Harter v. University of Indianapolis
| Decision Date | 23 April 1998 |
| Docket Number | No. IP 97-201-C G/H.,IP 97-201-C G/H. |
| Citation | 5 F.Supp.2d 657 |
| Parties | Greg HARTER, Plaintiff, v. UNIVERSITY OF INDIANAPOLIS, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Steven Caplin and Kelli Keller, Caplin Pehler Park & Tousley, Indianapolis, IN, for Plaintiff.
Kim F. Ebert and Ariane Schallwig Johnson, Locke Reynolds Boyd & Weisell, Indianapolis, IN, for Defendant.
ENTRY ON DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
This case presents an important practical question under the Americans with Disabilities Act (ADA) and the Rules of Professional Conduct for attorneys. The question is whether an attorney for a disabled employee should be disqualified from a lawsuit as a "necessary" witness based on her participation in the "interactive process" between employer and employee to find reasonable accommodations for the employee's disability. The parties and the court have not identified other decisions addressing this problem under the ADA. As explained below, the court concludes that disqualification of plaintiff's attorney is not warranted in this case because she is not a truly "necessary" witness.
An employer can violate the ADA by failing to provide "reasonable accommodation" to an employee with a disability. 42 U.S.C. § 12112(b)(5)(A). Identifying steps that might reasonably accommodate an employee's disability often requires information both from the employer about its needs and from the employee about his or her abilities and limitations. The Seventh Circuit has explained that the ADA envisions an "interactive process" that requires participation by both the employer and the employee to identify reasonable accommodations. Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996); see also 29 C.F.R. § 1630.2(o)(3) (1995) (); 29 C.F.R. Pt. 1630, App. ( 29 C.F.R. § 1630.9) ( ).
In this case, plaintiff Greg Harter employed attorney Kelli Keller to advise him and speak for him in that "interactive process" with his employer, defendant University of Indianapolis. After that process broke down, Harter filed suit under the ADA. Keller has continued to represent him in this lawsuit. The university has moved to disqualify both attorney Keller and her entire law firm. The university argues that Keller's role in the negotiations over possible accommodations has made her a necessary witness at trial. The pretrial aspects of this case were referred to Magistrate Judge John Paul Godich, who granted the motion to disqualify attorney Keller but denied the motion to the extent it sought to disqualify her entire law firm. Pursuant to 28 U.S.C. § 636(b)(1)(A), both parties have filed objections to this decision. The university also has asked the court to reach an issue that Judge Godich did not decide, whether Harter has waived any attorney-client privilege concerning communications with attorney Keller about the accommodation process. As explained below, the court concludes that neither attorney Keller nor her law firm should be disqualified. On the privilege question, the court concludes that Harter, by filing a lawsuit alleging that his employer failed to reasonably accommodate his disabilities, did not waive the attorney-client privilege as to confidential communications that otherwise are protected by the privilege.
Plaintiff Harter was employed by the University of Indianapolis as a skilled maintenance employee doing electrical and plumbing work. In June 1994, Harter hurt his back on the job. He continued working with some restrictions. In June 1995, according to Harter, he reinjured himself but continued to work with some lifting restrictions. On August 25, 1995, Harter told the university that he was completely unable to work. He never returned to work. In January 1996, Harter filed for total disability benefits, but later in 1996 he was released to return to work with some physical restrictions after a rehabilitation program. On July 10, 1996, Harter wrote to the head of the university's maintenance department to say that he had been released for work but with significant physical restrictions. His letter referred to the ADA and requested accommodation. Ex. A. On August 1, 1996, the university's treasurer and business manager, Ken Hottell, wrote back to Harter explaining that the university needed current, detailed information about his medical restrictions. Ex. B. That same day, the university sent a letter to Harter's doctor describing his job duties and asking for specific information about his medical restrictions as applied to his work duties. Ex. C.
The university received a response dated August 12, 1996, from attorney Kelli Keller of the Indianapolis law firm of Caplin Pehler Park & Tousley. Keller wrote that Harter had retained the firm "to advise and represent him regarding the legal problems arising out of his termination by the University." Keller asked the university to direct future communications on non-routine matters through her rather than directly to Harter. The letter (obviously a form letter) also advised the university about other routine aspects of employment litigation and asked for a copy of Harter's personnel file. Ex. D. A lawyer for the university, Mark Sifferlen of the law firm of Baker & Daniels, responded to Keller's letter on August 28, 1996. He wrote that the university had not terminated Harter and was trying to obtain information that would allow him to return to work. He also requested that any communications from attorney Keller be directed to him, but his letter to Keller also urged Harter to communicate directly with the university. Ex. E.
Over the next five months, attorney Keller and attorney Sifferlen exchanged a series of letters concerning Harter's situation. Of particular interest for present purposes are comments in Keller's letter of September 4, 1996, that she was "not yet at liberty to discuss the details of my client's complaint...." Ex. F. Also, the correspondence indicates that Hottell contacted Harter directly and scheduled a meeting with him, which Harter canceled an hour later after consulting with attorney Keller. Ex. G; see also Ex. H (letter from Keller to Sifferlen asserting that Hottell "forced" Harter to make an appointment to meet without his attorney). Later correspondence included a letter from attorney Keller proposing that the university reemploy Harter with full benefits and an assurance that he could be fired only for just cause, plus payment of $250,000 for "current lost wages, pain and suffering." Ex. L. The university rejected the proposal but forwarded information to Keller about other positions that might be available and appropriate for Harter. Ex. M. Without attempting at this time to attribute blame, suffice it to say that the communications broke down and Harter filed suit in February 1997.
Attorney Keller filed the complaint for Harter. The university hired a law firm other than Baker & Daniels to represent it in the lawsuit. Early in the lawsuit, the university suggested that Keller might be a necessary witness at trial and that she and her law firm might be disqualified from representing Harter. At the end of the hearing on the issue on January 26, 1998, Judge Godich stated his oral ruling disqualifying Keller but not her firm. He found that the mere possibility that Keller's testimony might be adverse to the plaintiff's case was not sufficient to require the firm to be disqualified at that time. Judge Godich also declined to address at that time the issue the university had raised about the possible waiver of attorney-client privilege. Judge Godich followed with a detailed written opinion explaining his decision.
Whether and when the same attorney may assist a disabled employee during the reasonable accommodation process and then represent the employee in a later lawsuit has significant practical effects for enforcement of rights under the ADA and for professional ethics. The issue affects the ability of both a disabled employee and an employer to consult counsel for advice under the ADA and to obtain and choose counsel if the employee decides to file a lawsuit under the ADA. See generally Doe v. Kohn, Nast & Graf, P.C., 862 F.Supp. 1310, 1316 (E.D.Pa.1994) (). If an attorney's participation in the reasonable accommodation process were enough to routinely disqualify an attorney from ADA litigation involving the same employee, that rule could seriously undermine the ability of both employees and small employers to obtain legal representation. Requiring parties to obtain two attorneys is burdensome and expensive. At the same time, the division in roles between attorney and witness is a vital and well established requirement of professional conduct. It plays an important part in maintaining both the appearance and the reality of fairness in court proceedings.
The first step in the analysis here is to understand the role of "reasonable accommodation" under the ADA. The court then turns to the problems presented when a client's attorney in a lawsuit may be called to testify by the opposing party, and whether and to what extent an employee may waive the attorney-client privilege by using an attorney in the reasonable accommodation process.
Unlike other federal employment discrimination laws, the ADA does not simply forbid discrimination on a...
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