Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-1234" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2014/11/Proceed-with-caution-220x300.jpg" alt="" width="220" height="300">A federal district court <a href="http://filehost.thompsonhine.com/uploads/15-cv-1696,_Metcalf_v._Yale_f1be.pdf">refused last week</a> to disqualify a Connecticut lawyer in a suit against Yale University, even though finding a violation of the state&rsquo;s version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/">Model Rule 4.2</a>, the &ldquo;no contact rule.&rdquo;&nbsp; Although ruling that disqualification was too extreme a sanction, the court ordered the turnover of interview notes from&nbsp;the lawyer&rsquo;s&nbsp;interview of the improperly-contacted witness.
The case underscores the need to&nbsp;tread carefully when contacting anyone associated with the opposing party.
Coin curator&rsquo;s claim
Yale University has an <a href="https://artgallery.yale.edu/overview-and-highlights">acclaimed art museum</a>, and the museum&rsquo;s former Curator of Coins and Medals sued the university&nbsp;for age discrimination after it terminated his&nbsp;employment.
In addition to being the museum&rsquo;s coin curator, the plaintiff was an adjunct professor in the classics department.&nbsp;&nbsp;The plaintiff&rsquo;s lawyer phoned another professor&nbsp;in the department&nbsp;and interviewed him for 34 minutes as a potential witness, according to the opinion.&nbsp; The other professor had never been involved in a law suit, and later said that it did not occur to him during the interview that he needed to consult with Yale&rsquo;s lawyers before answering questions from the opposing side.
Yale&rsquo;s counsel only learned about the interview six weeks later, and promptly moved to disqualify the plaintiff&rsquo;s counsel for violating the no-contact rule, asserting that the professor interviewed was a represented&nbsp;&ldquo;party&rdquo; who was off-limits under the rule, absent consent from Yale&rsquo;s lawyers.
Conceded &ldquo;technical&rdquo; violation
<a href="https://www.jud.ct.gov/Publications/PracticeBook/PB.pdf#page=8">Connecticut&rsquo;s Rule 4.2</a> differs from the Model Rule by barring communication about the subject of the representation &ldquo;with a party the lawyer knows to represented by another lawyer in the matter,&rdquo; without the other lawyer&rsquo;s consent.&nbsp; (The Model Rule uses the word &ldquo;person,&rdquo; not &ldquo;party.&rdquo;)&nbsp; This raises the question &ldquo;Who is included as a party?&rdquo; for purposes of the no-contact rule, especially when an organization is a party.
Under the Connecticut rule comments, a &ldquo;party&rdquo; includes an organization&rsquo;s employees with managerial responsibility; employees whose act or omission in connection with the matter may be imputed to the organization; and employees whose statements may constitute an admission&nbsp;of the organization.&nbsp; While not express in the opinion, the profession presumably fell into one of these categories &mdash; perhaps the third one.
The plaintiff&rsquo;s lawyer conceded that&nbsp;his interview raised&nbsp;a&nbsp;&ldquo;technical violation&rdquo; of Rule 4.2, but that it had been inadvertent, because the professor and the plaintiff were close colleagues and the lawyer regarded the professor as a witness on behalf of the plaintiff.&nbsp; The lawyer argued that he had no&nbsp;intent to gain an unfair advantage,&nbsp;and&nbsp;that Yale was not prejudiced.
Trial taint needed for DQ
The district court agreed that the circumstances did not merit disqualification, notwithstanding the conceded rule violation.
As in many other jurisdictions, there is authority in the Second Circuit that disqualification motions require balancing the need to uphold ethical standards with a party&rsquo;s right to freely-chosen counsel.&nbsp; Therefore, an ethical violation, standing alone, might not&nbsp;be sufficient to mandate disqualification.&nbsp; Many opinions in the Second Circuit and elsewhere hold that the remedy of disqualification is justified only when a violation poses a significant risk of trial taint.
The court agreed that disqualification was not necessary here.
Here, the district&nbsp;court explained, the taint concern was that the plaintiff&rsquo;s lawyer had obtained confidential information about Yale&rsquo;s litigation strategy from the professor, who had previously discussed the case with Yale&rsquo;s lawyers.&nbsp; The plaintiff&rsquo;s lawyer had proposed to provide the court with the notes from the interview for in camera review; but the best remedy, said the court, was to order the lawyer to turn the notes over to Yale&rsquo;s counsel.
Take-home lessons
If you&rsquo;re involved in representing a client in any matter (not just litigation), you need to take heed of the no-contact rule.&nbsp; As this case highlights, the rule comes in different flavors depending on jurisdiction.&nbsp; While the case here involved disqualification, there is also&nbsp;always&nbsp;the possibility of disciplinary action from violating an ethics rule.&nbsp; Last, the court&rsquo;s order to&nbsp;turn over&nbsp;the interview notes &mdash; clear attorney work product &mdash; to the opposing party is a surprising remedy.&nbsp; But obviously, such an order can&rsquo;t be ruled out in circumstances that would appear to call for it.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

No DQ for violation of no-contact rule, but notes of interview must be turned over, says district court