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Lassiter v. Hidalgo Medical Services

United States District Court, D. New Mexico

March 13, 2018



          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before the Court on Defendant Hidalgo Medical Services' Motion for Protective Order and to Disqualify Counsel [Doc. 66], filed on January 10, 2018. Plaintiff responded on January 17, 2018. [Doc. 70]. Defendant replied on January 31, 2018. [Doc. 74]. The Court heard argument from the parties at a hearing on the motion on March 1, 2018. Having considered the briefing, oral argument, relevant portions of the record, and relevant authorities, and being otherwise fully advised in the premises, the Court finds that Defendant's motion is not well-taken and will be DENIED.


         In this action, Plaintiff sues her former employer, Hidalgo Medical Services (“HMS”), and its Chief Executive Officer (“CEO”), Dan Otero, for sexual harassment and retaliation. Plaintiff was the Chief Operations Officer of HMS. She alleges that Defendant Otero sexually harassed her and ultimately retaliated against her by terminating her employment when she rejected his advances. Plaintiff alleges violation of Title VII of the Civil Rights Act of 1964 and the New Mexico Human Rights Act, among other related claims. See [Doc. 1].

         In the course of the litigation and ongoing discovery practice, Plaintiff's counsel spoke to three current HMS employees outside the presence of Defendant's counsel: George Craig, the former Chief Information Officer and current network administrator; Jessica MacArthur, a clinic coordinator; and Michelle Molina, a billing clerk. [Doc. 66] at 5-6; [Doc. 70] at 1. Mr. Craig and Ms. Molina contacted Plaintiff's counsel, and Plaintiff's counsel initiated contact with Ms. MacArthur. Plaintiff's counsel secured affidavits from Mr. Craig and Ms. MacArthur following their conversations. See [Doc. 66-6]. Defense counsel apparently learned of these communications when Plaintiff's counsel submitted the affidavits as part of their supplemental Initial Disclosures on December 31, 2017. [Doc. 66] at 5; [Doc. 66-6].

         Defendant contends that Mr. Craig and Ms. MacArthur are managerial employees of HMS. [Doc. 66]. Thus, Defendant claims, they are “represented persons” for the purposes of Rule 16-402 NMRA, and Plaintiff's counsel's communications with them constitute unauthorized ex parte communications in violation of that rule. Defendant requests that, as a sanction for the violation, Plaintiff's counsel be disqualified from any further involvement in the case. Defendant further requests that the affidavits be struck from the record and that several further remedial steps be ordered. Id. at 2-3. Plaintiff maintains, as an initial matter, that any communications with represented persons were not “knowing” in the sense required by Rule 16-402. [Doc. 70]. That is, Plaintiff's counsel believed that Mr. Craig and Ms. MacArthur were not represented persons subject to the rule, because they told Plaintiff's counsel so. Mr. Craig, Ms. MacArthur, and Ms. Molina all said that they had been told by HMS's counsel that they were not represented. And it was Defendant Otero who told Mr. Craig the name of Plaintiff's counsel. Plaintiff argues this shows, at the very least, that there was no knowing communication with represented persons. Id. at 9-12. Plaintiff even suggests that defense counsel implicitly consented to the communications. Plaintiff further argues that Mr. Craig and Ms. MacArthur do not qualify as managerial employees of HMS in the first place, such that Rule 16-402 is not implicated. Id. at 13-19.

         Legal Standards

         Motions to disqualify are governed by two sources of law. See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994). First, attorneys are bound by the local rules of the court in which they appear. Id. In this District, the “Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico apply except as otherwise provided by local rule or by Court order.” D.N.M.LR-Civ. 83.9; see also Cole, 43 F.3d at 1383. Second, federal standards also apply, and “motions to disqualify are governed by the ethical rules announced by the national profession and considered in light of the public interest and the litigants' rights.” Cole, 43 F.3d at 1383 (internal quotations omitted). The moving party bears the burden of establishing that disqualification is warranted. Rubio v. BNSF Ry. Co., 548 F.Supp.2d 1220, 1222 (D.N.M. 2008).

         Rule 16-402 of the New Mexico Rules of Professional Conduct governs communications with persons represented by counsel. It provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Except for persons having a managerial responsibility on behalf of the organization, an attorney is not prohibited from communicating directly with employees of a corporation, partnership or other entity about the subject matter of the representation even though the corporation, partnership or entity itself is represented by counsel.


         The parties do not dispute that Plaintiff's counsel communicated with current employees of HMS concerning the subject of the litigation, namely, Plaintiff's alleged harassment. The parties do dispute whether the communications violated Rule 16-402. Specifically, they dispute (1) whether Mr. Craig and Ms. MacArthur were “persons having a managerial responsibility on behalf of the organization, ” (2) whether Plaintiff's counsel “knew” them to be so represented, and (3) whether counsel for Defendant did not otherwise consent to the ex parte communications taking place. The Court finds that Defendant fails to show that Plaintiff's counsel violated Rule 16-402. The employees are not managerial employees and, even if they were, the communications were not “knowing” in the sense required for violation of the rule. Moreover, even assuming a violation did occur, Defendant does not show that disqualification is warranted as a sanction. The Court will not disqualify Plaintiff's counsel, nor order any other relief sought by Defendant.

         Mr. Craig and Ms. MacArthur do not qualify as managerial employees under Rule 16-402.

         Rule 16-402 prohibits attorneys from communicating directly with current employees of a represented organization where the employee has “a managerial responsibility on behalf of the organization.” The rule does not further define the term “managerial responsibility, ” nor have the New Mexico courts. However, without referring to “managerial responsibility” explicitly, the committee commentary to the rule provides additional guidance: “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” Rule 16-402 cmt. 8. Likewise, federal courts have supplied standards for making such a determination. In Hammond v. City of Junction City, a district court looked to the “common-sense definition of ‘manager'” in interpreting Kansas's analogous ethical rule and related commentary, finding that the employee in question had sufficient managerial responsibilities to so qualify. 167 F.Supp.2d 1271, ...

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