Johnson v. Board of County Com'rs for County of Fremont, No. 95-1075

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BRORBY and BARRETT; BRORBY
• Citation: 85 F.3d 489
• Parties: 68 Empl. Prac. Dec. P 44,092 Tammie JOHNSON, Elizabeth York, Judy O'Connor, Patricia Caudill, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF FREMONT; Bob Cheek, in his official capacity, Defendants. Cathy Greer, The Law Firm of Hall & Evans, Movants-Appellants.
• Docket Number: No. 95-1075
• Decision Date: 04 June 1996

Page 489

85 F.3d 489 68 Empl. Prac. Dec. P 44,092 Tammie JOHNSON, Elizabeth York, Judy O'Connor, Patricia
Caudill, Plaintiffs-Appellees,
v.
BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF FREMONT;
Bob Cheek, in his official capacity, Defendants.
Cathy Greer, The Law Firm of Hall & Evans, Movants-Appellants. No. 95-1075. United States Court of Appeals,
Tenth Circuit. June 4, 1996.
Rehearing Denied July 30, 1996.

Page 490

Richard C. LaFond, Terry Clausen, and Arnold M. Woods, of LaFond & Clausen, L.L.C., Denver, Colorado, for Plaintiffs-Appellees.

Cathy H. Greer, Alan Epstein, and Josh Marks, of Hall & Evans, L.L.C., Denver, Colorado, for Movants-Appellants.

Before BRORBY and BARRETT, Circuit Judges, and BRIMMER, ^* District Judge.

BRORBY, Circuit Judge.

Attorney Cathy Greer and the law firm of Hall & Evans appeal from an order finding that Attorney Greer violated the Colorado Rules of Professional Conduct by representing defendant Bob Cheek in his official capacity only. We affirm, although we apply a different analysis than the district court. ¹

I. Factual & Procedural Background

Mr. Cheek was at all relevant times sheriff of Fremont County, Colorado. While Mr. Cheek was serving as sheriff, four female employees of the Fremont County Sheriff's Department commenced actions against the

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Board of County Commissioners for the County of Fremont, claiming Mr. Cheek had sexually harassed them in violation of Title VII of the Civil Rights Act of 1964. The board answered, stating it had no legal responsibility for actions of the sheriff's department.

Plaintiffs filed amended complaints adding Mr. Cheek as a defendant to their Title VII claims. The caption listed Mr. Cheek as a defendant in his official capacity. Attorney Greer answered on behalf of Mr. Cheek in his official capacity as sheriff of Fremont County. On June 17, 1994, plaintiffs filed second amended complaints adding a claim under 42 U.S.C. § 1983, and naming Mr. Cheek as a defendant in both his official and individual capacities. These complaints alleged that Mr. Cheek's actions were taken "both inside and outside the scope of his authority." Mr. Cheek filed answers in his official capacity, asserting as a defense that "[t]he actions complained of by plaintiff[s] were not taken pursuant to any official custom[,] policy or practice."

On July 29, 1994, Mr. Cheek in his individual capacity and pro se, moved for an extension of time to answer because he was seeking declaratory relief from state court to determine whether the Board of County Commissioners would provide counsel to represent him in his individual capacity. The district court granted the extension.

On September 16, 1994, because the state court had not yet ruled, Mr. Cheek moved for a second extension of time to file an answer in his individual capacity. The district court denied the motion and ordered Attorney Greer to "show cause in writing ... why all pleadings filed on behalf of Mr. Cheek should not be stricken and under what legal authority [she] presumes to enter a limited appearance on behalf of a party of record."

Attorney Greer filed a response. She explained that there is a distinction between individual and official capacity suits in that in an official capacity suit, the real party in interest is the governmental entity whereas in an individual capacity suit, liability is sought to be imposed against the individual governmental officer. She stated there are two separate defendants--the government entity that employs Mr. Cheek (Mr. Cheek in his official capacity), and Mr. Cheek in his individual capacity. Further, as of January 1995, a successor to Mr. Cheek would be elected who would then hold the office of sheriff and be represented by counsel.

On October 3, 1994, Mr. Cheek, appearing pro se, answered the second amended complaints in his individual capacity. He adopted all of the assertions in the answer filed by Attorney Greer, and added the additional affirmative defense of qualified immunity with respect to the claim for relief under § 1983. ²

On October 19, 1994, Attorneys Theodore Halaby and Robert Liechty attempted to enter appearances for Mr. Cheek in his individual capacity. At the hearing held that day, the district court struck all entries of appearances, including Attorney Greer's, and gave Mr. Cheek an additional thirty days to answer the second amended complaint, either pro se or with an attorney or attorneys representing him in both his capacities.

In a subsequently issued published decision, the district court stated that, although a person may be sued in more than one capacity, that did not mean an attorney may limit his or her appearance to only one of those capacities. Johnson v. Board of County Comm'rs, 868 F.Supp. 1226, 1230 (D.Colo.1994). Reasoning that a party with an attorney of record may appear only through that attorney, the district court determined that by entering an appearance on behalf of Mr. Cheek in his official capacity, Attorney Greer precluded him from appearing pro se or from retaining other counsel for the individual capacity claims. Id. at 1230. The court concluded that by representing Mr. Cheek only in his official capacity, Attorney Greer left him exposed on the claims against him in his individual capacity and therefore violated Colorado Rules of Professional Conduct,

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Rule 1.1, which requires that a lawyer "provide competent representation to a client." Id. at 1231. While the court recognized that Colorado Rules of Professional Conduct, Rule 1.2(c) permits a lawyer to "limit the objectives of the representation if the client consents after consultation," it noted a client may not be asked to agree to representation so limited in scope as to violate Rule 1.1. Id.

In reaching its conclusion Attorney Greer had not satisfied her obligations under the Colorado Rules of Professional Conduct, the district court also made the following findings:

It is not clear who has requested Greer to represent Cheek. The record is silent on this matter. There is no indication that Cheek, whom Greer ostensibly represents, has demanded that his representation be bifurcated....

It is clear, however, that Greer has been instructed by someone not appearing before the court to...