The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
MARIA MURGUIA PLAINTIFF
V. CASE NO. 5:20-CV-05221
CHARISSE CHILDERS, in her official
Capacity as Director of the Arkansas
Division of Workforce Services DEFENDANT
MEMORANDUM OPINION AND ORDER
Legal Aid of Arkansas represents Plaintiff Maria Murguia in this matter. Defendant
Arkansas Division of Workforce Services (“DWS’”) urges the Court to disqualify Ms.
Murguia’s attorneys. After considering DWS’s Motion to Disqualify Opposing Counsel and
Request for a Hearing (Doc. 70) and Brief in Support (Doc. 71), Ms. Murguia’s Response
(Doc. 74), and DWS’s Reply (Doc. 77), the Court finds a hearing unnecessary to resolve
this matter and DENIES DWS'’s Motion (Doc. 70) for the following reasons.
|. Background
This case arises out of a claim for unemployment benefits (“UI”).1 When DWS
processed Ms. Murguia’s UI application in April 2020, it entered her employment history
incorrectly, causing her claim to be denied. On June 17, 2020, Ms. Murguia appealed the
decision. But, just over a month later, on July 24, Ms. Murguia sent a letter to DWS
withdrawing the appeal. According to Ms. Murguia’s Complaint (Doc. 2), she decided to
The factual background provided here is limited to the extent necessary to understand
DWS'’s Motion to Disqualify Opposing Counsel (Doc. 70). The reader can find a more
comprehensive background in the Courts Memorandum Opinion and Order denying
preliminary injunctive relief (Doc. 47).
do so because the appeal notice listed the incorrect employer, and she did not know how
to participate in the hearing. See Doc. 2, p. 13.
On August 25 and 26, Ms. Murguia met with DWS employee Raymond Michaud
to again file for UI benefits. She contends Mr. Michaud refused to update her file,
neglected to provide translation services, and acted with hostility toward her.
On September 23, a Legal Aid attorney contacted DWS on Ms. Murguia’s behalf.
The requisite documentation was provided to DWS to correct the agency’s error with
respect to Ms. Murguia’s employment history.
Ms. Murguia filed suit on December 18, 2020. See Doc. 2. She alleges: (1) DWS
intentionally discriminated against her as a Spanish-speaking Mexican immigrant, in
violation of Title VI of the civil Rights Act, 42 U.S.C. § 2000d; (2) Defendant's failure to
provide language access and the delay in accurately assessing her application for
unemployment benefits amounts to constructive denial without procedural due process,
in violation of the Due Process Clause of the Fourteenth Amendment.?
The Court has since taken up a range of motions, including Defendant’s Motion to
Dismiss (Doc. 9) and Ms. Murguia’s Amended Motion for Temporary Restraining Order
and Preliminary Injunction (Doc. 35). The Court denied Defendant’s Motion, finding its
assertions—the Court lacked subject matter jurisdiction and the complaint failed to state
a claim—to be without merit. See Doc. 37. The Court also denied Ms. Murguia’s Motion.
See Doc. 47. After briefing by both parties and an evidentiary hearing, the Court
2 Ms. Murguia’s Complaint (Doc. 2) also raised a third claim under state law, but Ms.
Murguia dismissed that claim on the record, agreeing with the Court that sovereign
immunity bars a claim in federal court for injunctive relief against a state official on the
basis of state law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
45
concluded that, while Ms. Murguia demonstrated possible merit on both claims, she did
not establish an irreparable harm that warranted emergency relief. The parties proceeded
to discovery on both the Title VI and Due Process claims. According to Ms. Murguia, DWS
failed to provide mandatory interpretation and translation services, and the agency,
through Mr. Michaud, mistreated and failed to meaningfully serve her. She contends the
alleged discrimination caused emotional harm and delay in adjudication of her UI benefits.
DWS filed the instant motion on October 15, 2021. The agency contends that
because it must depose Ms. Murguia’s Legal Aid attorneys, disqualification is proper. That
argument fails; the underlying premise is flawed. DWS’s examination of Legal Aid
attorneys is entirely unnecessary under the facts of this case.
ll. LEGAL STANDARD
The Court subjects motions to disqualify opposing counsel to “particularly strict
scrutiny” because “the potential for abuse by opposing counsel is high.” Droste v.
Julien, 477 F.3d 1030, 1035 (8th Cir. 2007). Furthermore, because “[a] party's right to
select its own counsel is an important public right and a vital freedom that should be
preserved,” the Court will take the “the extreme measure of disqualifying a party’s counsel
of choice . . . only when absolutely necessary.” Potter v. Holmes, 2016 WL 6023488, at
*2 (W.D. Ark. Oct. 14, 2016) (quoting Macheca Transp. Co. v. Philadelphia Indem. Co.,
463 F.3d 827, 833 (8th Cir. 2006)); see also Rob & Bud's Pizza, LLC v. Papa Murphy's
Int'l, Inc., 2015 WL 3901611, at *5 (W.D. Ark. June 24, 2015) (“Disqualification ... is a
drastic measure that should only be imposed when it is clearly required by the
circumstances.” (quoting Wal-Mart Stores, Inc. v. Vidalakis, 2007 WL 4468688, at *1
(W.D. Ark. Dec. 17, 2007))).
In DWS’s Motion to Disqualify Opposing Counsel (Doc. 71), the agency cites
Arkansas Rule of Professional Conduct 3.7, which provides: “A lawyer shall not act as
advocate at a trial in which the lawyer is likely to be a necessary witness unless” the
lawyer's “testimony relates to an uncontested issue . . . [or] to the nature and value of
legal services rendered in the case,” or “disqualification of the lawyer would work
substantial hardship on the client.” Ark. R. Profl Conduct 3.7. The Arkansas Supreme
Court considers an attorney a necessary witness at trial where the following three prongs
are Satisfied: (1) the attorney's testimony is material to the determination of the issues
being litigated; (2) the evidence is unobtainable elsewhere; and (3) the testimony is or
may be prejudicial to the testifying attorney's client. Weigel v. Farmers Ins. Co., Inc., 356
Ark. 617, 625 (2004).
lil. DISCUSSION
Below, the Court considers whether the testimony DWS proposes to elicit would
likely render Ms. Murguia’s attorneys necessary witnesses under the Weigel test. The
Court finds, based on the existing record, DWS has not carried its burden.
A. Legal Aid’s Conduct as Causation
DWS’s Motion to Disqualify (Doc. 71) is primarily driven by a defense the agency
anticipates raising at trial. DWS contends Legal Aid made a series of strategic decisions
in its representation of Ms. Murguia that hindered resolution of her UI claim. According to
DWS, even if discrimination by DWS employees did in fact occur, that conduct is not
responsible for the delay in proceedings.
Dws intends to argue Ms. Murguia’s decision to withdraw her appeal in July 2020
caused the subsequent delay in adjudication. It asserts Ms. Murguia’s letter to DWS on
July 24, 2020 (“July 24 Letter” or “Letter”) will provide important evidence at trial, and
DWS intends to elicit testimony evincing the Letter’s existence, its impact on Ms.
Murguia’s UI claim, and the reasons for sending it. However, according to DWS,
questioning Ms. Murguia is a fruitless endeavor because she neither personally prepared
the July 24 Letter nor meaningfully participated in the decision to send it. Thus, the agency
argues, it must have the opportunity to cross-examine the attorney who prepared it.
The Court does not dispute the potential relevancy of Ms. Murguia’s decision to
withdraw her appeal or the July 24 Letter itself. But DWS fails to identify testimony on this
topic that is at once material, obtainable only from Legal Aid attorneys, and prejudicial to
Ms. Murguia.
There is no dispute that Ms. Murguia sent the July 24 Letter; she testified in a
deposition she faxed it to DWS. (Doc. 71-1, p. 71). With respect to the Letter’s impact, it
would seem DWS’s own staff could testify to its effect, including whether it caused further
delay. The parties also agree Legal Aid participated in the preparation of the Letter; Legal
Aid stipulated on the record to assisting Ms. Murguia, (Doc. 71-1, pp. 78-79).
DWS refutes the scope of Legal Aid’s assistance. The agency alleges Legal Aid
attorneys did more than merely participate; they entirely drafted the letter. But DWS does
not establish Legal Aid testimony to be either material or unobtainable from another
source.® The agency fails to explain why Ms. Murguia’s own testimony is inadequate to
show her participation—or lack thereof—in the Letter’s preparation.
3 Because Weigel requires the moving party to establish all three prongs, the Court has
no occasion to progress to the third—prejudice to the testifying attorney’s client.
Moreover, the Court struggles to understand DWS’s objection. The drafter’s
identity has no apparent bearing on the Letter’s legal significance. It is well established
that “a party is responsible for the actions and conduct of his or her counsel.” Everyday
Learning Corp. v. Larson, 242 F.3d 815, 817 (8th Cir. 2001) (cleaned up). The Letter
effectively withdrew Ms. Murguia’s appeal, and she is bound by that decision. Legal Aid
serves as Ms. Murguia’s agent, and the strategic choices it makes in that capacity are
attributed to Ms. Murguia. While an attorney has an obligation to consult with his or her
client, that does not “require counsel to obtain the defendant's consent to every tactical
decision.” Fla. v. Nixon, 543 U.S. 175, 187 (2004) (internal quotation marks omitted).
DWS’s motion suggests the reason why Ms. Murguia withdrew her appeal—not
simply that she did so, or even that she did so on Legal Aid’s instruction and without
meaningful consultation—is the material testimony that it seeks to elicit. But the agency
neglects to explain how the underlying reasoning relates to the question of whether the
decision itself caused a delay. The Court can discern neither the relevance of the
proposition DWS seeks to establish nor the materiality of Legal Aid’s testimony to it.
DWS also argues it must examine Legal Aid attorneys or staff to confirm that Legal
Aid communicated with Ms. Murguia in Spanish, because “[i]f Legal Aid’s attorneys/staff
testify that interpreters were available to Ms. Murguia, such testimony will impeach Ms.
Murguia’s sworn statements in her declaration where she stated, under oath, that she
withdrew her appeal because she ‘did not know how participate in the hearing since [she]
didn’t speak English.”” (Doc. 71, pp. 13-14). Ms. Murguia has already testified that at
least one Legal Aid staff person spoke fluent Spanish and helped to facilitate
communication. (Doc. 71-1, pp. 62, 70). It is unnecessary for Legal Aid staff to testify to
the same fact.
DWS next argues: (1) the gap in time between when Ms. Murguia withdrew her
appeal on July 24 and submitted her paychecks to DWS, via her attorneys, on September
23 further delayed adjudication; and (2) Legal Aid failed to provide prompt notice that Ms.
Murguia visited the Fayetteville location in August 2020 and the DWS employee present
refused to update her file, presumably causing further delay. The timeline regarding Legal
Aid’s communication with DWS seems relatively clear and is established by evidence
already in the record. DWS does not identify additional testimony, material to the issues
to be litigated, that it believes only Legal Aid attorneys could provide. At bottom, Ms.
Murguia is the responsible party plaintiff, regardless of whether her attorneys’ actions or
omissions prove advantageous or harmful to her position in the litigation. Thus, the Court
cannot find Legal Aid attorneys to constitute necessary witnesses under Weigel.
B. Ms. Murguia’s Declaration
DWS alleges serious inconsistencies in Ms. Murguia’s various recitations of her
claim. In particular, it cites differences between Ms. Murguia’s declaration (Doc. 35-1) and
her deposition testimony (Doc. 71-1), and the agency contends that Ms. Murguia’s
inability to recall details about the declaration’s drafting and execution suggests that her
attorneys drafted the document. Again, of what significance?
DWS does not demonstrate why the document’s preparation itself is material to
the issues in this litigation. To the extent DWS intends instead to call into question Ms.
Murguia’s description of the events at issue, presumably the agency may, where
appropriate, impeach her testimony at trial with reference to the aforementioned
inconsistencies.
C. Forms Submitted to DWS
DWS levies a similar argument with respect to some of the forms submitted to
DWS in relation to Ms. Murguia’s UI claim. During her declaration, Ms. Murguia testified
she did not remember signing some of these documents. DWS contends Legal Aid
preparéd and submitted them on her behalf. Again, that might be so, but it is unclear what
conclusion DWS intends the Court to draw here. The forms themselves seem arguably
relevant, but DWS’s staff could presumably authenticate and testify to their contents.
There is no allegation the documents misrepresent the circumstances surrounding Ms.
Murguia’s claim, mislead the agency, or further delayed the proceedings. Moreover, a
party's lack of memory does not generally open the door to calling their attorney as a
witness.
D. Legal Aid Intern as a Witness
Finally, Legal Aid identified its former intern as a possible witness to testify to the
authenticity of Facebook posts made by non-parties. DWS argues it should be allowed to
question this individual at trial. Neither the Court nor Legal Aid disputes that. However,
DWS also argues it should also be allowed to cross-examine other Legal Aid staff or
attorneys about the materials’ authenticity. Again, DWS does not identify any additional
testimony or evidence material to its case that it cannot obtain from the individual
identified by Legal Aid or the existing record.
IV. CONCLUSION af
DWS’s Motion is DENIED. IT IS SO ORDERED on yt day of January,
2022. NN
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UNITED ST. Sethe JUDGE
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