Rubis v. Hartford Fire Ins. Co.
| Decision Date | 16 April 2012 |
| Docket Number | CIV. NO. 3:11CV796 (WWE) |
| Court | U.S. District Court — District of Connecticut |
| Parties | GEORGE RUBIS, ET AL v. HARTFORD FIRE INSURANCE CO. |
Plaintiffs George Rubis, David Evans and Henry Barletta are three former employees of The Hartford. The allege discriminatory discharge, claiming that The Hartford laid them off because of their age. Plaintiffs' employment with the The Hartford was terminated effective March 27, 2010.
Before the Court is defendant's Motion to Disqualify [doc. #24] plaintiffs' counsel, the law firm of Madsen, Prestley & Parenteau, LLC, from representing plaintiffs in this case because the firm allegedly violated Rule 4.2 of the Connecticut Rules of Professional Conduct by having ex parte communications with one of the former managers at The Hartford, Gary Kemp, who was involved in the process that led to the elimination of the threeplaintiffs' positions.1 The firm of Madsen, Prestley & Parenteau represented Gary Kemp in a separate administrative complaint of age and race discrimination that Mr. Kemp has filed against The Hartford at the Connecticut Commission on Human Rights & Opportunities ("CHRO") and the Equal Employment Opportunity Commission ("EEOC"). Mr. Kemp's employment with The Hartford was terminated on July 5, 2011.
A hearing on the Motion to Disqualify was scheduled for March 28, 2012. On March 20, 2012, plaintiffs filed an Emergency Motion to Quash Subpoenas [doc. #43], served on plaintiffs' counsel to appear and testify at the evidentiary hearing. Oral argument was held on March 21, 2012, and a ruling was issued on March 23, 2012, granting the Motion to Quash. [Doc. #45]. The hearing on the Motion to Disqualify was postponed to April 27, 2012, to permit defendant to depose Mr. Kemp. [Doc. ##47, 50]. The deposition is scheduled for Tuesday, April 17, 2012.
On April 6, 2012, plaintiffs filed an Emergency Motion for Protective Order to Protect Against Disclosure of Attorney Work Product. [Doc. #56]. Oral argument was held on April 11, 2012.
Specifically, plaintiffs seek an order prohibiting defendant's counsel from asking questions during the deposition of Gary Kemp that will require Mr. Kemp to disclose informationthat is protected under the attorney work product doctrine.
The disqualification of an attorney in order to forestall violation of ethical principles is a matter committed to the sound discretion of the district court. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990); Hogan v. Magana, No. HDSP-134296, 2006 WL 1321282 at *2 (Conn. Super. May 9, 2006) () (citing State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980)). When deciding a motion to disqualify counsel, a court must balance "the need to maintain the highest standards of the profession" against "a client's right freely to choose his counsel." Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (citations omitted).
In view of their potential for abuse as a tactical device, motions to disqualify opposing counsel are subject to particularly strict scrutiny. Scantek Medical, Inc. v. Sabella, 2008 WL 5210562 at *1-2 (S.D.N.Y. 2008) (internal citations omitted). Courts are reluctant to grant motions to disqualify because such motions may be tactically motivated and impinge on a party's right to employ the counsel of its choice. Id. (internal quotation and citations omitted). Finally, courts are alsoreluctant to grant motions to disqualify because they inevitably result in delay and added expense. Id. (citations omitted). For all these reasons, the Second Circuit requires a high standard of proof on the part of the party seeking to disqualify an opposing party's counsel. Id. (citations omitted).
The Hartford moves to disqualify the law firm of Madsen, Prestley & Parenteau, LLC pursuant to District of Connecticut Local Rule 83.2(a) and Connecticut Rules of Professional Conduct, Rule 4.2 ("Communication with Person Represented by Counsel").2 Mr. Kemp was allegedly involved in the reduction in force that led to the termination of plaintiffs' employment in March 2010.Kemp's employment was terminated in July 2011 and he later retained Madsen, Prestley & Parenteau, LLC., who no longer represent him. Mr. Kemp has retained new counsel who will be present during his April 17 deposition.
Although an adverse attorney has a right to interview former employees of a corporation, the attorney is obliged voluntarily to stop short of any inquiry into matters that he or she, as an attorney, knows may be privileged but that the lay employee may not. Most courts have found that Rule 4.2 does not generally bar ex parte contacts with former employees; however, it proscribes inquiry by opposing counsel into matters subject to the attorney-client privilege.
1 Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine, at 785 (5th Ed. 2007) (emphasis added). The language of Rule 4.2 does not expressly prohibit ex parte contact with former employees of a corporate party. The comment to the Rule prohibits communications by a lawyer for one party concerning the matter in representation with: (a) "persons having a managerial responsibility on behalf of the organization," and (b) "with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil . . . liability;" or (c) "whose statement may constitute an admission on the part of the organization." "The first and third characteristics do not apply to former employees since, by definition, they no longer have managerial responsibility andtheir current statements would not constitute admissions . . . of the former employer." Serrano v. Cintas Corp., Civil Action No. 04-40132, 2009 WL 5171802, at *1 (E.D. Mich. Dec. 23, 2009). One court has held, however, that "the second classification is not expressly limited to present acts or omissions, and may well include former employees." Id.
The ABA, in ABA Formal Opinion 91-359, issued March 22, 1991, concluded that Rule 4.2 does not prohibit communications with former employees of a defendant corporation as long as the former employees are not in fact represented by the corporation's attorney. ABA Formal Opinion 91-359 (March 22, 1991) ("[I]t is the opinion of the committee that a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without consent of the corporation's lawyer."). It is undisputed here that Mr. Kemp is not represented by The Hartford and was not employed when he retained the law firm of Madsen, Prestley & Parenteau, LLC.
1 Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine, at 785 (5th Ed. 2007) (citing cases); see Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 2d 948, n.2 (W.D. Va. 2008) ()(citing cases); United States v. W.R. Grace, 401 F. Supp. 2d 1065, 1069 (D. Mont. 2005) ().
A minority of courts, however, have applied Rule 4.2 to former employees in certain situations, such as where the former employee was a member of an organization's management or control group, or where the former employee had privileged or confidential information, or where the conduct of the former employee could have been imputed to the employer. Serrano, 2009 WL 5171802 at *2-3 (internal citations omitted). The Court in Serrano acknowledged that, "the majority of courts have accepted the ABA Committee position that Rule 4.2 simply does not apply to ex parte contacts with an opposing party's former agents, despitethe Committee's admission that persuasive policy arguments exist for extending it to at least some former employees." In Serrano, counsel for the Equal Employment Opportunity Commission ("EEOC") filed a Motion for Leave to Interview the Former Decision Makers Outside the Presence of Defense Counsel, but refused to identify the former defendant employees. The Magistrate Judge wrote, "In the absence of a showing that the potential witnesses were not members of [defendant's] management group, and that they were not privy to confidential or privileged information, I am unable to conclude that Rule 4.2 is totally inapplicable." Id. at *2 (emphasis...
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