Ridgeway Nursing & Rehabilitation Facility, LLC v. Lane
Ridgeway Nursing & Rehabilitation Facility, LLC v. Lane
Opinion of the Court
Opinion of the Court by
In an original action filed in the Court of Appeals, Ridgeway Nursing & Rehabilitation Facility sought a writ of mandamus requiring the dismissal of the claims brought against it or, alternatively, the disqualification of opposing counsel, Wilkes & McHugh. As grounds for the remedy it sought, Ridgeway alleges that an investigator working for Wilkes & McHugh contacted Ridgeway’s employees in violation of Kentucky Rules of Professional Conduct 4.2. The Court of Appeals declined to issue a writ, noting that Ridgeway did not meet the prerequisites for issuance of a writ because it had an adequate remedy by appeal or otherwise. Because we similarly find that a writ is not available to Ridge-way in this circumstance, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY.
This litigation stems from the death of Roger Collins following an inpatient stay
Collins was treated with a halo — a metal brace placed around the head and affixed to the skull with screws to immobilize the head and neck. Upon release from the hospital, Collins returned to Ridgeway to recover. He stayed there about another month. During this time, the sites where the halo was affixed to Collins’s skull became infected, leading to a brain infection and multiple brain surgeries.
Collins died a month after leaving Ridgeway. And following his death, Collins’s wife, on behalf of his estate, brought the underlying tort action against Ridge-way alleging wrongful death and nursing home neglect, attributing Collins’s death to the fall and injuries he sustained as a resident of Ridgeway.
After extensive pretrial discovery by both sides, Ridgeway moved the trial court to dismiss Collins’s complaint or, in the alternative, to disqualify Wilkes & McHugh, the law firm representing Collins. This motion stemmed from contacts made by Gary Carter, an investigator for Wilkes 85 McHugh, with employees of Ridgeway allegedly in violation of Kentucky Rules of Professional Conduct Rule 4.2.
First, Carter approached Carol Hughes, the licensed practical nurse that treated Collins immediately following his fall at Ridgeway. The affidavits of Hughes and her husband aver that the interaction with Carter lasted twenty-five to thirty minutes during which time Carter asked numerous questions about other employees and whether they were still employed by Ridgeway. Later, Carter contacted Lindsey Copher, a dietary aide employed at Ridgeway. Again, Copher’s affidavit shows that she informed Carter that she was still employed by Ridgeway, which prompted Carter to inquire regarding the employment status of other Ridgeway employees.
Carter’s deposition testimony, however, paints a slightly different picture. Carter testified that his purpose in contacting Hughes and Copher was to determine if they were still employed by Ridgeway, thereby determining if he was permitted to engage them in a substantive interview. After finding out that they were still em
Lastly, we acknowledge and grant Ridgeway’s motion to supplement the record pertaining to another allegedly impermissible contact made by Carter. The supplemental information supplied by Ridgeway consists of an affidavit of Jessica Thompson, the Director of Social Services and Admissions for Ridgeway, regarding the contact she had with Carter. Thompson avers that Carter arrived at her home unannounced as part of an ongoing investigation regarding Ridgeway. Thompson directed Carter to leave upon discovering the purpose of his visit, and Carter complied without having the opportunity to ask Thompson any questions.
In response to Ridgeway’s motion to dismiss or disqualify, the trial court denied the motion, finding that there is “no known negative result from [the] contact [ ] that would justify the serious remedies sought.” The trial court further found the argument that prejudice would arise in the future to be “speculative” but announced that “the Court is willing to bar any evidence that comes to light from this contact as the remedy in this matter.”
Following this adverse ruling, Ridgeway filed a writ petition in the Court of Appeals. In denying Ridgeway’s petition, the Court of Appeals found that an adequate remedy existed outside the issuance of a writ and further found the claimed injury to be too speculative to support a writ. This appeal followed. We affirm.
II. ANALYSIS.
The issuance of a writ of mandamus is an extraordinary remedy.
Writs are “divided into two classes, which are distinguished by whether the lower court allegedly is (1) acting without jurisdiction (which includes ‘beyond its jurisdiction’) or (2) acting erroneously within its jurisdiction.”
Under the second class of writ cases, a writ “may be granted upon a showing ... that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.”
As with other decisions that are within the discretion of the court, the decision of the Court of Appeals regarding the issuance of a writ is reviewed for an abuse of discretion.
No adequate remedy by appeal or otherwise means that the injury to be suffered by Ridgeway “could not therefore be rectified in subsequent proceedings in the case.”
Ridgeway has at least two viable options for redress. First, the trial court has already expressed its position regarding the admission of evidence obtained in contravention of Rule 4.2. The trial court stated in no uncertain terms that it •will suppress any evidence resulting from unethical contacts. Second, if the trial court falters in excluding unethically obtained evidence
In addition to failing to show the lack of an adequate remedy by appeal or otherwise, Ridgeway has also failed to show that it would sustain any injury, much less irreparable injury, in the absence of a writ of mandamus. Similar to its argument that it has no adequate remedy outside of a writ, Ridgeway argues that because the employees that spoke with Carter do not recall the exact details of their conversations, it is inherently and irreparably harmed because lay persons, when not accompanied by counsel, may not understand the legal significance of what they say to an investigator. The trial court and Court of Appeals found this argument to be too speculative, and we must agree.
We find our decision in University of Louisville v. Shake
Here, Ridgeway can only provide evidence that the employees contacted by Carter disclosed, at most, information regarding the employment status of Ridge-way employees. No evidence was presented that these interactions involved any discussion of the merits of Collins’s case or the disclosure of any confidential or privileged information. Similar to the Shake case, the only information disclosed during the alleged improper contacts was collateral in nature and, thus, does not create an injury sufficient to warrant a writ.
Ridgeway also argues that regardless of the severity of the actual injury it suffered, this instance is one in which the “certain special cases” exception should be invoked. Ridgeway takes the position that any violation of Rule 4.2 requires disqualification of the infringing attorney “with any doubt [of prejudice] to be resolved in favor of disqualification.”
Even if the certain-special-cases exception were available to Ridgeway, we have noted the “disqualification of a party’s counsel ... is a drastic remedy[,]” which we are decidedly disinclined to grant.
In applying this test, this Court has been willing to issue a writ mandating attorney disqualification “where the improperly obtained information was highly prejudicial to the [petitioner].”
Ridgeway has also pleaded that if these alleged violations of Rule 4.2 go unpunished here, Wilkes & McHugh will escape without any punishment for their allegedly unethical actions. We cannot agree with this position and note that there is always a potential for disciplinary proceedings. In fact, the imposition of discipline by this Court following proceedings before the Kentucky Bar Association and a hearing by the Board of Governors is the proper procedure for imposing attorney discipline.
We find Ridgeway’s concern for the enforcement of the Kentucky Rules of Professional Conduct to be commendable, but we do not find the civil arena to be the
III. CONCLUSION.
For the foregoing reasons, we find that Ridgeway has not met the requirements for the issuance of a writ of mandamus. So we affirm the denial of the writ by the Court of Appeals.
. Collins was in fact a resident of Hilltop Nursing and Rehabilitation Facility, an assumed name of Ridgeway Nursing and Rehabilitation Facility. To avoid confusion, we will refer to both entities as Ridgeway throughout this opinion.
. SCR 3.130-4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
. See, e.g., Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).
. Interactive Media Entm't and Gaming Ass’n v. Wingate, 320 S.W.3d 692, 695 (Ky. 2010); see also Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008) ("[T]he specter of injustice always hovers over writ proceedings.”).
. See Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004) (holding that the older, stricter standard applied in Bender, 343 S.W.2d 799, and Chamblee v. Rose, 249 S.W.2d 775 (Ky. 1952), should govern writ proceedings).
. Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005) (quoting Bender, 343 S.W.2d at 800) (internal quotation marks omitted).
. Hoskins, 150 S.W.3d at 10.
. See Bender, 343 S.W.2d at 801.
. Id.
. Appalachian Reg'l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53 (Ky. 2007).
. Newell Enterprises, Inc., 158 S.W.3d at 754.
. Id.
. Id. at 755. ("[T]he existence of a remedy by appeal, adequate or not, is a question of law....”)
. Bender, 343 S.W.2d at 802.
. Id. at 801 ("Our cases involving controversies in this second class ... have consistently (apparently without exception) required the petitioner to pass the first test; i.e. he must show he has no adequate remedy by appeal or otherwise.”); Independent Order of Foresters v. Chauvin, 175 S.W.3d 610, 617 (Ky. 2005) ("As discussed above, [petitioner] has an adequate remedy by appeal, thus it cannot claim the protection of the ‘certain special cases’ exception.”).
. See University of Louisville v. Shake, 5 S.W.3d 107, 110 (Ky. 1999) ("If plaintiffs nevertheless manage to achieve some unfair use of this information at trial, appellants can always raise the issue on appeal.”).
. 5 S.W.3d 107 (Ky. 1999).
. Id. at 108.
. Id.
. Id. at 110.
. Shoney’s, Inc. v. Lewis, 875 S.W.2d 514, 516 (Ky. 1994).
. Bender, 343 S.W.2d at 801 ("Our cases involving controversies in this second class ... have consistently (apparently without exception) required the petitioner to pass the first test; i.e. he must show he has no adequate remedy by appeal or otherwise.”); Chauvin, 175 S.W.3d at 617 ("As discussed above, [petitioner] has an adequate remedy by appeal, thus it cannot claim the protection of the 'certain special cases' exception.").
. Shake, 5 S.W.3d at 110 (quoting Shoney’s, Inc., 875 S.W.2d at 516).
. Id. (emphasis added).
. Id. (quoting Shoney’s, 875 S.W.2d at 516).
. Id. (construing Shoney’s, 875 S.W.2d 514).
. Id.
. Grigsby v. Ky. Bar Assn, 181 S.W.3d 40, 42 (Ky. 2005) (holding that the Supreme Court of Kentucky "has the sole authority to admit and discipline attorneys”).
. SCR 3.130(XXI). To be sure, we are not presently alleging that Ridgeway’s motion and subsequent writ proceedings are nothing more than mere procedural fencing in this instance.
. See, e.g., Shoney’s, 875 S.W.2d 514.
Reference
- Full Case Name
- RIDGEWAY NURSING & REHABILITATION FACILITY, LLC, D/B/A Hilltop Nursing and Rehabilitation Facility, and Provider Management and Development Corporation v. Honorable William E. LANE, Judge, Bath Circuit Court, Division I, and Stella Collins, of the Estate of Roger Collins, Real Party In Interest
- Cited By
- 40 cases
- Status
- Published