PUBLISH
UNITED STATES COURT OF APPEALS
Filed 6/4/96
TENTH CIRCUIT
___________________________________
TAMMIE JOHNSON, ELIZABETH YORK, JUDY )
O'CONNOR, PATRICIA CAUDILL, )
)
Plaintiffs-Appellees, )
)
v. ) No. 95-1075
)
BOARD OF COUNTY COMMISSIONERS FOR THE )
COUNTY OF FREMONT; BOB CHEEK, in his )
official capacity, )
)
Defendants. )
)
CATHY GREER, THE LAW FIRM OF HALL & )
EVANS, )
)
Movants-Appellants. )
___________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. Nos. 93-K-2465, 93-K-2466, 93-K-2467 and 93-K-2468)
___________________________________
Submitted on the briefs:
Richard C. LaFond, Terry Clausen, and Arnold M. Woods, of LaFond & Clausen, L.L.C., Denver,
Colorado, for Plaintiffs-Appellees.
Cathy H. Greer, Alan Epstein, and Josh Marks, of Hall & Evans, L.L.C., Denver, Colorado, for
Movants-Appellants.
___________________________________
Before BRORBY and BARRETT, Circuit Judges, and BRIMMER,* District Judge.
*
The Honorable Clarence A. Brimmer, United States District Judge for the District of Wyoming,
sitting by designation.
BRORBY, Circuit Judge.
___________________________________
Attorney Cathy Greer and the law firm of Hall & Evans appeal from an order finding that
Attorney Greer violated the Colorado Rules of Professional Conduct by representing defendant Bob
Cheek in his official capacity only. We affirm, although we apply a different analysis than the
district court.1
I. Factual & Procedural Background
Mr. Cheek was at all relevant times sheriff of Fremont County, Colorado. While Mr. Cheek
was serving as sheriff, four female employees of the Fremont County Sheriff's Department
commenced actions against the Board of County Commissioners for the County of Fremont,
claiming Mr. Cheek had sexually harassed them in violation of Title VII of the Civil Rights Act of
1964. The board answered, stating it had no legal responsibility for actions of the sheriff's
department.
Plaintiffs filed amended complaints adding Mr. Cheek as a defendant to their Title VII
claims. The caption listed Mr. Cheek as a defendant in his official capacity. Attorney Greer
answered on behalf of Mr. Cheek in his official capacity as sheriff of Fremont County. On June 17,
1994, plaintiffs filed second amended complaints adding a claim under 42 U.S.C. § 1983, and
1
After examining the briefs and appellate record, this panel has determined unanimously to grant
the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir.
R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
naming Mr. Cheek as a defendant in both his official and individual capacities. These complaints
alleged that Mr. Cheek's actions were taken "both inside and outside the scope of his authority." Mr.
Cheek filed answers in his official capacity, asserting as a defense that "[t]he actions complained of
by plaintiff[s] were not taken pursuant to any official custom[,] policy or practice."
On July 29, 1994, Mr. Cheek in his individual capacity and pro se, moved for an extension
of time to answer because he was seeking declaratory relief from state court to determine whether
the Board of County Commissioners would provide counsel to represent him in his individual
capacity. The district court granted the extension.
On September 16, 1994, because the state court had not yet ruled, Mr. Cheek moved for a
second extension of time to file an answer in his individual capacity. The district court denied the
motion and ordered Attorney Greer to "show cause in writing ... why all pleadings filed on behalf
of Mr. Cheek should not be stricken and under what legal authority [she] presumes to enter a limited
appearance on behalf of a party of record."
Attorney Greer filed a response. She explained that there is a distinction between individual
and official capacity suits in that in an official capacity suit, the real party in interest is the
governmental entity whereas in an individual capacity suit, liability is sought to be imposed against
the individual governmental officer. She stated there are two separate defendants -- the government
entity that employs Mr. Cheek (Mr. Cheek in his official capacity), and Mr. Cheek in his individual
capacity. Further, as of January 1995, a successor to Mr. Cheek would be elected who would then
3
hold the office of sheriff and be represented by counsel.
On October 3, 1994, Mr. Cheek, appearing pro se, answered the second amended complaints
in his individual capacity. He adopted all of the assertions in the answer filed by Attorney Greer,
and added the additional affirmative defense of qualified immunity with respect to the claim for
relief under § 1983.2
On October 19, 1994, Attorneys Theodore Halaby and Robert Liechty attempted to enter
appearances for Mr. Cheek in his individual capacity. At the hearing held that day, the district court
struck all entries of appearances, including Attorney Greer's, and gave Mr. Cheek an additional thirty
days to answer the second amended complaint, either pro se or with an attorney or attorneys
representing him in both his capacities.
In a subsequently issued published decision, the district court stated that, although a person
may be sued in more than one capacity, that did not mean an attorney may limit his or her appearance
to only one of those capacities. Johnson v. Board of County Comm'rs, 868 F. Supp. 1226, 1230 (D.
Colo. 1994). Reasoning that a party with an attorney of record may appear only through that
attorney, the district court determined that by entering an appearance on behalf of Mr. Cheek in his
official capacity, Attorney Greer precluded him from appearing pro se or from retaining other
counsel for the individual capacity claims. Id. at 1230. The court concluded that by representing
2
Mr. Cheek later admitted to the district court that the documents he filed in his individual capacity
and pro se, although signed by him, were ghostwritten by the Fremont county attorney.
4
Mr. Cheek only in his official capacity, Attorney Greer left him exposed on the claims against him
in his individual capacity and therefore violated Colorado Rules of Professional Conduct, Rule 1.1,
which requires that a lawyer "provide competent representation to a client." Id. at 1231. While the
court recognized that Colorado Rules of Professional Conduct, Rule 1.2(c) permits a lawyer to "limit
the objectives of the representation if the client consents after consultation," it noted a client may not
be asked to agree to representation so limited in scope as to violate Rule 1.1. Id.
In reaching its conclusion Attorney Greer had not satisfied her obligations under the Colorado
Rules of Professional Conduct, the district court also made the following findings:
It is not clear who has requested Greer to represent Cheek. The record is silent on
this matter. There is no indication that Cheek, whom Greer ostensibly represents, has
demanded that his representation be bifurcated....
It is clear, however, that Greer has been instructed by someone not appearing
before the court to represent Cheek only insofar as he holds the official title of Sheriff
of Fremont County....
....
Whether Greer consulted with Cheek to obtain his consent to such limited
representation is not apparent on the information of record.
Id. at 1230-31.3
The attorneys filed a petition for writ of mandamus challenging the order. We denied the
petition. Cheek v. Kane, No. 94-1524 (10th Cir. Nov. 29, 1994). The parties settled the underlying
3
The court was also critical of the practice of attorneys ghostwriting for pro se litigants. However,
Attorney Greer did not engage in that conduct, and this aspect of the court's ruling is not at issue in this
appeal.
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action, and the cases were dismissed with prejudice. The attorneys then filed this appeal. We
ordered the parties in this appeal to submit briefs addressing whether the appeal should be dismissed
as moot based on the settlement of the underlying action.
II. Analysis
A. Mootness
We will dismiss an appeal as moot if it is impossible for this court to grant the appellant any
effectual relief whatsoever. In re Material Witness Warrant Nichols, 77 F.3d 1277, 1279 (10th Cir.
1996).
We held in G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824, 827 (10th Cir. 1990), that a
sanctions order against an attorney currently of record is not immediately appealable as a final
judgment where the underlying controversy is unresolved. Further, such an order is not appealable
under the collateral order exception to the final judgment rule because it could be appealed by the
attorney at the conclusion of the underlying case, even if the parties settle or elect not to appeal. Id.
at 827-29.
In United States v. Dickstein, 971 F.2d 446 (10th Cir. 1992), we addressed whether an
attorney who no longer was involved in the underlying action because his pro hac vice status had
been revoked could take an immediate appeal from the revocation order, even though the underlying
case had not been concluded. We held the attorney could not because the order was not a final
judgment. Id. at 448. Further, because the attorney was seeking an appeal only to vindicate his
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reputation, rather than to be allowed to continue representing his client, we saw no reason why the
order could not effectively be reviewed on appeal from the final judgment. Id. at 451. Even the
former client's acquittal would not render the revocation order unreviewable at the conclusion of the
underlying case. Id. Thus, the order was not appealable under the collateral order exception to the
final judgment rule. Id.
These cases establish that settlement of an underlying case does not preclude appellate review
of an order disqualifying an attorney from further representation insofar as that order rests on
grounds that could harm his or her professional reputation.4 We therefore conclude the appeal is not
moot insofar as the district court's order found that Attorney Greer had violated the Colorado Rules
of Professional Conduct. See Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1370
(11th Cir. 1989) (holding challenge to order disqualifying attorney was not moot, despite dismissal
of underlying case, where order's "brand of disqualification" on grounds of dishonesty and bad faith
could hang over attorney's name and career for years). That the underlying cases were dismissed
pursuant to a stipulation for dismissal with prejudice has no effect on the attorneys' right to appeal
because they were not parties to the stipulation. Cf. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 526
(10th Cir. 1992).
B. Merits
Attorney Greer contends separate legal representation is required where there are claims
4
An attorney would lack standing to challenge the order insofar as it affected only his or her client's
rights. Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir. 1993).
7
against a public official in both his official and individual capacities that create a potential for
conflicting defenses.
When a governmental official is sued in his official and individual capacities for acts
performed in each capacity, those acts are "treated as the transactions of two different legal
personages." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n.6 (1986) (internal
quotation marks omitted). Thus, a person sued in his official capacity has no stake, as an individual,
in the outcome of the litigation. Id. at 543-44. Personal or individual capacity suits "seek to impose
personal liability upon a government official for actions he takes under color of state law," while an
official capacity suit is "only another way of pleading an action against an entity of which an officer
is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985) (internal quotation marks omitted).
"As long as the government entity receives notice and an opportunity to respond, an official-capacity
suit is, in all respects other than name, to be treated as a suit against the entity," and not as a suit
against the official personally, "for the real party in interest is the entity." Id. at 166.
The distinctions between suits against an official in his individual and official capacities give
rise to differing and potentially conflicting defenses. Most notably, the government entity could
defend itself by asserting that the official whose conduct is in question acted in a manner contrary
to the policy or custom of the entity. See id. at 166. Also, an individual capacity defendant could
assert the defense of qualified immunity. See Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d
Cir.) (explaining potential conflicts between defenses of municipality and its employees in § 1983
action).
8
Given the potential conflict between the defenses available to a government official sued in
his individual and official capacities, we have admonished that separate representation for the official
in his two capacities is a "wise precaution." Medina v. Housing Auth. of San Miguel County, No.
91-2094, 1992 WL 218990 at *3 (10th Cir. Sep. 4, 1992) (unpublished order and judgment).
Although we did not hold that the potential for conflict mandates separate representation, we did
hold it was not error to allow separate representation. Id. at *4. While some courts have held
separate representation is required in the face of the potential conflict, see, e.g., Ricciuti v. New York
City Transit Auth., 796 F. Supp. 84, 88 (S.D.N.Y. 1992); Shadid v. Jackson, 521 F. Supp. 87, 90
(E.D. Tex. 1981), we decline to adopt a per se rule. We hold that when a potential conflict exists
because of the different defenses available to a government official sued in his official and individual
capacities, it is permissible, but not required, for the official to have separate counsel for his two
capacities. See Silva v. Witschen, 19 F.3d 725, 732 (1st Cir. 1994); Richmond Hilton Assocs. v. City
of Richmond, 690 F.2d 1086, 1089 (4th Cir. 1982); Clay v. Doherty, 608 F. Supp. 295, 303 (N.D.
Ill. 1985). Obviously, if the potential conflict matures into an actual material conflict, separate
representation would be required. See Dunton, 729 F.2d at 907-08; Clay, 608 F. Supp. at 303;
Model Rules of Professional Conduct, Rule 1.7.
Though separate representation is permissible, an attorney may not undertake only the official
capacity representation at his or her sole convenience. Under Colorado Rules of Professional
Conduct, Rule 1.2(c), a lawyer may limit the objectives of her representation only "if the client
consents after consultation." In the case where an attorney has been hired to represent a government
official in only his official capacity in a suit where the official is also exposed to liability in his
9
individual capacity but has no representation in that capacity, this rule serves an important function.
When adhered to properly, the rule ensures the defendant is adequately informed about the workings
of 42 U.S.C. § 1983 and the potential conflict between the defenses he may have in his separate
capacities. Above all else, the attorney and the district court should ensure the official is not under
the impression that the official capacity representation will automatically protect his individual
interests sufficiently. Courts have recognized a "need for sensitivity" to the potential for conflict in
this area, and have advised that "[t]he bar should be aware of potential ethical violations and
possible malpractice claims." Gordon v. Norman, 788 F.2d 1194, 1199 n.5 (6th Cir. 1986)
(quotation omitted). In the service of these interests, we embrace the Second Circuit's procedure
whereby counsel notifies the district court and the government defendant of the potential conflict,
the district court determines whether the government defendant fully understands the potential
conflict, and the government defendant is permitted to choose joint representation. See Kounitz v.
Slaatten, 901 F. Supp. 650, 659 (S.D.N.Y. 1995). In addition, the defendant should be told it is
advisable that he or she obtain independent counsel on the individual capacity claim. We reinforce
that, as with many issues relating to the relationship between attorney and client, the crucial element
is adequate communication.
In the instant case, the district court found:
It is not clear who has requested Greer to represent Cheek. The record is silent on
this matter. There is no indication that Cheek, whom Greer ostensibly represents, has
demanded that his representation be bifurcated....
It is clear, however, that Greer has been instructed by someone not appearing
before the court to represent Cheek only insofar as holds the official title of Sheriff
of Fremont County....
10
....
Whether Greer consulted with Cheek to obtain his consent to such limited
representation is not apparent on the information of record.
Johnson, 868 F. Supp. at 1230-31.
Our review of the record confirms these observations. The district court concluded Attorney
Greer "left Cheek exposed on those claims which can be sustained against him in his individual
capacity." Id. at 1231. Given that Attorney Greer has not demonstrated that she consulted with Mr.
Cheek about the mechanics of § 1983 and the exposure he was facing in his individual capacity or
brought the matter to the district court's attention, we are not prepared to hold the district court erred
in its finding Attorney Greer failed to satisfy her obligations to Mr. Cheek.
The decision of the district court is AFFIRMED, but the reasoning and analysis in Johnson,
868 F. Supp. 1226, are disapproved to the extent they conflict with our opinion.
11