United States District Court, D. New Mexico
ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE
ORDER AND TO DISQUALIFY COUNSEL
STEPHAN M. VIDMAR United States Magistrate Judge.
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.
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].
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].
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
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).
16-402 of the New Mexico Rules of Professional Conduct
governs communications with persons represented by counsel.
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.
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.
Craig and Ms. MacArthur do not qualify as managerial
employees under Rule 16-402.
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