Jottings By An Employer's Lawyer

Tuesday, June 14, 2005

Beware of the Inside Mole - An Ethical Issue for the Plaintiff's Employment Lawyer

One of the issues of substantial sensitivity in the employment law area is which of an employer's past or present employees is fair game for a plaintiff's lawyer to talk to. Given that professional ethics are a matter of state law the legally correct answer may depend on the location of the lawyer, the witness or both. The importance of not only being aware, but sensitive to the significant nuances a lawyer's competing obligations is highlighted in last week's 38 page opinion disqualifying a plaintiff's lawyer for her communications (and use of those communications) with an "informational mole." EEOC and Beverly v. HORA, Inc. (E.D. Pa. 6/8/05) [pdf]. A hat tip to Shannon Duffy's story in the Legal Intelligencer for leading me to the opinion, as well as giving a good overview of the complex issues.

When Ms. Beverly, a probationary employee, was terminated for complaining of sexual harassment by a fellow hotel employee, her co-employee, the administrative assistant to the hotel manager and a part-owner of the hotel, became a source of information for Ms. Beverly's lawyer. In an email exchange that extended for a considerable period of time the source passed on information the Court concluded was proprietary and in some cases privileged. The Court found the exchange and the information gathering to have been instigated by Beverly's lawyer, and ultimately to go beyond the proper role of counsel. As a result, the plaintiff's lawyer who had intervened into a lawsuit originally filed by the EEOC, has been disqualified.

Although Judge Gene E.K. Pratter did note that many might consider the ethical issues with which the plaintiff's lawyer, Jana Barnett, was faced as "unsettled," he also articulated his view of the high standard by which lawyers' conduct should be judged:

A lawyer who exalts his or her responsibility as a client's agent to the point of ignoring the lawyer's responsibilities flowing from the lawyer's simultaneous, and equally important, role as officer of the court and as a professional whose conduct affects the quality of justice and public perception of the legal profession does not meet the letter or spirit of the rules of ethics or the expectations of the Court. Such a lawyer contributes to the causes for the scorn so many laypersons now seem to have for lawyers and the reportedly widespread distrust of our legal system. The standards of conduct applicable to and expected of lawyers require more than merely comporting oneself to escape discipline. Stated differently, the ethical rules ought not be read as an intellectually meager, uninspiring statement of minimum standards to be abused by those who would argue that lawyers need only meet those minimum standards.

Although some may see the issues here in black and white, like many things in the law it appears more gray to me. I hope the case will be the subject of discussion in those blogs which focus on the area of professional responsibility such as Ben Cowgill's Legal Ethics Blog (once he gets the issue associated with the Kentucky Bar's view of blogs which has caused a major storm in the blogosphere resolved), David A. Giacalone's f/k/a formerly known as ethicalEsq., and the group blog the Legal Ethics Forum. I, for one, will be watching.

Update: John Steele at the Legal Ethics Forum in his Quick Hits comes at it more from the black and white view, after pointing out the holding of the case, asking, "And who would disagree with that holding? It's one of those stories that prompts the eternal question, "what were they thinking?" It's not apparent from the link that he provides that he has read the actual court opinion or just the excellent summary by Shannon Duffy, but he may well have the same view after reading the whole opinion (which he may well have done.)

Of course, those of us who practice in the employment law area understand that it is incredibly difficult to get employees to testify against their employer. These employees end up being well prepped by their company’s attorneys before being deposed. They are fearful for their job or other retaliation. Prohibiting attorneys from speaking directly to the companies employees is unfounded. If the adverse lawyer fully advises that employee that they have no obligation to speak to them, that they have a right to seek independent counsel and that their company might also provide them counsel is adequate protection enough. Employees ought to be able to make their own intelligent decision about who they can and cannot speak to. Employees don’t belong to employers.
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