Alstatt v. Bd. of Cnty. Comm'rs for Okla. Cnty.

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BILLY JOE ALSTATT, as brother and Guardian of JOHNNY ALSTATT, an incapacitated person, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR OKLAHOMA COUNTY; et al., Defendants.

No. CIV-22-811-D

United States District Court, W.D. Oklahoma

August 7, 2023

ORDER

TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the Motion to Disqualify Plaintiff's Counsel [Doc. No. 79], filed by Defendant Board of County Commissioners for Oklahoma County (the “County”) pursuant to LCvR83.6(b) and Rules 1.9 1.10, and 1.11 of the Oklahoma Rules of Professional Conduct.

The Motion is supported by evidentiary materials that include declarations of three individuals: Commissioner Brian Maughan [Doc. No. 79-1], whose tenure began in 2009; Joe Blough, who has been a chief deputy to commissioners since 2007 [Doc. No 79-14]; and Commissioner Myles Davidson, who previously served in deputy positions for other commissioners beginning in 2012 [Doc. No. 79-15]. The County presents facts to show that one of Plaintiff's attorneys, Sandra Howell-Elliott was a career employee of the County who represented and advised the County regarding civil litigation and issues like those raised by Plaintiff's claims in this case. The County claims Ms. Howell-Elliott has a conflict of interest that disqualifies her from representing Plaintiff under Rule 1.9 and Rule 1.11 and, by imputation under Rule 1.10, disqualifies all Plaintiff's attorneys of record.

Plaintiff has filed a timely Response [Doc. No. 81] in opposition to the Motion, supported by the affidavits of Ms. Howell-Elliott [Doc. No. 81-1] and co-counsel Carl Hughes [Doc. No. 81-2]. Plaintiff contends Rule 1.11 governs the ethical duties of a former government lawyer and Ms. Howell- Elliott's representation does not violate that rule. Plaintiff alternatively argues that Ms. Howell-Elliott's disqualification need not affect his other attorneys. The Motion is fully briefed. See Reply Br. [Doc. No. 86].^[1]

Standard of Decision

An order disqualifying an attorney in a pending case falls “within the supervisory powers of the trial judge, and is thus a matter of judicial discretion.” Weeks v. Indep. Sch. Dist. No. I-89, 230 F.3d 1201 (10th Cir. 2000) (quoting Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994)). Attorneys appearing in this Court are bound by LCvR83.6(b), which adopts the Oklahoma Rules of Professional Conduct, but “because motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of the parties, they are decided by applying standards developed under federal law.” Cole, 43 F.3d at 1383. The Tenth Circuit has held that the Model Rules of Professional Conduct adopted by the American Bar Association “reflect the national standard to be used in ruling on disqualification motions” and “case law applying ABA [rules] is instructive.” Id. at 1383.^[2] As the party seeking disqualification, the County bears the burden to show that the attorney's conduct violated a disciplinary rule. Id. at 1384.

Statement of Facts

The facts on which the Motion is based are largely undisputed. Ms. Howell-Elliott was employed by the County as an assistant district attorney from July 1984 or 1985 until April 2015 or 2016, and worked for the County on a contract basis from July 2021 to May 2022 to assist with two criminal matters.^[3]During the last five years of her employment, Ms. Howell-Elliott led the civil division of the district attorney's office. In this role, Ms Howell-Elliott represented the County in civil rights litigation regarding the Oklahoma County Detention Center (“OCDC”). The County lists ten such cases filed between February 2008 and November 2014. See Mot. at 11-12.

In addition to litigation services, Ms. Howell-Elliott provided legal advice to the county commissioners related to OCDC. She attended both public board meetings and closed executive sessions convened for the purpose of confidential communications regarding pending civil litigation or claims. The County has submitted minutes of board meetings held in 2012, 2013, and 2014 that reflect Ms. Howell-Elliott's involvement in approving contracts and discussing funding or staffing issues related to OCDC. During at least four meetings, executive sessions were held to address pending litigation and claims related to OCDC. See Mot. Disqualify, Ex. 7, Aug. 1, 2012 Meeting Min. ¶ 50; Ex. 8, Dec. 3, 2012 Meeting Min. ¶ 29; Ex. 10, May 22, 2013 Meeting Min. ¶ 38; Ex. 13, July 16, 2014 Meeting Min. ¶ 33(a).

All three declarants for the County state they had confidential conversations with Ms. Howell-Elliott in her capacity as assistant district attorney and that some of those conversations included an exchange of information concerning funding and staffing of OCDC, “some of which is information that is not generally known.” See Maughan Decl. ¶ 18; Blough Decl. ¶ 20; Davidson Decl. ¶ 20. All three state a belief that Ms. Howell-Elliott “would have been provided non-public, confidential, not generally known information about funding and staffing at [OCDC]” in representing the County in civil rights litigation regarding claims that OCDC “was allegedly under-staffed and/or underfunded.” See Maughan Decl. ¶¶ 19-20; Blough Decl. ¶¶ 21-22; Davidson Decl. ¶¶ 21-22. All state a belief that Ms. Howell-Elliott “is using information relating to her previous representation of Oklahoma County, the Board of County Commissioners of Oklahoma County, and any County-related individuals or entities, to the disadvantage of Oklahoma County, the Board of County Commissioners of Oklahoma County, and the relevant County-related individuals or entities.” See Maughan Decl. ¶ 21; Blough Decl. ¶ 23; Davidson Decl. ¶ 23.

Ms. Howell-Elliott admits that the County and its sheriff were her clients and that her duties included representing them “in lawsuits, including claims related to injuries or conditions at [OCDC].” See Howell-Elliott Aff. [Doc. No. 81-1], ¶ 3. She specifically admits working with Commissioner Maughan while assigned to the civil division. Id. ¶ 4. Ms. Howell-Elliott denies, however, that she “engaged in conversations with any county officer or employee about the funding of [OCDC], as funding was a matter of policy and was not a legal issue,” and denies she was ever “asked by any officer or employee of the [County] or the Sheriff's Office . . . about funding decisions.” Id. ¶ 9. Ms. Howell-Elliott states that, although she attended meetings of the County's budget board, all those meetings were open to the public and she was never “privy to any conversations about how the Budget Board made [funding] decisions.” Id. Ms. Howell-Elliott states she does “not recall any cases the civil division handled that alleged inadequate funding as a ground for civil liability.” Id. ¶ 11.

Ms. Howell-Elliott admits she “personally handled several cases while assigned to the civil division that concerned inadequate staffing at the OCDC,” but expresses a belief that “[t]hose cases were fact specific, and [she] would have inquired about staffing at the OCDC at or near the time of the complained of incident.” Id. ¶ 12. Regarding her use of confidential information, Ms. Howell-Elliott states:

In responding to lawsuits against the Sheriff and the [County] about the OCDC, I was able to access volumes of information about studies done at the jail from internet searches. The internet has a large number of articles about studies done at the OCDC and about inhumane conditions at the OCDC.

All the information contained in the Complaint and Amended Complaint filed herein is publicly accessible via internet research or PACER research.

I have never disclosed any information related to my representation of any [county commissioner] or any other county officer or county employee to any person other than perhaps co-counsel in the cases assigned to me while I was employed at the Oklahoma County District Attorney's Office.

* * *

I have had no conversations with [co-counsel in this case] related to any information about my representation of any former clients, including the [County], Sheriff, or other county clients, and I would never divulge any such information.

Id. ¶¶ 13-15, 18.

Ms. Howell-Elliott explains her involvement in this case as stemming from her relationship with Johnny Alstatt, whom she represented in his guardianship proceeding. Id. at ¶ 16. Ms. Howell-Elliott states that she is a sole practitioner with a home office and has no association with the law firms of Scott Adams or Carl Hughes. Id. Ms. Howell-Elliott reports that as of May 22, 2023, she has met with co-counsel about the case twice: initially with all attorneys of record while the guardianship was pending, where the discussions “were all about the Guardianship proceeding;” and a second time with Carl Hughes at his office. Id. ¶¶ 16-17. Mr. Hughes corroborates these facts, and attests that Ms. Howell-Elliott has not discussed her work as an assistant district attorney with cocounsel in this case or disclosed any confidential information gained through that work.

The claims asserted in this case under 42 U.S.C. § 1983 and state law concern injuries that Johnny Alstatt suffered as a pretrial detainee at OCDC in March 2021 and, specifically inmate-on-inmate violence occurring within his cell. However, Plaintiff alleges that unsafe conditions existed in OCDC due to a shortage of detention officers and understaffing of housing pods where cells are located. Plaintiff's factual allegations describe a series of events in which Johnny Alstatt was physically threatened by his cellmate, placed a call for assistance, but was severely beaten and sexually assaulted before any response was made because there was no direct or indirect...