Campbell v. Pa. Sch. Boards Ass'n
| Decision Date | 20 December 2018 |
| Docket Number | CIVIL ACTION NO. 18-892 |
| Parties | SIMON CAMPBELL, and PENNSYLVANIANS FOR UNION REFORM, Plaintiffs, v. PENNSYLVANIA SCHOOL BOARDS ASSOCIATION, MICHAEL FACCINETTO, DAVID HUTCHINSON, OTTO W. VOIT, III, KATHY SWOPE, LAWRENCE FEINBERG, ERIC WOLFGANG, DANIEL O'KEEFE, DARRYL SCHAFER, THOMAS KEREK, and LYNN FOLTZ, in their individual capacities, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
MEMORANDUM
Plaintiffs Simon Campbell and Pennsylvanians for Union Reform brought this action against defendant Pennsylvania School Boards Association, alleging retaliation for the exercise of their First Amendment rights. On August 23, 2018, the Court granted defendants' Motion for Summary Judgment and entered judgment in favor of defendants. Presently before the Court is defendants' Motion for the Imposition of Sanctions against Jacob C. Cohn, plaintiffs' counsel. For the foregoing reasons, the Court denies that part of the Motion seeking disqualification, reprimands Cohn for his conduct and grants the Motion to that effect, and grants that part of the Motion seeking an award of attorneys' fees and costs.
Plaintiff Simon Campbell founded plaintiff Pennsylvanians for Union Reform, a non-profit advocacy group that opposes compulsory unions and promotes government transparency. Defendant Pennsylvania School Boards Association ("PSBA") is a non-profit association of public school entities and their school boards. The overwhelming majority of Pennsylvania public school districts are members of PSBA. The individual defendants in this case were the voting members of the PSBA Governing Board at all relevant times, who also served as school board directors for various school district members of PSBA. See Jt. Stip., ECF No. 50, ¶¶ 25-34.
In March 2017, plaintiffs sent a Right to Know Law ("RTKL") request to public school agencies in the state, seeking contact information for certain school district employees and public employee union representatives. In May 2017, Campbell sent a second RTKL request to approximately 600 PSBA government entity members. PSBA's attorneys emailed PSBA members, advising them to respond to some portions of plaintiffs' requests and not to others. Thereafter, plaintiffs obtained, and published on their websites, copies of these emails and an image of PSBA Executive Director, Nathan Mains, along with commentary criticizing PSBA. Michael Levin, who was serving as outside general counsel for PSBA, wrote to Campbell, asking him to remove the image of Mains.
Because of plaintiffs' conduct, the PSBA Board, composed of the individual defendants, voted unanimously to authorize a suit against plaintiffs. PSBA filed a suit in the Court of Common Pleas of Cumberland County, Pennsylvania, on June 17, 2017, asserting claims ofdefamation, tortious interference with contractual relations, and abuse of process. On February 28, 2018, plaintiffs filed suit in this Court, alleging that the state suit was filed in retaliation for plaintiffs' exercise of their First Amendment rights. On June 29, 2018, defendants filed a Motion for Summary Judgment (ECF No. 32). On July 20, 2018, defendants filed a Motion for the Imposition of Sanctions against plaintiffs' counsel, Jacob C. Cohn, for violations of the Pennsylvania Rules of Professional Conduct, which is presently before the Court. By Order dated August 23, 2018, the Court granted the Motion for Summary Judgment and entered judgment in favor of defendants (ECF No. 75). That Order reserved jurisdiction over the pending motion for sanctions. The Court now turns to that motion.
Defendants aver that plaintiffs' counsel, Cohn, violated several of the Pennsylvania Rules of Professional Conduct, through (1) emails to Michael Kristofco, counsel for three defendants, disparaging defense counsel; (2) emails to school district solicitors, disparaging defense counsel and threatening suit against the school districts; (3) deposition questions asserting defense counsel failed to communicate with defendants about service of process and settlements; and (4) deposition questions negatively portraying Bochetto & Lentz, PSBA's counsel in the state suit. See Defs. Mem. Supp. Mot. Sanctions 3; Defs. Reply Plts. Br. Disqual. 2.
Michael Kristofco was retained to represent defendants Otto W. Voit, III; Lynn Foltz; and Darryl Schafer during settlement discussions. Ex. D-174, at 3.3 Kristofco emailed Cohn on April 12, 2018, to introduce himself and to schedule a phone call to discuss settlement. Id. Cohnrequested that these discussions be kept confidential from defense counsel Michael Levin. Defs. Reply Disqual. 3.
From April 13 to May 11, 2018, Cohn and Kristofco exchanged emails in which Cohn criticized defense counsel. For example, Cohn told Kristofco that his clients should seek independent counsel, because Levin was conflicted. See, e.g., Ex. D-175, at 1 (April 13); Ex. D-177, at 1 (April 26); Ex. D-178, at 1 (May 1); Ex. D-179, at 1 (May 3). Cohn asserted that defense counsel was prejudicing defendants through their representation. See, e.g., Ex. D-177, at 1; Ex. D-179, at 1. In one email, Cohn stated, Ex. D-176, at 1 (April 20). In another, he averred that one defense attorney "had trouble wrapping his head around" one of Cohn's arguments. Ex. D-178, at 1. Finally, he asked Kristofco to consider whether his clients "would be better served by having an unconflicted counsel who has even the remotest idea of what they are talking about when it comes to constitutional law." Ex. D-180, at 1 (May 11).
After the depositions of several defendants, at which Cohn inquired about Kristofco's conduct, Cohn criticized Kristofco's lawyering, emailing him a portion of a deposition and telling him to send the transcript to his firm's professional responsibility partner "for appropriate handling and reporting." Ex. D-181, at 1-2 (June 5).
From May 13 to June 23, 2018, Cohn sent a series of emails to the solicitors of the school districts for which the individual defendants were school board directors. See Exs. D-39 (May 13), D-40 (May 15), D-55 (May 16), D-57 (May 18), D-58 (May 29), D-59, D-60 (May 31), D-80 (June 23). In those emails, he argued that the school districts were jointly and severally liable to Campbell in damages as a result of the individual defendants' vote to authorize a suit againstCampbell. See, e.g., Ex. D-39, at 2-3; Ex. D-40, at 1-2; Ex. D-57, at 1; Ex. D-58, at 1; Ex. D-59, at 1; Ex. D-60, at 1-2; Ex. D-80, at 1-2. Cohn also stated that until the school districts acted either to remove their respective directors from PSBA's Governing Board or to make PSBA dismiss the state suit, they were increasing their exposure for damages and attorneys' fees. See, e.g., Ex. D-39, at 2-3; Ex. D-40, at 1-2; Ex. D-57, at 1; Ex. D-59, at 1; Ex. D-60, at 1; Ex. D-80, at 2. Cohn told the solicitors that districts who followed his instructions could "expect to be able to negotiate far better settlement terms" than those districts who did not act. See Ex. D-39, at 3.
In these emails, Cohn also disparaged the quality of defense counsel's representation. In one email, Cohn stated, Ex. D-40, at 1. Cohn encouraged the solicitors to evaluate "the advisability of permitting [Levin] to continue representing" defendants and stated Levin's "nonsensical filings and obstructionist discovery tactics" were increasing attorneys' fees and costs. Id. at 2. In an email to a solicitor, Cohn described Levin as providing "exceedingly bad advice" and asserted that he was "motivated by utter hatred of [Campbell]." Ex. D-59, at 3. In an email to another solicitor, Cohn described defense counsel Susan Wiener as "literally clueless." Ex. D-60, at 1.
Cohn did not copy defense counsel on any of these emails. Defs. Mem. Mot. 17. He also acknowledged that his emails to the school district solicitors were being forwarded to PSBA. See D-55, at 1. In response, he threatened that the school districts of those solicitors who forwarded the emails "will not be looked upon favorably in settlement discussions as a result of this breach of 'etiquette.'" Id.
In his depositions of defendants Voit and Schafer, Cohn further criticized defense counsel. Cohn told Voit, "You might want to get your own independent counsel who does not have a conflict of interest with respect to the representation of PSBA." Ex. D-203, at 48:6-9.
Cohn questioned Schafer at his deposition about whether Levin communicated with him regarding service of process. For example, Cohn asked, "[W]hen PSBA's counsel, Michael Levin, informed me that he was authorized to accept service on your behalf, you had not, in fact, been told you had been sued, and had not, in fact, had an opportunity to give him that permission; is that correct?" Ex. D-204, at 80:24-81:6. Schafer replied that they had not discussed service. Id. at 82:24.
During depositions of both Voit and Schafer, Cohn asked whether they had discussed settlement with defense counsel. Deposing Voit, Cohn asked, Ex. D-203, at 47:3-10. Deposing Schafer, Cohn asked, "Was it your intention to prohibit an insurance company from paying money to settle your exposure in this lawsuit on your behalf?" to which Schafer replied, "No." Ex. D-204, at 88:17-21. Cohn went on to tell...
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