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Legal Ethics

Lawyer’s Contact Not a Violation

Posted Jul 5, 2007 7:54 AM CDT
By Debra Cassens Weiss

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A federal appeals court has ruled that a lawyer for a discrimination plaintiff did not violate ethics rules by communicating directly with an employee for the defendant.

As a result, Jana Barnett was not disqualified from representing the plaintiff, the 3rd U.S. Circuit Court of Appeals ruled Friday in an unpublished decision (PDF). The plaintiff had contended Days Inn fired her because she complained of sexual harassment.

U.S. District Judge Gene E.K. Pratter had barred Barnett from representing the plaintiff because the lawyer had contacted an employee with access to confidential information, using that person as "an informational mole," the Legal Intelligencer reports.

But the 3rd Circuit based in Pennsylvania ruled state ethics rules bar direct contact with an unrepresented worker only in three circumstances: when that person regularly consults with company lawyers on the matter in question, when the employee has the authority to obligate the company with respect to the matter, or when the employee’s acts could be imputed to the company.

Barnett's lawyer, Stephen Neuberger of Wilmington, Del., told the Intelligencer he was pleased with the court's ruling because it vindicates his client and "clears her good name."

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