Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE DerKEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP Defendants. ______________________________________________________________________________ PLAINTIFF'S REPLY TO ROSS DEFENDANTS' RESPONSE TO MOTION FOR NEW TRIAL OR TO ALTER OR AMEND JUDGMENT ______________________________________________________________________________ Plaintiff, by and through her attorneys, Dietze and Davis, P.C., respectfully submits the following Reply to the Ross Defendants' Response to Plaintiff's Motion for New Trial or to Alter or Amend Judgment Regarding Summary Judgment Dismissing Fifth Claim for Relief against Ross Defendants. 1. Contrary to the Ross Defendants' suggestion, Plaintiff indeed is arguing that the

Court has committed manifest errors of law and fact. She has pointed to authority and evidence indicating that the Court erred in dismissing her Fifth Claim for Relief. 2. The Ross Defendants make the unique argument that a deponent effectively can wipe

out earlier sworn deposition testimony merely by submitting a contradictory statement of changes pursuant to F.R.C.P. 30(e). This would render depositions meaningless. Statements in a deposition are declarations against interest and their probative value presents questions for the trier of fact. Panola County Commissioners v. Bagley, 380 S.W.2d 878, 885 (Tx.

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Civ. App. 1964). Ambiguities and conflicts in a deponent's testimony are generally matters for the jury to sort out. Wilson v. Westinghouse Electric Corporation, 838 F.2d 286, 289 (8th Cir. 1988). When a deponent makes a change to deposition testimony pursuant to F.R.C.P. 30(e), the original answers remain part of the record and can be read at trial. They are not to be stricken even if changes are made. A witness who changes his testimony in this fashion may be impeached by his former answers. Lugtig v. Thomas, 89 F.R.D. 639, 641-2 (N.D. Ill. 1981). A deposition is not a "take home examination" and an "errata sheet" will not eradicate the import of previous testimony taken under oath. Rios v. Welch, 856 F.Supp 1499,1502 (D. Kan. 1994); Accord, Greenway v. International Paper Company, 144 F.R.D. 322, 325 (W.D.La.1992). 3. Here, Ross stated in sworn testimony that she considered both Lionbridge and

Plaintiff to be her clients in the process of amending the current Visa and attempting to obtain a green card. If Ross denies at trial that she considered Plaintiff to be her client, Plaintiff is entitled to impeach that testimony with the original deposition answers. The jury will then sort out the differences in the testimony and determine the probative value, if any, to be given to Ross's deposition testimony and to her trial testimony. 4. The sham affidavit doctrine permits a court under certain circumstances to disregard

an affidavit or an "errata sheet" submitted by a party in response to a summary judgment motion where the affidavit or "errata sheet" contradicts the party's previous sworn deposition testimony. Burns v. Board of County Com'rs of Jackson County, 330 F.3d 1275, 1282 (10th Cir. 2003); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 (10th Cir.2002). Plaintiff did not move for summary judgment and therefore made no attempt to invoke this rule against Ross, despite the clear conflict between Ross's deposition testimony and her later "Statement of Changes" and affidavit. But what

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this Court has done is to impose some sort of "reverse" sham affidavit doctrine, allowing a moving party to obtain summary judgment by supplanting sworn deposition testimony with a contrary "errata sheet" and affidavit in order to remove evidence in the record creating a genuine issue of fact for trial. This clearly is contrary to the authority cited in paragraph 2 above. 5. So long as the deposition testimony provides probative evidence on the factual issue

upon which summary judgment is requested, the Court must allow that issue to be determined by the trier of fact. It cannot act as the fact finder and decide for itself which version of Ross's

testimony is believable, particularly where the second version has not been tested under crossexamination at deposition or trial and where the Court has not had the benefit of observing Ross during her testimony. 6. Ross Defendants claim that the Court "considered and rejected Plaintiff's argument

that Ross's original answer raised an issue of fact regarding the formation of an attorney-client relationship." Response, para. 6. The Court certainly must determine as a threshold matter whether the deposition testimony has sufficient probative value to allow its admission into evidence at trial. But Ross's deposition testimony clearly provides probative evidence that Ross herself believed that Plaintiff had been her client and that she and Plaintiff had an attorney-client relationship. It is difficult to envision evidence more probative on this issue than Ross's admission that she considered Plaintiff to be her client. At trial, Ross can contradict and try to explain her testimony, but it is for the jury to decide which version to believe. 7. Of course, the evidence of an attorney-client relationship is not limited to Ross's

deposition testimony. As stated in Plaintiff's motion and as detailed in her response to the summary judgment motion, there is significant circumstantial evidence which, when viewed in the light most

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favorable to Plaintiff, is sufficient to support a finding that Ross acted as Plaintiff's attorney. Ross Defendants' Response does not address this evidence. 8. In paragraphs 8 and 9 of their Response, Ross Defendants rely on the same cases

found in the Court's Order to make the claim that no attorney-client relationship could have existed, because Plaintiff, while knowing about and consenting to Ross's actions on her behalf, did not know that Ross was taking such actions as Plaintiff's attorney. Plaintiff's motion argued in detail why Plaintiff's knowledge of Ross's capacity is not necessary to create an attorney-client relationship, why it is necessary only for Plaintiff to consent to Ross's actions on her behalf rather than consent to Ross's actions as an attorney on her behalf, and why the authorities cited in the Court's Order do not hold otherwise. Ross Defendants have made no attempt to address these arguments. Ross Defendants have not attempted to distinguish or attack Hoiles v. Alioto, 345 F.Supp.2d 1178 (D.Colo. 2004), which indicates that assent to the employment of an attorney can be provided by an agent having apparent authority to act for the principal-client. And they have not attempted to distinguish or attack Simon v. Wilson, 684 N.E. 2d 495 (Ill. App. 1997), DePape v. Trinity Health Systems, Inc., 242 F.Supp.2d 585 (N.D. Iowa 2003), or 1 R. Mallen & J. Smith, Legal Malpractice §8.3 (2005 Ed.) at 934, all confirming that an attorney-client relationship can be created by an agent with apparent authority, without the knowledge of the client. 9. In paragraph 10, Ross Defendants incorrectly claim that the only cases that Plaintiff

offers to support her position involve mentally incapacitated clients. Neither Hoiles or DePape involved such circumstances. In any event, Ross Defendants do not explain why such a distinction would be relevant. The key fact in these cases is not the mental incapacity of the client, rendering

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them unable to act except through a third party. It is the client's lack of knowledge that the attorney had been hired to act as their counsel. Under Ross Defendants' view, an attorney-client relationship would have been impossible in these cases, since the client did not directly consent to the hiring of the attorney. But these courts held otherwise, finding that an agent's consent is sufficient. Here, of course, Plaintiff directly consented to Ross's actions on her behalf. 10. In paragraph 11, Ross Defendants state that Plaintiff's argument could lead to the

creation of an attorney-client relationship without the client's consent and contrary to the client's desires. If Ross Defendants are referring to direct consent, they are correct. If the hiring of an attorney is within the scope of the agent's authority, an attorney-client relationship can be formed with the consent of the agent. See Simon, Hoiles and DePape, supra. The fact that the client may not have intended this result does not eliminate the attorney's authority to represent the client or take action on his behalf. after learning about it. 11. Ross Defendants state that Plaintiff must have sought and received legal advice. But Presumably, if the client does not want the relationship, he will terminate it

they fail to address Plaintiff's argument in paragraph 12 of her motion that although she never asked for a "legal opinion" from Ross, the evidence demonstrates that she sought Ross's legal guidance and that Ross provided legal advice to Plaintiff, through Lionbridge. Ross Defendants also fail to address the fact that the alleged requirement that legal advice be sought and received is based on the statement in People v. Morley, 725 P.2d 510 (Colo. 1986), that "The relationship is sufficiently established when it is shown that the client seeks and receives the advice of the lawyer on the legal consequences of the client's past or contemplated actions."Id. at 517. As such, Morley and its progeny, including Turkey Creek, LLC v. Rosani, 953 P.2d 1306,

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1311(Colo.App. 1998), merely provide one basis for proving the existence of an attorney-client relationship. They do not limit such relationship to cases involving seeking and receiving advice. 12. Immigration practice is a unique area of American law in that the great majority of

cases involve dual representation, where a single attorney represents two parties, because the majority of cases involve a petitioner (typically a U.S. citizen, in family immigration cases, or a U.S. employer, in employment-based immigration cases) who petitions the government on behalf of a foreign beneficiary. Bruce A. Hake, "Dual Representation in Immigration Practice," in AILA's Ethics in a Brave New World: Professional Responsibility, Personal Accountability, and Risk Management for Immigration Practitioners 28-35, 28 (John L. Pinnix, ed.) (AILA 2004).1 In all immigration cases involving a petitioner and a beneficiary, the lawyer has a lawyer-client relationship with both the petitioner and the beneficiary, unless each is represented by a different attorney. Id. A lawyer can be engaged in a dual representation unknowingly. A lawyer-client relationship does not require an express contract if there are good reasons to find that a lawyer was acting as a person's attorney. Id. at 30. 13. Soliciting information from an alien employee to fill out forms, on behalf of the

employer, constitutes "legal advice." Id. at 33. It is hard to imagine that a lawyer could diligently and competently undertake the complexities of something like labor certification application without, in substance if not in form, advising the beneficiary about legal requirements and legal The undersigned was contacted by Maryland attorney Bruce Hake on February 6, 2006, after Mr. Hake had read this Court's reported decision of January 26, 2006. The authorities and arguments contained in paragraphs 12-17 are an outgrowth of that contact. They were not contained in Plaintiff's motion because the motion was filed before contact from Mr. Hake. The cited article is a revised version of Mr. Hake's article, "Dual Representation in Immigration Practice," 2 Bender's Immigration Bulletin 568 (July 15, 1997), which in turn, is a condensed version of his article, "Dual Representation in Immigration Practice: The Simple Solution Is The Wrong Solution," 5 Georgetown Immigration Law Journal 581-639(Fall 1991). 6
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consequences. Id. What is more, a competent lawyer must obtain at the outset from the foreigner information that the foreigner would expect to be held in confidence. Id. at 33-34. 14. Mr. Hake's article states that some practitioners attempt to avoid the realities of dual

representation by adopting the "Simple Solution" of believing that they represent solely the petitioner or the beneficiary. Id. at 28. Hake argues that this purported solution is destroyed by the Rule of Professional Conduct prohibiting attorneys from giving legal advice to unrepresented persons. Id. at 33. Hake references D.C. Rule 4.3(a), which states in pertinent part that in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not give advice to the unrepresented person other than advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyers' client. Id. The comment to Rule 4.3 states that the possibility of the lawyer's compromising the unrepresented person's interest is so great that the rule prohibits the giving of any advice apart from the advice to obtain counsel. Id. Both Colorado and Massachusetts, Ross's home state, have adopted essentially similar prohibitions against giving advice to non-clients. Colo.RPC 4.3; Massachusetts Rule of Professional Conduct 4.3(b). Colorado's Rule prohibits such advice even in the absence of a

reasonable possibility of a conflict. 15. Clearly, there was a reasonable possibility of a conflict between the interests of the

Plaintiff and Lionbridge. In fact, a conflict already existed when Ross first agreed to take the case, since Lionbridge had been required by law and/or regulation to amend the Visa when Plaintiff was promoted to Translation Manager in April 2001 and was subject to a claim for back wages if it was determined that it had failed to pay Plaintiff the prevailing wage for that position. And a conflict arose regarding the amendment and green card process itself when the State of Colorado indicated

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on April 18, 2002 that the salary being paid by Lionbridge was approximately $50,000 less than what the State had determined to be the prevailing wage for Plaintiff's position. This meant that the process could not proceed unless Lionbridge substantially increased Plaintiff's salary or took other affirmative action that might be contrary to its desires. 16. It is undisputed that Ross and her office gathered information from Plaintiff for the

purpose of first obtaining a prevailing wage determination, then applying for an amendment to her Visa, and finally applying for a green card. According to Hake, this information gathering and the decision to proceed in this manner necessarily includes the giving of legal advice. Of course, Ross's office also expressly told Plaintiff that a formal prevailing wage determination from Department of Labor and Employment for the State of Colorado had to be obtained before the process could move forward. Plaintiff had requested that Ross's office keep her posted regarding status. On April 16, 2002, she was told that the request for a prevailing wage determination had been filed, but then was told nothing about the adverse April 18, 2002 determination until May 29, 2002, when she was told without specifics that a problem had been encountered and Ross was awaiting a clarification from the National Office of the Department of Labor. Plaintiff did not learn of the extremely serious nature of the problem until late September 2002, when she also was told that the only solution was an immediate demotion. Ross's failure to keep Plaintiff posted as requested in effect minimized the problem and "advised" Plaintiff that there was nothing of substance to report and the process was proceeding forward, when in fact a major and potentially fatal roadblock had been encountered. Further, Ross, through Lionbridge, advised Plaintiff that the application could not be filed unless Plaintiff accepted

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an immediate demotion, that a salary survey was not a viable option, that Plaintiff's job description could not be "tweaked" to obtain a favorable prevailing wage determination, and that giving Plaintiff the title of Translation Supervisor was not an available option. Ross was aware that this information was being passed to Plaintiff by Lionbridge. 17. Under these circumstances, if Plaintiff truly was unrepresented, it would have been

unethical under Rule 4.3 for Ross and her office to gather the personal information, inform Plaintiff about necessary steps in the process, and provide the above-referenced advice about options for dealing with the prevailing wage problem. Ross would have been limited to advising Plaintiff to secure her own counsel. It can be assumed that Ross did not intend to violate Rule 4.3. Therefore, she must have believed that Plaintiff was not unrepresented. Since Plaintiff had not hired her own attorney to handle immigration processing, she was represented by Ross. 18. In part due to Ross's changes to her deposition testimony, the Magistrate Judge

entered an Order on January 24, 2006, which permitted Plaintiff to submit a supplement to her expert's report expressing the opinion that an attorney-client relationship existed between Ross and Plaintiff. The supplement was served on opposing counsel on February 7, 2006 after Plaintiff filed her motion for new trial. See Exhibit 1, attached. This document was not in existence until after this Court's Order of January 26, 2006. While Plaintiff recognizes that parties generally cannot submit additional evidence after the issuance of a summary judgment order, it is respectfully submitted that it is appropriate to consider this new evidence. The supplemented report of expert Bart Chavez states: Consistent with Ms. Ross's sworn deposition testimony, this expert is of the opinion that Ms. Ross and her firm acted as attorneys for both Lionbridge and Ms. DerKevorkian. It is common for immigration attorneys to represent both the employer and the employee in immigrant visa processing, unless a conflict arises. 9

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After agreeing to move forward with filing for permanent residence for Ms. DerKevorkian, Ms. Ross took action in an attempt to advance Ms. DerKevorkian's interests with the goal of first amending the visa and then obtaining a green card. The filing of an Entry of Appearance or other document is not necessary for the formation of an attorney-client relationship or for the creation of a duty of care owed to the person whose interests the attorney has agreed to represent. Ms. Ross and her firm became Ms. DerKevorkian's attorneys when she agreed to Lionbridge's request that she handle immigrant visa processing for Ms. DerKevorkian. The fact that ultimately nothing was filed did not retroactively eliminate that attorney-client relationship or Ms. Ross's duty of care to Ms. DerKevorkian. 19. Ross agreed to undertake the task of amending Plaintiff's visa and pursuing a green

card for her. She negligently performed these services, causing great damage to Plaintiff. Under this Court's Order of January 26, 2006, Ross Defendants will avoid any responsibility for their actions and Plaintiff will be left without a remedy against these Defendants, simply because she did not know that Ross was acting as her attorney - a circumstance caused largely by Ross's own actions in shutting Plaintiff out of the process at the request of another client with conflicting interests. This result is contrary to law and practice. Perhaps more importantly, it is unjust. WHEREFORE, Plaintiff respectfully requests that this Court reconsider its Order of January 26, 2006 and reinstate her claims against the Ross Defendants. Plaintiff requests such other and further relief as the Court deems just and proper under F.R.C.P. 59. Dated this 1st day of March, 2006.

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Respectfully submitted, DIETZE and DAVIS, P.C. By: "s/ Joel C. Maguire" Joel C. Maguire Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected] Attorney for Plaintiff Isabelle DerKevorkian CERTIFICATE OF SERVICE I hereby certify that on March 1, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John Edwin Bolmer, II [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected] By: "s/ Susan J. Armour" Susan J. Armour, Legal Assistant Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected]

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