 1, 2017, when Mr. Schrag told Plaintiff the law firm was taking over the Title IX investigation and Newman placed her on administrative leave not disciplinary in nature, and January 31, 2018, when Newman terminated Plaintiff's employment. According to Newman, it learned information during the investigation that caused it to terminate Plaintiff's employment, and understandably Newman availed itself of legal advice as it evaluated and acted upon the information. The Court is in no way critical of Newman or its counsel, nor does it minimize Newman's right to have the counsel of its choice. However, the facts demonstrate that Mr. Rupe, along with Mr. Schrag and Mss. Guerin and Anson, possess evidence material to the determination of the claims and defenses being litigated.
Plaintiff acknowledges she is capable of testifying about the three interviews the law firm conducted with her. However, the investigation extended beyond those three interviews. Plaintiff argues that no one from Newman other than its attorneys has firsthand knowledge of the entire investigation, and the evidence concerning it therefore cannot be obtained elsewhere.
Newman does not address this factor for anyone other than Mr. Rupe. With respect to relevant information in his possession, Newman argues that Plaintiff cannot demonstrate that Mr. Rupe is the only individual who could testify "to what happened at Plaintiff's interview."
The Court finds, and Newman does not argue otherwise, that Mr. Schrag and Mss. Guerin and Anson possess evidence that cannot be obtained elsewhere.
As for Mr. Rupe, Plaintiff's argument is not as narrow as Newman's response. She does not contend that Mr. Rupe is the only individual who could testify about the January 4 interview, but that he and others from the law firm are the only people who know about the entirety of the investigation. The Court agrees with Plaintiff's contention about the breadth of their collective knowledge. But more to the point as it relates to Mr. Rupe, the Court cannot ignore the many details that cumulatively indicate the depth of his individual knowledge: he was included in all email correspondence between Plaintiff and Mr. Schrag regarding the Title IX investigation; when he conducted the interview of Ms. McCarthy the day before Plaintiff's first interview, he identified himself as handling the HR part of the investigation that Plaintiff had no way of knowing even existed; during Plaintiff's first interview, he whispered questions to Mr. Schrag, clarified questions with Plaintiff, and coordinated her next interview with his availability—again, with the knowledge he was conducting an HR investigation that he did not inform Plaintiff was ongoing; and the following day he called Plaintiff's former assistant as part of his investigation into "some of the work environment issues within the university,"
Keeping in mind that an issue in this case is the motivation or reason for Plaintiff's termination, Plaintiff's contention that there were "repeat investigations" and not only one "independent investigation," the discovery that is likely to be conducted to explore those issues, and the fact that the ultimate burden of proof rests with Newman, the Court finds that Plaintiff has adequately met the second Smithson factor by demonstrating that the relevant evidence would not be cumulative and is not otherwise available.
Finally, Plaintiff addresses the third factor, arguing Newman could be prejudiced by Mr. Rupe's representation because he may be constrained from making certain arguments by virtue of his own involvement, or may be tempted to minimize his own conduct at the client's expense.
The Court agrees that Mr. Rupe's representation of Newman has the potential of causing prejudice, particularly if Mr. Rupe were to testify. In that instance, the jury may confuse what is testimony and what is argument, and whether his statements should be taken as proof or as an analysis of the proof. Plaintiff has thus satisfied the third Smithson factor.
Plaintiff separately argues that Mr. Schrag and Mss. Guerin and Anson should be disqualified because they acted as internal investigators on behalf of Newman and will be witnesses. The Court need not consider the issue because Newman denies those attorneys are involved in representing it in this lawsuit.
Newman argues that Plaintiff is premature in seeking Mr. Rupe's disqualification because it is too early to tell whether any of his first-hand knowledge will be material at trial. And even if his participation in pretrial proceedings would ultimately result in his testimony being presented at trial, Newman asserts that the Court could restrict Mr. Rupe's participation in particular proceedings as a remedy. Plaintiff disagrees, arguing that she would risk an adverse ruling by waiting until the litigation were well underway. Moreover, Plaintiff asserts that at attorney who is likely to be a necessary witness and has had contact with the opposing party warrants disqualification not only as an advocate at trial, but also in evidentiary hearings and depositions.
KRPC 3.7(a) speaks to an attorney who acts as an advocate "at trial." As Judge Waxse noted, the primary purpose of the rule is to avoid jury confusion at trial, and the rule does not automatically require a lawyer's disqualification from all pretrial activities.
The Court concludes that Plaintiff's motion is not premature. Judicial economy and the parties' efficiency in litigating this case are best served by addressing the issue now. Given the facts of this case and the parties' claims and defenses, the Court determines that Messrs. Rupe and Schrag and Mss. Guerin and Anson are disqualified from representing Newman in this case.
