MARY FISHER, ET AL.
THE TOWN OF BOYCE, ET AL.
WRIT FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF
RAPIDES, NO. 255, 497 HONORABLE WILLIAM GREGORY BEARD,
Randall B. Keiser Jeremy C. Cedars Keiser Law Firm, P.L.C.
COUNSEL FOR DEFENDANTS/APPLICANTS: Mayor Alma Moore Town of
Bradley C. Myers Amanda M. Collura-Day Kean Miller LLP
COUNSEL FOR AMICUS CURIAE LOUISIANA: Municipal Association
composed of John D. Saunders, Elizabeth A. Pickett, and
Shannon J. Gremillion, Judges.
GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED IN PART.
D. SAUNDERS JUDGE.
the Town of Boyce and Mayor Alma Moore, seek supervisory writ
from the judgment of the Ninth Judicial District Court,
Parish of Rapides, the Honorable Greg Beard, presiding, which
granted in part and denied in part Relators' motion for
matter arises out of a suit for the alleged improper
termination of plaintiffs, Mary Fisher and Robert Hamilton,
from their employment with the Town of Boyce, by the
unilateral actions of Mayor Moore taken "without
obtaining the recommendation or consent of Police Chief Eddie
Washington or the action of the Board of Aldermen for the
Town of Boyce." Police Chief Washington has since
intervened and asserted plaintiffs' rights. In response,
Relators filed a motion for summary judgment, asserting
plaintiffs could not be improperly terminated, as they had
not been properly hired. As part of their opposition thereto,
plaintiffs' counsel, Daniel Broussard, obtained and filed
the affidavit of Leonard Ray Lacour, a member of the Boyce
Town Council. Prior to obtaining the affidavit, the Town
Council had met in executive session twice to discuss this
litigation, and Relators' counsel had also discussed the
matter with Lacour. Relators, therefore, alleged the
communication between Lacour and plaintiffs' counsel
violated Rule 4.2 of the Louisiana Rules of Professional
Conduct (Rule 4.2) because it was made outside the presence
and without the consent of defense counsel. The trial court
struck the affidavit from the summary judgment proceedings
and denied summary judgment, but declined to exclude
Lacour's testimony at trial. Relators filed a motion for
protective order, requesting the trial court (1) preclude
plaintiffs, their attorney, and/or agents from meeting with
any town official wherein the subject matter of this
litigation is discussed, and (2) exclude Lacour's
affidavit and testimony/evidence. See Application,
p. 34. Plaintiffs opposed the motion, arguing that Fisher, a
"constituent, " had a right to talk to Lacour, but
did not file their own motion for protective order.
trial court denied the motion in part "insofar as it
seeks to exclude Ray Lacour as a witness" and granted
the motion in part, ordering: (1) defense counsel may
communicate with Mayor Moore; (2) plaintiffs' counsel may
communicate directly with Police Chief Washington, "as
he was and, depending upon the ruling of the Third Circuit,
may be a plaintiff in this matter"; but (3) neither
counsel for plaintiffs nor defendants "shall have
further direct contact with any Alderman of the Town of
Boyce, or any other Town of Boyce employee with managerial
authority." See Application, p. 85. Relators
now seek review of the trial court's ruling, particularly
as to its refusal to exclude Lacour as a witness and its
prohibiting defense counsel from communicating with the Town
that this suit involves the res nova issue of
whether Louisiana law requires exclusion of evidence and
testimony from an officer of a represented organization who
was improperly contacted by opposing counsel in violation of
Rule 4.2. On June 26, 2017, this court stayed the August 27,
2017 bench trial and ordered additional briefing. Plaintiffs
failed to file any opposition brief in this court.
proper procedural vehicle to contest an interlocutory
judgment that does not cause irreparable harm is an
application for supervisory writs. See La. C.C.P.
arts. 2087 and 2201." Brown v. Sanders,
06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933.
But see La.Code Civ.P. art. 2083, comment (b),
"Irreparable injury continues to be an important (but
not exclusive) ingredient in an application for supervisory
writs." (Citation omitted.) A court of appeal has
plenary power to exercise supervisory jurisdiction over trial
courts and may do so at any time, according to the discretion
of the court. When the trial court's ruling is arguably
incorrect, a reversal will terminate the litigation, and
there is no dispute of fact to be resolved, judicial
efficiency and fundamental fairness to the litigants dictate
that the merits of the application for supervisory writs
should be decided in an attempt to avoid the waste of time
and expense of a possibly useless future trial on the merits.
Herlitz Const. Co., Inc. v. Hotel Inv'rs of New
Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam).
to the general rules of discovery, a court has the authority
to grant a protective order "for good cause shown"
if justice requires such an order "to protect a party or
person from annoyance, embarrassment, oppression or undue
burden or expense." La.Code Civ.P. art. 1426. The
granting or denial of a protective order and the extent of
protection are within the sound discretion of the trial
court. Boyd v. St. Paul Fire & Marine Ins. Co.,
99-1820 (La.App. 3 Cir. 12/20/00), 775 So.2d 649, writ
denied, 01-220 (La. 3/23/01), 788 So.2d 430. An
appellate court will not modify or reverse the trial court in
such matters absent a showing of abuse of discretion.
Doucet v. Crowley Mfg., 02-1065 (La.App. 3 Cir.
3/19/03), 846 So.2d 875. Similarly, the trial court has vast
discretion in determining whether to exclude or allow
evidence, and its decisions will not be overturned in the
absence of an abuse of discretion. Bellsouth Telecomms.,
Inc. v. City of Lafayette, 05-1478, 05-1505 (La.App. 3
Cir. 1/5/06), 919 So.2d 844.
primary basis for Relators' request for such an order, as
well as its arguments to this court, is that plaintiffs'
counsel, in violation of Rule 4.2, communicated with Lacour,
an officer of a represented organization, outside the
presence and without consent of opposing counsel. Relators
posit that the penalty for such communication should be the
exclusion of Lacour's testimony in its entirety at trial
and, therefore, the trial court erred in failing to exclude
Lacour's testimony. Citing the provisions of Rule 4.2,
Relators assert the communication between plaintiffs'
counsel and Lacour about the subject of this litigation was
prohibited because: (1) Lacour, as Alderman, is by definition
an "officer" of the Town, which is a defendant in
this suit and which Broussard knew was represented by
counsel, La.R.S. 33:381,  see Rule 4.2(b)("person
the lawyer knows is presently . . . officer . . . of a
represented organization"); (2) defense counsel
discussed the litigation with Lacour prior to the
communication, see Rule 4.2(b)(1)("who . . .
consults with the organization's lawyer concerning the
matter"); (3) the Town Council met in executive session
twice, with Lacour present, to determine what direction to
proceed in this litigation prior to the contact, see
Rule 4.2(b)(2)("who has the authority to obligate the
organization with respect to the matter"); and (4)
plaintiffs have placed the Town Council's alleged
inactions regarding plaintiffs' hiring and termination
front and center in this litigation as a basis for their
suit, see Rule 4.2(b)(3)("whose . . . omission
in connection with the matter may be imputed to the
organization for purposes of civil . . . liability").
also advance the dual purposes of Rule 4.2 to prevent
disclosure of attorney/client communications and to protect a
party from "liability-creating statements" elicited
by a skilled interrogator. In the interest of furthering same,
Relators argue that, when an improper communication is
discovered before trial and an ethical violation is found,
the communication should be held inadmissible so to balance
the scales and protect the sanctity of the attorney-client
relationship as well as the integrity of the profession.
to plaintiffs' "constituents" argument,
Relators note Broussard is not a constituent, but an attorney
who does not live in the town and who discussed the subject
of the representation with a "represented party."
Simply put, plaintiffs cannot, with impunity, place the
inactions of the Town Council at issue and then approach a
member thereof in an effort to establish liability outside
the presence and without consent of opposing counsel.
also challenge the trial court's sua sponte
ruling, prohibiting defense counsel from communicating with
the Town Council, a client, which Relators submit contradicts
La.Rules Prof.Conduct, Rule 1.4. Moreover, it places defense
counsel in an impossible position to defend any claims made
against the Town Council as a lawyer employed or retained by
an organization, like the Town Council herein, represents the
organization acting through its duly authorized constituents,
who would be the aldermen in this matter. Citing La.Rules
Prof.Conduct, Rule 1.13(a).
that this writ presents an issue that has not been directly
addressed by this court, specifically whether a protective
order excluding the testimony of a witness is the proper
measure to take against allegedly unethical conduct in a
proceeding before the trial court. It raises the question of
what evidentiary consequences, if any, are wrought by an
attorney's disregard for the ethical rules prohibiting
communication with represented persons. Likewise, it brings
to the court's attention ...