Weibrecht v. Southern IL Transfer, Inc.

• Citation: 241 F.3d 875
• Decision Date: 27 February 2001
• Docket Number: No. 00-1563,00-1563
• Parties: (7th Cir. 2001) Shane Weibrecht, Plaintiff-Appellant, v. Southern Illinois Transfer, Inc., Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 875

241 F.3d 875 (7th Cir. 2001)

Shane Weibrecht, Plaintiff-Appellant, v. Southern Illinois Transfer, Inc., Defendant-Appellee.

No. 00-1563

In the United States Court of Appeals For the Seventh Circuit

Argued October 23, 2000

Decided February 27, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 98-CV-235-GPM--G. Patrick Murphy, Chief Judge. [Copyrighted Material Omitted] Before Posner, Diane P. Wood, and Williams, Circuit Judges.

Diane P. Wood, Circuit Judge.

Contacts between lawyers and "represented parties" raise some of the thornier issues in the area of legal ethics. This case turns on one variant of the problem: whether a provision of the Federal Employers' Liability Act (FELA), 45 U.S.C. sec.sec. 51-60, overrides an ethical rule adopted by the federal district court that prohibits attorneys from contacting parties represented by other counsel under the circumstances presented here. The district court concluded that the lawyer in question had violated the ethical rule, that the FELA provided no excuse, and that the situation was so egregious as to call for outright dismissal of the client's case. We agree with everything but the last point, and thus we remand for further proceedings on the remedy.

I

Kenneth Weibrecht was a deckhand for Southern Illinois Transfer. On the morning of February 16, 1998, Kenneth and another Southern Illinois Transfer employee, Mike Bader, were in the process of attaching a barge to a tug. Bader was the pilot of the tug and was in charge of the operation; Kenneth's job was to disconnect the barge from another vessel so that it could be attached to the tug. During the operation, Kenneth somehow slipped into the water and drowned. No other Southern Illinois Transfer employees were present during the operation. After his father's death, Shane Weibrecht brought this suit under the Jones Act, 46 U.S.C. App. sec. 688, which incorporates the FELA for the purposes relevant to this case. In it he alleged that Southern Illinois Transfer was negligent in not having more deckhands involved in the operation, in not requiring Kenneth to wear a life preserver, and in not maintaining the safety and seaworthiness of the barge Kenneth was working on.

From the start, the case was plagued by more than its share of missteps. Initially, the plaintiff in the suit was Marilyn Weibrecht, Kenneth's wife, who had opened a probate estate proceeding in Illinois with herself as representative. Problems arose when it turned out that Shane had already done the same thing in Missouri (naming himself as representative) before Marilyn had acted. The district court concluded not only that Marilyn was not authorized to sue as a representative of her husband, but also that certain statements in Marilyn's Illinois probate application were "misstatement[s], approaching fraud." Despite its misgivings, and perhaps giving Shane and Marilyn's "innocent mistake" explanation the benefit of the doubt, the court dismissed the case without prejudice and permitted the Weibrechts to refile substituting Shane as the plaintiff. They did so, and the case proceeded to discovery, where additional problems arose. At one point, the defendants sought and were awarded a $300 sanction for the plaintiff's failure to respond to requests for information and interrogatories.

Against this backdrop, the parties scheduled Bader's deposition for December 16, 1999. On December 14, Shane personally contacted Bader and discussed with him the Weibrechts' theory that there should have been at least two deckhands on the barge at the time of the accident. Shane also told Bader that the lawsuit was his mother's doing and that the purpose of the lawsuit was not to recover money but to make Southern Illinois Transfer a safer place to work. Shane then suggested that Bader should contact the Weibrechts' attorney, Michael McGlynn. The district court found (over McGlynn's protestations to the contrary) that Shane made this call to Bader at McGlynn's suggestion. In any event, it is undisputed that on the next day, McGlynn called the Bader residence, asked to speak to Bader, and left a message asking Bader to call him. McGlynn insists the only purpose of his call was to make sure Bader was aware that the time of the deposition had been changed.

On December 22, Southern Illinois Transfer filed a motion for sanctions based on the two calls to Bader, claiming that they violated Rule 4.2 of the district court's rules of professional conduct (based on the Illinois rule of the same number), which governs contacts between attorneys and parties represented by another lawyer and in general prohibits such contacts without the consent of the other lawyer. Inexplicably, McGlynn did not see the motion until the court mentioned it at a pretrial conference on January 24. McGlynn admitted that he was "caught off guard" at the pretrial conference and was unable to provide the district court with any case citations to back up his arguments that his conduct was permissible. Nevertheless, McGlynn argued that in Jones Act cases, the FELA specifically permits a plaintiff's lawyer to contact the defendant's employees and that this provision overrides any ethical prohibition on such contact. In the alternative, McGlynn argued that, as he understood the relevant ethical rules, Bader was not a sufficiently high-level manager at Southern Illinois Transfer to be considered represented by Southern Illinois Transfer's lawyer. McGlynn requested additional time to flesh out these arguments, but the district court, noting that McGlynn's office apparently had received the motion over a month before the hearing, declined his request for additional time, found that he had violated the rule, and dismissed the case with prejudice. McGlynn subsequently filed Rule 59(e) and Rule 60 motions in which he fleshed out his argument for why his conduct did not amount to an ethical breach, but the district court declined to amend the judgment or reopen the case.

II

A. Interaction Between Ethical Rules and the FELA

The Southern District of Illinois has adopted Illinois's ethical rules as its own rules of professional conduct, see Southern District of Illinois Local Rule 83.4(d)(2), relying on both its power to enact local rules under Fed. R. Civ. P. 83 and its "inherent power and responsibility to supervise the conduct of attorneys admitted to practice before it." Local Rule 83.4, para. 1. The text of the rule McGlynn allegedly violated was therefore identical to its Illinois counterpart, Illinois Rule of Professional Conduct 4.2, which provides:

During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.

(We refer to this as S.D. Ill. Rule 4.2 where the federal character of the rule is important; otherwise, where we are referring to all state or federal rules with the same text, we refer to it simply as Rule 4.2.) Despite the identity of language between the Illinois rule and the federal local rule, there is still a distinction between the two, even if it is a fine one. See, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 728-30 (1979); Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). (This is not an instance where a federal court must decide whether federal preemption principles implicitly require a federal rule, but a rule whose content mirrors state law; we have the easier case where the federal authority has explicitly adopted the state law.) The consequences for federal-state comity of a decision pertaining to one or the other are quite different, for example. Once the federal court adopts the text of the state rules, it has its own professional responsibility standards, and any interpretation it may wish to give the rules is not binding in any sense on the Illinois courts. More importantly for this case, because we are dealing with a potential conflict between a federal local rule and a federal statute, rather than a state rule and a federal statute, the parties' focus on whether the local rule is "preempted" by the FELA is misplaced. Rather, the appropriate question is whether the federal statute supercedes the local rule. Although the concepts of preemption and supercession are closely related, they are distinct doctrines. See United States v. Klubock, 832 F.2d 649, 651 (1st Cir. 1987). Whether the federal statute supercedes the local rule is a question of federal statutory interpretation which we review de novo. Dell v. Board of Education, Township High School District 113, 32 F.3d 1053, 1058 (7th Cir. 1994).

With this correction to the governing analysis in place, we turn to the question whether McGlynn's attempt to contact Bader violated S.D. Ill. Rule 4.2. McGlynn concedes that at first blush the rule appears to prohibit what he did, but he argues that Rule 4.2 for this purpose is superseded by sec. 60 of the FELA, which, by virtue of the Jones Act, 46 U.S.C. App. sec. 688, governs suits by maritime workers for employment- related injuries. See O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 38-39 (1943). Section 60 provides:

Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void . . . .

45 U.S.C. sec. 60.

According to McGlynn, S.D. Ill. Rule 4.2 is exactly the kind of "rule, regulation, or device" that sec. 60 is talking about, because it might have the effect of preventing maritime employees from voluntarily furnishing relevant information to a Jones Act plaintiff's attorney. B...