Hammond v. City of Junction City, Kansas

• Decision Date: 10 July 2001
• Docket Number: No. CIV. A. 00-2146-JWL.,CIV. A. 00-2146-JWL.
• Citation: 167 F.Supp.2d 1271
• Parties: Marcus R. HAMMOND, Sr., Plaintiff, v. CITY OF JUNCTION CITY, KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

167 F.Supp.2d 1271

Marcus R. HAMMOND, Sr., Plaintiff, v. CITY OF JUNCTION CITY, KANSAS, et al., Defendants.

No. CIV. A. 00-2146-JWL.

United States District Court, D. Kansas.

July 10, 2001.

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Denise M. Anderson, Kansas City, MO, Glenn B. Brown, Anderson & Assoc., LLC, Kansas City, MO, for Plaintiff.

Rebecca McGinnis, Michael A. Williams, Lathrop & Gage, L.C., Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

WAXSE, United States Magistrate Judge.

This matter is before the Court on Defendants' Motion for Protective Order (doc. 31). The parties have submitted briefs, and an evidentiary hearing was held on April 3, 2001. Plaintiff appeared through counsel Denise Anderson and Glenn Brown. Defendants appeared through counsel Rebecca McGinnis. Defendant City of Junction City, Kansas (the "City") also appeared through its representative, City Manager Rodney Barnes.

I. Nature of the Matter Before the Court

This is an employment discrimination case, which Plaintiff brings on behalf of himself and various present and past African American employees of the City. Plaintiff has yet to file his motion for class action determination, and, thus, the action has yet to be certified as a class action.

Defendants contend that at least one of Plaintiff's counsel has had improper ex parte contacts about this case with Al Hope, Sr., the Director of Human Relations for the City. Defendants contend that Mr. Hope is a managerial employee of the City and that the contacts were in violation of Kansas Rule of Professional Conduct 4.2,¹ which prohibits, inter alia, attorneys from engaging in certain ex parte communications with employees of a party organization who have managerial responsibilities on behalf of the organization.

Plaintiff's counsel, Glenn Brown and Denise Anderson, do not deny that they have had ex parte communications with Mr. Hope. Plaintiff's counsel do, however, deny that Mr. Hope is a managerial employee or that he otherwise falls within the scope of Rule 4.2. They further deny that any of the communications they had with Mr. Hope were communications about the "subject of the representation," as that term is used in Rule 4.2. They assert that the ex parte communications they had with Mr. Hope were initiated by Mr. Hope out of his desire to have them represent him in connection with his individual claims of employment discrimination against the City. Mr. Hope, who is African American, is a potential member of the putative class and has been identified by Plaintiff's counsel as a potential class representative.

Defendants move for a protective order to prevent Plaintiff's counsel from having any further ex parte discussions with Mr. Hope or with any other managerial employee of the City. They also request that the Court exclude from evidence any information that Plaintiff's counsel obtained through the ex parte discussions. In addition, they request that Plaintiff's counsel be disqualified from representing Plaintiff or any class members in this case.

The Court has examined the issues and the evidence presented. As is discussed in detail below, the Court holds, based on the testimony given and the exhibits provided at the April 3, 2001 hearing, that Plaintiff's counsel had ex parte communications with Mr. Hope in violation of Kansas Rule of Professional Conduct 4.2 and the rules of this Court. The Court will grant Defendant's Motion for Protective Order in significant part.

II. Procedural Background

Plaintiff brings this employment discrimination action against the City and various past and present City officials. He has filed the action on behalf of himself and current and former African-American employees of the City. The Complaint alleges that Defendants have discriminated against the employees on the basis of race in assignments, promotions, compensation, and training, and in the terms and conditions of employment. Complaint, ¶ 33 (doc. 1). Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, as amended; the Kansas Acts Against Discrimination; and 42 U.S.C. §§ 1981, 1983, 1985, and 1986. The parties have conducted discovery relating to class issues.

On March 2, 2001, the Court set the instant Motion for Protective Order for hearing and stayed all deadlines contained in the Scheduling Order, including the March 31, 2001 deadline for filing the motion for class certification. See Doc. 36. The evidentiary hearing was held on April 3, 2001.

III. Duty to Confer

Defendants' motion is entitled "Motion for Protective Order" and seeks a protective order pursuant to Fed.R.Civ.P. 26(c). Plaintiff asks the Court to summarily deny Defendants' Motion because Defendants failed to confer as required by Rule 26(c) and D. Kan. Rule 26.2. The Court does not find that conferring is required in this case, as it holds that Rule 26(c) is inapplicable. Rule 26(c) relates only to discovery and disclosures and "does not authorize protective orders to regulate the conduct of parties and counsel in their collateral investigations independent of discovery and disclosure." Turnbull v. Topeka State Hosp., 185 F.R.D. 645, 651 (D.Kan.1999). The Court nevertheless has the power to issue an order to direct the conduct of counsel and to require counsel's adherence to applicable disciplinary and ethical rules. Id. The Court will therefore consider the Motion.

IV. Standard for Determining Whether to Limit Class Counsel from Communicating with a Potential Class Member

This case presents special issues because it involves a putative class action. The United States Supreme Court has set forth a special standard for addressing when a court should grant an order limiting communications between counsel and potential class members. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). According to Gulf Oil, an order limiting communications between class counsel and potential class members must be "based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties." Id., 452 U.S. at 101, 101 S.Ct. 2193. The record must show the particular abuses that have occurred or that are threatened, and the court's analysis "should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances." Id. at 102, 101 S.Ct. 2193. In making its determination, the court must take into account "that the rules of ethics properly impose restraints on some forms of expression." Id. at 104, n. 21, 101 S.Ct. 2193 (citing ABA Code of Professional Responsibility DR 7-104).²

With this standard in mind, the Court will proceed to make its findings of fact and conclusions of law.

V. Findings of Fact

Plaintiff has submitted the affidavits of his counsel, Glenn Brown and Denise Anderson. The affidavits set forth the circumstances under which the communications between Mr. Hope, Mr. Brown, and Ms. Anderson took place and explain the substance of those communications. At the evidentiary hearing, the Court heard testimony from Mr. Hope regarding his job duties and employment with the City. The Court also heard testimony regarding Mr. Hope's job duties and employment from two City employees: (1) Rodney Barnes, the City Manager; and (2) Tricia Gowen, the City's Director of Administrative Services.

The Court also has before it Plaintiff's Motion for Extension of Time to File Motion for Class Certification (hereinafter referred to as "Motion for Extension of Time") (doc. 28).³ The motion indicates that Plaintiff's counsel conferred with Al Hope, Sr., on at least two occasions and sets forth certain information that Plaintiff's attorneys claim to have learned from Mr. Hope.

Based on the affidavits of Glenn Brown and Denise Anderson, the evidence presented at the April 3, 2001 hearing, and the matters pled in the above-cited Motion for Extension of Time, the Court makes the following factual findings.

A. Communications Between Plaintiff's Counsel and Sr., and the Information Obtained

1. In early December 2000, a person identifying himself as Al Hope called the law firm of Plaintiff's counsel and asked to speak to counsel Glenn Brown. Because Mr. Brown was unavailable, the receptionist took a message. Brown Aff., ¶ 5, attached as Ex. A to doc. 32. Mr. Brown did not return Mr. Hope's call because he knew that Mr. Hope worked in the City's Human Resources Department and he was unable to conclusively determine whether Mr. Hope was a managerial employee. Id., ¶ 6.

2. Mr. Hope called Mr. Brown again, toward the end of January 2001. Mr. Hope asked Mr. Brown if he would represent him in a race discrimination lawsuit he wanted to file against the City. Mr. Brown informed Mr. Hope that he represented Mr. Hammond in this case and that he (Mr. Hope) might be a member of the class action, if the Court certified the matter. Id., ¶ 8. Mr. Hope and Mr. Brown "discussed generally his rights and ability to be represented as an individual or to elect not to be a member of this class action." Id. In response, Mr. Hope "stated he was aware of this case and our services and understood fully the potential conflict of interest." Id.

3. During this telephone call, Mr. Brown told Mr. Hope about his concerns that he was a City employee with managerial responsibility. Mr. Hope informed Mr. Brown that he was employed by the City as the Human Relations Director and that he reported to the City Manager. He stated that during his entire period of employment with the City (beginning in 1995) he served as the City's "EEO" and as the Secretary for the Human Relations Board. He explained that he was and is "responsible for areas such as recruitment, employee and labor relations, safety and workers compensation programs, and investigating complaints of discrimination." Id., ¶ 9. He stated that despite his current title, "he had...