Ethics Corner: Third Circuit Vindicates Plaintiff's Attorney
Justin M. Swartz and Cara E. Greene. July, 2007. Ethics Corner is a regular contribution by the ABA, Labor & Employment Law Section’s Ethics and Professional Responsibility Committee.
The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant. EEOC v. HORA, Inc., No. 05-5393, 2007 U.S. App. LEXIS 15705 (3d Cir. June 29, 2007) (unpublished decision). Characterizing the disqualification as “draconian,” the Circuit held that the district court abused its discretion because the lawyer did not violate any ethics rules, and, even if she had, there was no prejudice to the defendant.
The plaintiff’s lawyer, Jana Barnett, represented Manessta Beverly in a sex harassment and retaliation case against a Days Inn franchise and its management company. During discovery, Barnett conducted an ex parte interview of Debbie Richardson, an administrative assistant at the Days Inn. The district court disqualified Barnett for conducting the interview, finding that she violated Pennsylvania Rules of Professional Conduct (“PRPC”) Rules 4.2, 4.4, and 5.7.
The Third Circuit reversed, holding that Barnett did not violate Rule 4.2 because the administrative assistant was not a member of the organization with whom ex parte contact was forbidden. The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant.
Challenges To Law Firm Mandatory-Retirement Policies
Employment law attorney Cara E. Greene writes about Challenges to Law Firm Mandatory-Retirement Policies. This article originally appeared in Law Journal Newsletters' Accounting and Financial Planning for Law Firms, February 2007. For more information, visit www.ljnonline.com. Authored with Gary Phelan.
A 2006 survey report indicated that 57% of law firms with 100 or more attorneys have mandatory retirement age policies. See, L. Jones “Pitfalls of Mandatory Law Firm Retirement,” National Law Journal, May 24, 2006. But legal challenges to mandatory retirement policies at law firms are likely to become more common as baby boomers reach retirement age.
The debate over whether a law firm can have a mandatory retirement age has focused on the threshold question of whether the “partner” is deemed an “employer” or an “employee.” For each class of lawyer, this article explores possible legal remedies.