Shoney's, Inc. v. Lewis

SHONEY’S, INC., Shoney’s, Inc. Recipe Lee’s Famous

d/b/a Chicken, Appellant, LEWIS, Judge,

Honorable Thomas R. Court,

Warren Circuit Division

One, Appellee, Herr, Party

Roxanne Real Interest.

No. 93-SC-214-MR.

Supreme Kentucky. 31,

Jan. 1994. May

Reconsideration Denied Savarise, Cleary, Jeffrey

Richard S. A. Greenebaum, McDonald, Louisville, Doll & Sr., Gliatta, English, E. En- Charles Paul Lucas, glish, Owsley, Bowling & Priest Green, appellant. Golden, Rudloff, Evans,

Dale Golden & Green, Bowling real interest. for. Lewis, Judge, R. Thomas Warren Circuit Court, One, pro Division se.

OPINION THE BY OF COURT JUSTICE LAMBERT AND ORDER REVERSING appellants, Shoney’s, The motion of Inc. Shoney’s, Inc. Reci- Lee’s Famous d/b/a Chicken, pe for a Writ of Mandamus was denied, opinion, original without in an action Appeals. Court Pursuant 76.36(7)(a), appeal CR is as a matter right. litigation allegations involves of sexual brought Party harassment the Real Herr, Interest, against Shoney’s, Roxanne Lee’s, Boka, employee and Mohammed Lee’s. Prior to commencement the under- 21, 1992, lying litigation, September Herr’s counsel contacted Lee’s Senior Vice- concerning President Human Resources of sexual harassment. In this conversation, Herr’s counsel was informed represented by that Lee’s would be given name of On such counsel. 29, 1992, September spoke Herr’s counsel telephone with Lee’s counsel 515 (4) ease; that he and important” to Herr’s settlement. possibilities pre-litigation aof written state- by a “stack” of Lee’s also taken confirmed had conversation 1, 1992, From employee’s. other Lee’s in a letter dated October ments from this, that the statements his “client” had is no doubt the actions there which detailed representa- subject of the to these conversations Subsequent “were about taken. 3.130, 4.2. with Rule correspondence, Herr’s counsel met provided tion” as SCR and from two of procured statements and sworn managerial Lee’s now to whether turnWe manager and a general a employees, Lee’s pur- for represented parties employees were no- from or manager, without consent relief the rule comment to rule. The poses of the con- to The statements tice Lee’s counsel. pertinent part, as follows: provides, in circumstances of the cerned the facts and organization, this of an In the case underlying case. by lawyer prohibits a Rule communications party concerning the matter 26,1992, Herr, for one represent On October having a counsel, persons representation with by the same filed her ed managerial responsibility on to dis sexual harassment. Lee’s moved for behalf of any persons and other organization, firm from with his law qualify Herr’s counsel and 3.130, in connection with or omission alleging violation of SCR whose act the case a organi 4.2, may imputed to the prohibits with be which communication that matter Rule criminal represented purposes counsel. Without of civil or person a zation for opinion, liability Circuit Court declined to constitute Warren or whose statement request organiza to disqualify part counsel and denied the of the an admission on the added.) Lee’s prohibit use of sworn statement. (Emphasis tion. sought in the Court of a Writ of Mandamus 4.2, 3.130, The mana- SCR Rule comment Judge disqualify Appeals require to Lewis to precisely within gerial employees herein are violating against for the rule Herr’s counsel provided for in the group persons parte parties known to ex contacts with they were of undisputed It that comment. counsel, suppress represented by and to managerial rank and such fact allows senior seeks to

written statements obtained. Lee’s applicability conclusion other than no Appeals’ of relief the Court of denial reverse of the rule. directing an and obtain order Warren Finally, must decide whether SCR disqualify Court Herr’s counsel Circuit 4.2, 3.130, applies before and after Rule both suppress the evidence obtained For this we proceedings begun. have formal parte ex communication. plain the rule language turn to the 3.130, Rule 4.2 with SCR Communication any requirement pro- of a formal is without Counsel, provides: Represented by Person a attorney represents ceeding. When client, representing lawyer not In shall matter, attorney may that party specific in a subject rep- communicate about the represented other not communicate lawyer party resentation with a knows the consent the matter without represented by lawyer in another 3.130, Rule opposing SCR While matter, the consent unless the has not provides that it does comment or authorized law of the other parties con- to communications with apply to do so. matters, cerning here is conceded other the under- disqual- was about hearing on the that communication Id. At the trial court rely United States ification, following lying Both sides counsel made the case. Herr’s (E.D.N.Y.1982) Jamil, (1) F.Supp. 646 litigation, 646 prior that he admissions: (2d grounds, 707 F.2d 638 represented rev’d on other would be was advised Lee’s Cir.1983). Jamil, an retained Greenebaum, In individual Doll & Mc- by the law firm (2) having aware (hereinafter “Greenebaum”); attorney after been made Donald target grand jury investi- Lee’s that he was from two of he took written statements imminent. gation that an indictment was employees, con- managerial without senior (3) subsequently Greenebaum; used wired The United States that the of or notice sent from the a statement super informant obtain “very important ... statements 516

defendant. The U.S. District Court ad- “to disqual doubt be resolved in favor of dressed the issue whether the rule corre- ification.” Id. at 1083. See also Shelton v. Hess, sponding applied prior to our Rule 4.2 (S.D.Tex.1984). to an F.Supp. person indictment and held that when re- Herr’s counsel relies on W.T. Grant Co. v. (2d tains counsel protect during Haines, him an inves- Cir.1976), 531 F.2d 671 where tigation, person “represented the becomes a Appeals the United States Court of for the party” purposes prohibition for of the ethical disqualify Second Circuit refused to an attor parte on ex contacts. ney interrogated who defendant-employee filing complaint. moments after W.T. Kentucky Pursuant to SCR the Bar distinguishable Grant is from the at ease bar adopted Association has Opin- Formal Ethics in defendant-employee that the rep was not Opinion E-65, In KBA ions. the Association resented counsel at the of time the inter question today. addressed the we face It Here, rogation. Id. at 675. the witnesses that answered “A in should not interrogated high employees level of a way upon subject communicate the of contro- represented party, a fact of which Herr’s versy with a represented by counsel fully counsel was aware. We conclude that ... but should deal with his counsel.” the trial failing court erred in to order dis See Canon Canons of Professional Ethics. qualification of Herr’s counsel and that the opined The American Bar Association has “It Appeals failing Court of in grant erred is clear that Canon 9 is to be construed writ of mandamus. literally and not allow does a communication an opposing party, with without the consent respect With wrongfully to the statements counsel, though of his purpose merely his obtained, only satisfactory remedy sup- is investigate Accordingly, facts.” we Eaton, pression. In Ky., Bender v. 343 hold that the communication between Herr’s (1961), plaintiff S.W.2d 799 was ordered managerial counsel and employees Lee’s was produce the court to certain medical re- improper. ports. plaintiff sought prohibi- The a writ of prevent tion to enforcement of the order.

We must now consider the appropri Appeals agreed. The Court of In granting remedy. disqualification ate Lee’s contends prohibition, the court held that “once the required the Herr’s counsel is and cites information is it many furnished cannot be re- Kentucky Bar disciplinary Association opined called.” at Id. It that if support evi- position. actions of this While is improperly objec- dence appears discovered a later Kentucky there to be no direct au tion thority unavailing and the harm com- Disqualify Motions to counsel nor case, plete. present In the therefore, improperly remedy jurisdiction on the other obtained statements not suppressed, they are disqualified have counsel similar situations. may acquire independent significance, Papanicolaou In v. Chase Manhattan irreparable prejudice may such that result. Bank, N.A., (S.D.N.Y. F.Supp. 720 1080 Bank, Papanicolaou In v. Chase Manhattan 1989), the United District States Court for N.A., (S.D.N.Y.1989), F.Supp. 1080 York, the Southern District of New under its appears granted to have taken been for that 4.2, disqualified version of Rule the defen suppression appro- of the statements was the partner dant’s law firm because had dis priate remedy such a violation. Follow- plain cussed the merits the case with the ing its detailed discussion of the facts and tiff presence plaintiffs outside respect with disqualification law and con- Noting that in question the firm cluding necessary, that it Papanico- expended had thousands of hours of work on depositions laou Court ordered various delet- case, the District Court nevertheless from ed the record. found it an obligation disqualify had “to offending integrity recognize par- counsel when the disqualification We of a process ty’s adversarial suppression at stake.” It contin counsel and of information ued, “a judge primarily trial remedy should assess obtained is a drastic possibility prejudice might at trial that and the decisions of the courts below reflect Nevertheless, attorney’s result from the proper unethical act” with reticence. in circum- evidence, require, these, integrity as the rules inadmissible stances such stake, interceding by prohibition writ of process our is at we must without the adversarial prevent every harm to the or mandamus. make effort justice system. civil one of ethical purely question here reasons, foregoing reverse the For the remedy. violation, No appropriate and the this cause to Appeals and remand authority disqualifying suggests Court with directions the Warren Circuit all attorney suppressing party’s disqualifying Dale Golden and enter an order has obtained is use of the evidence he Rudloff, firm of Golden & Evans from present circum- appropriate litigation. participation further Certainly Rule 4.2 of the Rules stances. require attor- trial court shall further said Conduct, adopted we have Professional identity neys to disclose to Lee’s counsel the 3.130, provide. in SCR does not so persons all such of from whom statements truth, and this A lawsuit is a search for the any from further were taken and refrain to legal important is too to sacrifice principle of the of the statements disclosure substance charged particular ethical violation here. the question. in overriding legal principle should be the IT IS SO ORDERED. deciding suppres- in whether consideration in the contained the state- sion of evidence STEPHENS, C.J., REYNOLDS and and Shoney’s is employees obtained from ments SPAIN, JJ., concur. ethical viola- appropriate remedy the for the Majority tion the has occurred here. believes J., WINTERSHEIMER, in result concurs only. very carefully in must decid We consider justifies sup ing when the at stake interest LEIBSON, J., by separate dissents so pressing truth. As Justice Scott Reed STUMBO, J., joins. in opinion which Literary Benevo in Nazareth & aptly put LEIBSON, Justice, dissenting. Stephenson, Ky., lent Inst. v. 503 S.W.2d 177 (1973), considering questions in of this nature I Respectfully, dissent. ask, public inter “wherein the we must first Kentucky of Procedure Rules Civil a rule the court craft est lies.” When should Kentucky specify and the of Evidence Rules exists, a creating privilege where none discovery to the rules related to and suppress evi privilege which will be used to exclusion of admission and evidence. None justice of dence of the truth? The interest suppression of of these rules authorize state- privileges few in number keeping lies in such by employee ments taken from witnesses scrutinized, taking to carefully care con and party, employees even some of the adverse only suppression apply to where essen strue happen manageri- of type to function some important more protect tial to some interest If capacity. al the statements taken here just pending of case than a determination managerial employees from related to factual Protecting according to the true facts. Sho- rather than to matters covered observations against ney’s corporate interests statements attorney/client by the by privilege or freely by employees rele given their rule, they protected not product work not such an interest. vant facts is On the CR 26.02 or other Civil Rule. appropri- stage where contrary, litigation of this we Elsewhere SCR at ate, presenting where client insists assume that use of the statements will should testimony, bearing the duties of on the false confined to factual matters misconduct, conducting specifically pro- litigation are allegations of matters plaintiffs Here, discovery privi- even were to assume scope and not vided. (cid:127)within the of disquali- should only Roxanne Herr’s counsel leged: that the will be used statements he ethi- of Evi- fied in this case because violated Rules as authorized management to of the pertaining cal rule the trial dence. We should assume case, certainly provided further capable using its au- quite court will be Shoney’s, entirely suppressing use privileged thority keep out matters present litigation, the statements in the Suppressing is a case. ob- statements counsel remedy. up entirely draconian It made justified long tained is not so as the informa- prevent whole cloth and it serves tion privileged obtained involved neither ma- discovery rather than assist of the truth. terial, proof deceptive, nor false or mis- Eaton, Ky., leading significantly tainting Bender v. conduct so S.W.2d 799 (1961), Majority Opinion, cited in the destroy does integrity of the as to statements present not address the facts. It involved evidentiary their value. providing prohibition prevent writ of shows, far So as this record before obtain- enforcing trial court from an unauthorized statements, ing ap- Herr’s counsel made compelling discovery. order Once the trial propriate Shoney’s employees disclosures party complaining court forced the to submit regarding representation his and the nature discovery sought, genie was out of circumstances, investigation. In such opposite the bottle. Here the situation ob- as both the trial court and the Court Discovery Shoney’s employees tains. from Appeals correctly perceived, pre- the record obtained; already freely has been in a man- taking no reason sented the action Sho- Majority unethical, ner the concludes but demanded, ney’s disqualifying Herr’s nevertheless one forbidden no or law rule suppressing any use of the he statements procedure. legal genie already out remedy obtained. The reasons for the im- bottle, sup- and no rule authorizes posed exist imagination here pressing already factual information ob- Shoney’s Shoney’s tained. has succeeded (if using anything) this turn Court to what is of party aggrieved obvious a quarrel over ethics into defense to this the unethical conduct of is to action. complain Association, to the Bar which, if appropriate, will be fol- STUMBO, J., joins this dissent. by punishment lowed commen- surate with the seriousness his miscon- case, punishing duct. In this instead of client, lawyer, punishing presum- we are

ably innocent wrongdoing in this af- yet, punishing judi-

fair. Worse we are McGINNIS, cial process by suppressing Appellant, evidence other- Dante Lee wise admissible the search for the truth. v. attorney who took the statements Kentucky, COMMONWEALTH of questions really whether there was an ethical Appellee. Certainly, violation here. employed, when competent attorney investigates his Ghent’s Wayne TERRY, Appellant, Richard avoid, filing possible, case suit to if before filing a frivolous lawsuit. Should communi- Kentucky, COMMONWEALTH of cating Shoney’s corporate counsel about Appellee. potential continuing claim while the investi- gation, itself, right foreclose the to further 92-SC-573-MR, Nos. 92-SC-659-MR. investigate filing the facts before suit? We Supreme Kentucky. case, paint- seem to have concluded in so ing awith broad brush where fine lines are 24, March any impro- called for. Whether there was Opinion Motion to Finalize Granted in here, so, priety exactly inap- what was May 92-SC-659-MR 1994.* not, propriate quite and what was unclear. questions impropriety While the raised

here are matters reasons to client, Herr,

deprive the of the benefit of investigation

evidence obtained in the of her

* 573-MR, appeal, yet Editor’s Note: The McGinnis No. 92-SC- is not final.

Case Details

Case Name: Shoney's, Inc. v. Lewis

Court Name: Kentucky Supreme Court

Date Published: Jan 31, 1994

Citation: 875 S.W.2d 514

Docket Number: 93-SC-214-MR

Court Abbreviation: Ky.