Olupitan v. Board of Regents of the University of Oklahoma

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MARTINA O. OLUPITAN, MHA, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-349-G

)

STATE OF OKLAHOMA ex rel. )

THE BOARD OF REGENTS OF THE )

UNIVERSITY OF OKLAHOMA )

et al., )

)

Defendants. )

ORDER

Now before the Court are Plaintiff Martina O. Olupitan’s Motion to Disqualify

Opposing Counsel (Doc. No. 21) and Supplement (Doc. No. 22), seeking to have certain

of the defendants’ counsel disqualified and removed from the case. Defendants have

responded in opposition. See Defs.’ Resp. (Doc. No. 24).

I. Background

Plaintiff, who appears pro se, brings this 42 U.S.C. § 1983 action, along with

multiple state-law claims, against nine Defendants, which include the State of Oklahoma

ex rel. the Board of Regents of the University of Oklahoma (“OU”) and certain individuals

who hold positions at the University of Oklahoma College of Pharmacy (“OUCOP”), OU

Health Sciences Center, and OU College of Medicine. See Compl. (Doc. No. 1) at 2-4.

Plaintiff alleges that she was pursuing a Doctor of Pharmacy degree at OUCOP when

events transpired that culminated in Plaintiff being dismissed from the institution in 2023.

This led Plaintiff to pursue redress, first through a state-agency claims process and then

through the filing of this lawsuit.

II. Standard of Decision

The determination as to whether an attorney should be disqualified is “committed

to the discretion of the court.” Foltz v. Columbia Cas. Co., No. CIV-15-1144-D, 2016 WL

4734687, at *2 (W.D. Okla. Sept. 9, 2016) (citing Weeks v. Indep. Sch. Dist. No. I-89 of

Okla. Cnty., 230 F.3d 1201, 1211 (10th Cir. 2000)); accord Cole v. Ruidoso Mun. Schs., 43

F.3d 1373, 1383 (10th Cir. 1994). Motions seeking the disqualification of opposing counsel

are “viewed with suspicion,” however, “and the Court must guard against the possibility

that disqualification is sought to secure a tactical advantage in the proceedings.” Foltz,

2016 WL 4734687, at *2 (internal quotation marks omitted). “A fundamental premise of

the adversary system is that individuals have the right to retain the attorney of their choice

to represent their interests in judicial proceedings.” Richardson-Merrell, Inc. v. Koller, 472

U.S. 424, 441 (1985) (Brennan, J., concurring).

Two sources of authority govern motions to disqualify. Cole, 43 F.3d at 1383. First,

district courts consider “the local rules of the court in which [the attorneys] appear.” Id.

This Court has adopted the Oklahoma Rules of Professional Conduct (“OPRC”) as its

governing standard of attorney conduct. See LCvR 83.6(b); see also Okla. Stat. tit. 5, ch.

1, app. 3-A. Second, motions to disqualify are “decided by applying standards developed

under federal law” and are therefore governed “by the ethical rules announced by the

national profession and considered in light of the public interest and the litigants’ rights.”

Cole, 43 F.3d at 1383 (internal quotation marks omitted).1

III. Discussion

A. Defendants’ Counsel’s Alleged Misrepresentation to the Court

Plaintiff seeks disqualification of “OU’s Legal Counsel”—specifically, attorney M.

Daniel Weitman. Pl.’s Mot. at 2. In support of the disqualification request, Plaintiff first

argues that an earlier filing in this case contains a factual inaccuracy regarding OU

counsel’s knowledge of Plaintiff’s contact information, which Plaintiff asserts was a

deliberate misrepresentation to the Court. See id. at 2-3.

On July 1, 2024, Defendants, though John C. Curtis, III, an attorney in OU’s Office

of Legal Counsel, filed a Motion for Extension of Time (Doc. No. 19). In relevant part,

the motion represented that “Plaintiff has not provided a contact phone number in her

Complaint or Summons, and thus, Defendants have not contacted her to inquire whether

she objects to this request for extension of time.” Id. at 3. The Court granted the motion.

See Order of July 2, 2024 (Doc. No. 20).

In her relevant filings, Plaintiff asserts that her phone number was known to

Attorney Weitman and others in the OU’s Office of Legal Counsel due to prior attempted

and completed phone conversations. Pl.’s Mot. at 2-3. Thus, she says, to represent

1 “[A]lthough federal courts must consult state rules of professional conduct, they are not

bound by state-court interpretations of such rules.” Grant v. Flying Bud Farms, LLC, No.

22-CV-1, 2022 WL 2955147, at *3 (N.D. Okla. July 26, 2022). “Nonetheless, . . . the

Court must apply standards developed under federal law, while attempting to avoid any

inconsistencies with state law that would create procedural difficulties for practitioners in

Oklahoma.” Id. (alterations, citation, and internal quotation marks omitted).

otherwise in the motion for extension of time was misleading the Court. See id. Defendants

respond that the statement in the motion was factually true based on Plaintiff’s phone

number not appearing in her Complaint or Summons. See Defs.’ Resp. at 4. Defendants

also note that it was Attorney Curtis rather than Attorney Weitman who filed the motion,

so the allegation would not support the disqualification of Attorney Weitman. See id.

Defendants do not dispute that Attorney Weitman and Plaintiff spoke by phone prior to the

motion being filed but represent that Plaintiff’s phone number was not retained. See id.

This Court’s local rules require all motions for extension of time to state “whether

the opposing counsel or party agrees or objects to the requested extension.” LCvR 6.3.

By presenting to the court a . . . written motion, . . . an attorney . . . certifies

that to the best of [the attorney’s] knowledge, information, and belief, formed

after an inquiry reasonable under the circumstances: . . . it is not being

presented for any improper purpose . . . [and] the factual contentions have

evidentiary support . . . .

Fed. R. Civ. P. 11(b).

The Court does not find sufficient cause for disqualification as to either Attorney

Curtis or Attorney Weitman because, as correctly stated in the motion for extension,

Plaintiff’s phone number was not included in her Complaint or summonses. See Compl.

at 25; Doc. Nos. 7, 10, 13. And even if Attorney Weitman might have been able to find

Plaintiff’s phone number through a search of records other than the service papers,

Defendants’ statement in the motion for extension would still be technically correct.

B. Attorney Weitman’s Potential Appearance as a Witness

Plaintiff next argues that Attorney Weitman should be disqualified because he may

be required to appear as a witness in this case. See Pl.’s Mot. at 4.

Rule 3.7(a) of the Oklahoma Rules of Professional Conduct prescribes:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to

be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered

in the case; or

(3) disqualification of the lawyer would work substantial hardship on the

client.

Okla. R. Prof. Conduct 3.7(a). For purposes of this Rule, courts narrowly define “necessary

witness” to mean “a witness with knowledge of facts ‘to which he will be the only one

available to testify.’” Bell v. City of Okla. City, No. CIV-16-1084, 2017 WL 3219489, at *2

(W.D. Okla. July 28, 2017) (quoting Macheca Transp. Co. v. Phila. Indem. Ins. Co., 463

F.3d 827, 833 (8th Cir. 2006) (“Testimony may be relevant and even highly useful, but still

not strictly necessary.”)).

Plaintiff asserts that Attorney Weitman may be called to testify about facts relating

to “supplied documentation and responding documents to Defendants’ motion.” Pl.’s Mot.

at 4. Defendants construe this argument as meaning that Attorney Weitman would be asked

to testify about settlement negotiations and the decision to dismiss Plaintiff as a student

from OUCOP. See Defs.’ Resp. at 5. As to settlement discussions, Defendants argue that

such evidence is not permitted at trial. See id. As to the decision to dismiss Plaintiff from

OUCOP, Defendants represent that Attorney Weitman did not know of Plaintiff prior to her

dismissal and, therefore, does not have personal knowledge of relevant events about which

he could properly testify. See id.

By its terms, Rule 3.7’s prohibition applies to an attorney who will “likely” be a

witness at trial. Here, based on Plaintiff’s brief assertion, it is not clear whether Plaintiff

anticipates calling Attorney Weitman at trial or at a pretrial proceeding. Even assuming

Plaintiff would seek to call Attorney Weitman at trial, the record does not reasonably reflect

that any testimony he has to present would be admissible, relevant, or unique (i.e., that the

facts could not be established through another, equally effective source). Because it has

not been shown that Attorney Weitman would be a witness, let alone a necessary witness,

at trial, disqualification is not warranted.

C. The Interactions Between Plaintiff and Attorney Weitman

Finally, Plaintiff argues that Attorney Weitman, during various interactions,

subjected Plaintiff to “misrepresentations and other questionable conduct” that “might be

considered unethical conduct.” Id. at 3; see also Pl.’s Suppl. at 2-4.

Rule 4.1 requires that “in the course of representing a client, a lawyer shall not

knowingly” “make a false statement of material fact or law to a third person.” Okla. R.

Prof. Conduct 4.1(a).

A misrepresentation can occur if the lawyer incorporates or affirms a

statement of another person that the lawyer knows is false.

Misrepresentations can also occur by partially true but misleading statements

or omissions that are the equivalent of affirmative false statements.

Id. cmt. 1. Rule 4.3 adds an additional layer:

In dealing on behalf of a client with a person who is not represented by

counsel, a lawyer shall not state or imply that the lawyer is disinterested.

When the lawyer knows or reasonably should know that the unrepresented

person misunderstands the lawyer’s role in the matter, the lawyer shall make

reasonable efforts to correct the misunderstanding. The lawyer shall not give

legal advice to an unrepresented person, other than the advice to secure

counsel, if the lawyer knows or reasonably should know that the interests of

such a person are or have a reasonable possibility of being in conflict with

the interests of the client.

Id. R. 4.3. Finally, Rule 4.4 states that “in representing a client, a lawyer shall not use

means that have no substantial purpose other than to embarrass, delay, or burden a third

person.” Id. R. 4.4(a).

Plaintiff contends that she and Attorney Weitman engaged in settlement talks, so he

should be barred from the case. See Pl.’s Mot. at 3. But Rule 4.3 does not “prohibit a

lawyer from negotiating the terms of a transaction or settling a dispute with an

unrepresented person.” See Okla. R. Prof. Conduct 4.4 cmt. 2. Attorney Weitman may not

properly be disqualified for engaging in settlement discussions with Plaintiff.

Plaintiff next urges that she was misled when “Attorney Weitman implied that she

would have to get a lawyer to bring a lawsuit.” Pl.’s Suppl. at 3. The transcript of Plaintiff’s

phone conversation with Attorney Weitman reflects that he stated, as settlement

negotiations deteriorated, “[Y]ou need to go get yourself a lawyer and bring a lawsuit

then.” Pl.’s Suppl. Ex. 1 (Doc. No. 22-1) at 26. Attorney Weitman also told Plaintiff that

she was “entitled to go get . . . a lawyer and bring a lawsuit.” Id. at 29. At the end of the

conversation, Attorney Weitman said, “[Y]ou have the right, under the law, as the letter

advised you, to bring a lawsuit if that’s what you wanna do.” Id. at 31. The Court does

not read these statements as implying that Plaintiff could not bring a lawsuit pro se.

Throughout her Motion and Supplement, Plaintiff directly and indirectly asserts that

Attorney Weitman dealt dishonestly with Plaintiff in order to run out the time for Plaintiff

to pursue her legal claims. See e.g., Pl.’s Suppl. at 2-3. The record before the Court is not

consistent with this assertion. The March 25, 2024 phone conversation transcript reveals

instances of confusion for both Plaintiff and Attorney Weitman about the status of

Plaintiff’s claims within the State of Oklahoma Risk Management Office. See Pl.’s Suppl.

Ex. 1, at 21-24. In any event, the Court sees nothing in the transcript that would amount

to Attorney Weitman misrepresenting a fact within the meaning of Rule 4.1 or violating

duties imposed by Rule 4.3 or Rule 4.4.

Referencing a separate series of phone calls that occurred in early June 2024 after

the litigation had begun, Plaintiff alleges that she was “subjected to fear, intimidation, and

bribery on OU’s behalf by way of indirect communication” during a phone conversation

Plaintiff had with an individual in the State of Oklahoma Risk Management Office. Pl.’s

Suppl. at 3-4. Disqualification is proper when “continued representation would threaten

the integrity of the judicial process.” Grant, 2022 WL 2955147, at *4. The allegation that

information was conveyed to Plaintiff during the June 7, 2024 conversation at the behest

of Attorney Weitman or OU’s Office of Legal Counsel is vague and speculative at best.

Plaintiff has not, on this basis or any other, established a threat to judicial integrity that

would warrant the “drastic measure” of disqualification at this stage in the proceedings.

Id. (internal quotation marks omitted).

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to Disqualify Opposing Counsel

(Doc. No. 21) is DENIED.

SO ORDERED this 31st day of March, 2025.

CHARLES B. GOODWIN

United States District Judge