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Henry v. City of Sherman

United States District Court, E.D. Texas, Sherman Division

December 8, 2017




         Pending before the Court is Defendant City of Sherman, Texas's (“the City”) Motion to Disqualify Plaintiff's Attorneys (Dkt. #25) and Motion to Stay Proceedings (Dkt. #18). Having reviewed the motions and the relevant pleadings, the Court finds the motions should be denied.


         Plaintiff Otis L. Henry (“Henry”) sued the City alleging violations of the Age Discrimination in Employment Act of 1967. Ronald R. Huff and Robert E. Richardson of the Richardson Law Firm represent Henry in this action (“Plaintiff's Attorneys”). Wayne Blackwell (“Blackwell”), an employee of the City since 2000 and in the Human Resources Department since 2005, is also represented by Plaintiff's Attorneys in a separate action in which Blackwell makes an Equal Employment Opportunity Commission (“EEOC”) complaint. While Blackwell was working in the City's Human Resources Department, Henry was notified on December 6, 2016, that he was terminated with an effective termination date of January 1, 2017. Even though Blackwell was in the Human Resources Department at the time, Blackwell discovered that the City dismissed Henry after it happened. Blackwell was not part of the decision-making process to fire Henry and was intentionally made ignorant of the events that took place.

         After Henry was fired, Blackwell called Henry to find out what happened. After that call, Blackwell looked at Zach Flores's computer. Zach Flores was the Human Resources Manager and was involved in the investigation that led to Henry's termination. Blackwell informed Henry, before January 1, 2017, that after he checked Flores's computer he could not find anything regarding the investigation.

         The City recently discovered that Blackwell forwarded an email to Plaintiff's Attorneys on September 28, 2017 regarding the City's restriction of his access to personnel records. The City also observed Blackwell shredding unidentified documents. The City placed Blackwell on administrative leave on October 19, 2017. After placed on leave, an employee of the City went to get Blackwell's phone and tablet, and observed that Blackwell wiped the devices. The City filed the present motions to stay and disqualify Plaintiff's Attorneys (Dkt. #18; Dkt. #25). Henry filed a response to both motions (Dkt. #27; Dkt. #28). The City filed its replies (Dkt. #29; Dkt. #30) and Henry filed a sur-reply to the motion to disqualify (Dkt. #31).


         The Fifth Circuit has “made clear that ‘disqualification cases are governed by state and national ethical standards adopted by the court.'” FDIC v .U.S. Fire Ins. Co., 50 F.3d 1304, 1311- 12 (5th Cir. 1995) (quoting In re Am. Airlines, Inc., 972 F.3d 605, 610 (5th Cir. 1992)). In the Fifth Circuit, when considering disqualification of an attorney, district courts generally rely upon the following: (1) the local rules in the district; (2) American Bar Association's (“ABA”) Model Rules of Professional Conduct; (3) the ABA's Model Code of Professional Responsibility; and (4) the state rules of conduct. Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001); Ayus v. Total Renal Care, Inc., 48 F.Supp.2d 714, 714 (S.D. Tex. 1999). Beyond the various rules and codes identified above, “[a] court should be conscious of its responsibility to preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests, which include the litigant's right to freely chosen counsel.” Woods v. Covington Cty. Bank, 537 F.2d 804, 810 (5th Cir. 1976) (citing Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 564-65 (2d Cir. 1973)).

         In the Eastern District, “the standards of professional conduct adopted as part of the Rules Governing the State Bar of Texas shall serve as a guide governing the obligations and responsibilities of all attorneys appearing in this court.” Eastern District of Texas, Local Rule AT-2. In Texas, disqualification is a “severe remedy.” NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989). Motions to disqualify are subject to an exacting standard both to protect a party's right to counsel of choice as well as to discourage the use of such motions as a “dilatory trial tactic.” Id.


         The City argues that Plaintiff's Attorneys should be disqualified because: (1) Plaintiff's Attorneys have violated the “No Contact Rule” by engaging in ex parte communication; and (2) Plaintiff's Attorneys' representation of Blackwell creates an appearance of impropriety. Henry responds that there is no violation and, even if a violation occurred, there is no prejudice.

         I. Ex Parte Communication

         The City argues that Plaintiff's Attorneys violated the “No Contact Rule, ” Texas Disciplinary Rule of Professional Conduct 4.02 and ABA Model Rule 4.2, by communicating with Blackwell. The City maintains that Blackwell is one of the people who should not be contacted under the rules because he was the Human Resources Director and had managerial authority, and his actions could be imputed to the City for civil liability. Henry maintains that Plaintiff's Attorneys are permitted to contact Blackwell under the Texas and ABA Model Rules of Professional Conduct.

         Texas Rule of Professional Conduct 4.02 states that while a lawyer is representing a client, “a lawyer shall not communicate . . . with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding the subject.” Tex. Disciplinary Rules Prof'l Conduct R. 4.02(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R. art. 10, §9). “This prohibition extends to certain ‘persons presently having managerial responsibility' in the organization [that relates to the subject of the representation] or ‘presently employed by' the organization” and can make the organization liable for the matter at issue. In re RSR Corp., 473 S.W.3d 775, 781 (Tex. 2015) (emphasis in original) (quoting Tex. Disciplinary Rules Prof'l Conduct R. 4.02(a)).[1] However, a lawyer is allowed to contact ...

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