The three individual county commissioners and six other individuals who are suing the county commissioners and four solar companies claim that there is no conflict of interest for Lawyer Jennifer Hill to represent the county commissioners as an entity.
On January 30th, Jennifer Hill filed a motion to withdraw from the lawsuit. She was defending the county commission, which now consists of David Beerbower, Leroy Kruger, and Brandon Whisenhunt. Since those three individuals are all plaintiffs in the lawsuit suing the county commissioners, Hill said that trying to represent them would violate KRPC 1.7, which says that a lawyer can’t represent one client if doing so would be directly adverse to another client. An example might be: It would be impossible for Hill to have any private communication with the county commissioners without that communication being known by at least three of the plaintiffs since they are the same people. If disclosing to the plaintiffs conversations that were intended for the defendants could be adverse to the defense, then there would be a conflict.
The plaintiffs (Beerbower, Kruger, Whisenhunt, and the other individuals who are suing the county commissioners) have responded through their lawyer, saying that while the idea of a conflict has some “facial appeal” there is actually no conflict involved.
The motion to withdraw alleges, in effect, that the plaintiffs who are now members of the Board of County Commissioners are the same party as the defendant Board of County Commissioners Ms. Hill represents and, therefore, her continued representation of the Board of County Commissioners would also be a representation of the board members who are plaintiffs. An attorney has a conflict under Rule 1.7(a)(1) when “the representation of one client will be directly adverse to another client.” That analysis may have some facial appeal, but it is incorrect.
Comment 2 to Rule 1.7 teaches that assessing whether there is a conflict begins with clearly identifying the clients or clients. The Board of County Commissioners of Bourbon County is Ms. Hill’s client. It is a corporate entity and by statute is the properly named defendant in actions against a county. See K.S.A. 19-105. Its legal identity does not change depending on who its current members are. Ms. Hill represented the same entity now that she represented at the beginning of the case.
The objection goes on to state that, since the board members have no individual authority as a commission when it comes to county business, the board has a legal identity separate from that of the individuals. Since Beerbower, Kruger, and Whisenhunt are suing the county commissioners in their capacity as individuals, they claim that action is separate from any action they could bring acting together as the county commission. They claim that since Hill is representing the commissioners but not the individual members of the board, there is no conflict with her continuing to provide legal counsel to the board. There is no mention of how Hill could communicate with Beerbower, Kruger, and Whisenhunt in their role as commissioners without the communication being known by Beerbower, Kruger, and Whisenhunt in their role as plaintiffs who filed the lawsuit.
It might not immediately be apparent why the plaintiffs would care why the defense counsel withdraws, but presumably, if the plaintiffs agree that there is a conflict of interest, that conflict may apply to the defense side of the lawsuit as well since the conflict would come from having the same individuals (though acting in different capacities) both pursuing the lawsuit and defending against it. Further, if there is a conflict for Hill, then any lawyer would have the same conflict. If there is a conflict, the conflict derives from the fact that Beerbower, Kruger, & Wisenhunt are on both sides of the lawsuit regardless of whether they are acting as an individual on one side and the commission on the other. Any attempt to replace a lawyer would not affect a conflict based on an overlap of individuals between the plaintiffs and defendants. If there is a conflict with that as the root, it could only be resolved if the three commissioners were somehow no longer a party to one side of the lawsuit.
The plaintiffs go on to state that they are fine with Ms. Hill withdrawing from the case and posit that she might want to leave because she was hired by an insurance company that has now decided there is no coverage to represent the commissioners in the lawsuit. If Hill is allowed to withdraw, they ask that the proceedings wait until Beerbower, Kruger, & Wisenhunt, in their role as commissioners, retain a lawyer who can help defend against the lawsuit from Beerbower, Kruger, Wisenhunt, et al. in their roles as individuals.
BB-2024-CV-000075 – Plaintiffs Partial Objection to Jennifer Hills Motion for Leave to Withdraw.
BB-2024-CV-000075 – Original Lawsuit filed against the commission