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Fisher v. The Town of Boyce

Court of Appeals of Louisiana, Third Circuit

September 6, 2017



          Randall B. Keiser Jeremy C. Cedars Keiser Law Firm, P.L.C. COUNSEL FOR DEFENDANTS/APPLICANTS: Mayor Alma Moore Town of Boyce.

          Bradley C. Myers Amanda M. Collura-Day Kean Miller LLP COUNSEL FOR AMICUS CURIAE LOUISIANA: Municipal Association Louisiana.

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.



         Defendants-Relators, 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 protective order.

         This 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.[1] 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)[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.

         The 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 Council.

         We find 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.


         "The 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).

         ON THE MERITS

         Pursuant 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.

         The 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, [3] 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").

         Relators 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.[4] 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. [5] As 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.

         Relators 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.[6] 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).

         We find 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 ...

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