Weeks v. Indep. School Dist. No. I-89

• Decision Date: 25 October 2000
• Docket Number: 98-6382,99-6239,Nos. 98-6293,I-89,s. 98-6293
• Citation: 230 F.3d 1201
• Parties: (10th Cir. 2000) H. MICHAEL WEEKS, Plaintiff-Appellant, v. INDEPENDENT SCHOOL DISTRICT NO., of Oklahoma County, Oklahoma, Board of Education, Defendant-Appellee, MARILYN D. BARRINGER; RICHARD B. WILKINSON, Attorneys-Appellants
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1201

230 F.3d 1201 (10th Cir. 2000)

H. MICHAEL WEEKS, Plaintiff-Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. I-89, of Oklahoma County, Oklahoma, Board of Education, Defendant-Appellee, MARILYN D. BARRINGER; RICHARD B. WILKINSON, Attorneys-Appellants.

Nos. 98-6293, 98-6382, 99-6239

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 25, 2000

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. CIV-96-1692-C) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Michael C. Salem, Norman, Oklahoma (Marilyn D. Barringer and Richard B. Wilkinson, Oklahoma City, Oklahoma, with him on the briefs), for Appellants.

Laura L. Homes and Timothy M. Melton of The Center for Education Law, Inc., Oklahoma City, Oklahoma, for Defendant-Appellee.

Before EBEL,Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRISCOE, Circuit Judge.

EBEL, Circuit Judge.

This case involves three companioned appeals by attorney Marilyn D. Barringer ("Barringer").¹ Barringer served as original counsel for H. Michael Weeks ("Weeks") in an action brought against Independent School District No. 89 ("School District"). Prior to trial, the district court entered an order disqualifying Barringer from further participation in the litigation because of improper ex parte communications. Weeks, with new counsel, subsequently prevailed on some of his claims. After the judgment, the district court granted a motion by the School District to reduce Weeks' award of costs to exclude costs for depositions connected with Barringer's ethical violations. The district court then awarded attorney fees to Weeks, but for an amount less than he had originally requested. Barringer appeals the disqualification ruling, the reduction in costs, and the amount of attorney fees the court awarded Weeks. We affirm the disqualification ruling, and we hold that Barringer lacks standing to appeal the reduction in costs and the amount of attorney fees.

I. BACKGROUND

A. Disqualification

Barringer represented Weeks, a former bus driver of the Oklahoma City Public Schools, in his claims against the School District under 1983, the Americans with Disabilities Act ("ADA"), Title VII, and the Fair Labor Standards Act ("FLSA"). During pretrial discovery, a dispute arose between the parties over the availability and relevance of certain information requested by Weeks relating to his FLSA claims for failure to pay him proper overtime compensation. The existence and relevance of the information was raised during Barringer's deposition of Marilyn Midgett ("Midgett"), an operations supervisor for the School District. On behalf of Weeks, Barringer subsequently filed a motion to compel discovery of certain documents, including documents referred to during Midgett's deposition. The district court denied the motion because the document request included information relating to a time period outside the relevant two-year period of limitations, and concerned information relating to employees other than the plaintiff. Barringer filed a motion to reconsider, and attached an affidavit from Midgett.

Through discussions during a settlement conference and through the affidavit of Midgett that was attached to the motion to reconsider the motion to compel discovery, the School District learned that Barringer had engaged in ex parte communications with Midgett. The School District also had information indicating that Barringer had engaged in similar communications with Michael Hix ("Hix"), Weeks' immediate supervisor, regarding matters relevant to Weeks' case. The School District had further learned that Barringer had begun to represent Midgett and was considering representing Hix. The School District thus filed a motion for a protective order to prohibit Weeks and Barringer from conducting ex parte communications with any of its present or former supervisory personnel, and a motion to exclude evidence obtained through any ex parte communications that may have already occurred. The School District argued that Barringer's conduct violated Rule 4.2 of the Oklahoma Rules of Professional Conduct,² which, in the case of an organization, prohibits communications with persons who have managerial responsibility for the organization that is the opposing party, with persons whose act or omission in connection with the matter can be imputed to the organization for purposes of liability, and with persons whose statement may constitute an admission on the part of the organization. The School District claimed that both Midgett and Hix were employees with whom communications were prohibited under Rule 4.2. Although Hix no longer worked for the School District when the motion for a protective order was filed, he had been employed with the School District at the time of the alleged ex parte communications.³ The School District asked that the court prohibit Barringer from contacting any of its present or former supervisory personnel, specifically Midgett and Hix, exclude any evidence obtained from Midgett and Hix, and strike Midgett and Hix as witnesses.

In response to the School District's motion, Barringer did not dispute that she engaged in ex parte communications with Midgett and Hix after they were identified as witnesses by the School District; rather, she contended that because both Midgett and Hix were "low-level supervisory employees" with no authority to make management decisions that bind the School District, ex parte communications with them were not prohibited under Rule 4.2. To support the assertion that Midgett and Hix lacked sufficient authority to speak on behalf of the School District, Barringer cited state statutes defining school "administrators" and describing the management structure for local school districts. Barringer also cited policy justifications as to why such communications should be allowed in this instance.

The district court found a violation of Rule 4.2 and sua sponte disqualified Barringer from further participation in the case as counsel for Weeks and prohibited her from engaging in ex parte communications with Midgett and Hix. The court also prohibited Weeks from using any evidence obtained through ex parte communications with Hix and Midgett at trial, permitting only their deposition testimony to be introduced. The court recited the Oklahoma Supreme Court's interpretation of Rule 4.2 as applying "only to those employees who have the legal authority to bind a corporation in a legal evidentiary sense, i.e., those employees who have 'speaking authority' for the corporation." The court was not persuaded by Barringer's citation of the state statutes on school administrators, and found that "[f]rom the materials provided to the Court, it clearly appears that plaintiff intends to use Midgett and Hix as individuals with 'speaking authority' for the defendant." Stating that "it is the attorney Marilyn Barringer and not the plaintiff [Weeks] who should bear the impact of Barringer's conduct," the court found disqualification of Barringer the proper remedy for the violation.

In a brief conference at the bench immediately after the court issued its disqualification order, attorney Wilkinson admitted that he also had consulted with both Midgett and Hix, and, pursuant to the court's order, should also be prohibited from further representation of Weeks. The court then directed that the previous order disqualifying Barringer be extended to include Wilkinson. The case was then stricken from the November 1997 docket and reset for a future trial docket.

On November 20, 1997, Barringer and Wilkinson filed a motion to reconsider the disqualification order and request for alternative relief. In their brief, they again raised the issue of the status of Hix and Midgett as employees with "speaking authority" to bind the School District. Barringer and Wilkinson claimed that because Midgett and Hix were not listed on an organizational chart, were included in the support personnel "bargaining unit," as defined by Okla. Stat. tit. 70, 509.2(A)(3), and were not included as "supervisory" employees in the Support Personnel Report submitted by the School District to the Oklahoma State Department of Education, they could not be considered "supervisors" under any standard. They supported their argument by drawing an analogy to the Labor Management Relations Act (LMRA), which defines "employee" to exclude supervisors, see 29 U.S.C. 152(3), and, according to them, defines "supervisor" in a way that does not include the duties and responsibilities of either Midgett or Hix, see 29 U.S.C. 152(11).

In the event that the court denied their motion to reconsider, Barringer and Wilkinson asked that the court certify to the Oklahoma Supreme Court the question of whether uncertified support personnel included within a collective bargaining agreement negotiated for a support employee bargaining unit are part of the "control group" contemplated by Rule 4.2. Alternately, they asked that the court permit an interlocutory appeal to the Tenth Circuit. The district court denied the motion to reconsider and request for alternate relief, stating that although disqualification is an extreme sanction, it was appropriate under these facts.

Prior to denying Barringer and Wilkinson's motion to reconsider, the district court granted the School District's motion for summary judgment as to Weeks' Title VII claim, and granted in part and denied in part its motion for partial summary judgment on the issue of FLSA overtime pay. After the disqualification of Barringer and Wilkinson, Weeks obtained new counsel and, after the presentation of Weeks' case in chief, the trial court granted the School District's motion for judgment as a matter of law with respect to Weeks' ADA claim. The jury returned a judgment in favor of Weeks on his due process and FLSA claims, and he was awarded damages in the amount of $20,000 for his due process claim and $1,800 for his FLSA claim. Weeks did...