fully disclosing their representative capacity and the true motive behind obtaining such information. In light of the numerous airline incidents that have occurred in recent years, with ATR planes in particular, it is not illogical to suspect that the ATR pilots might respond overzealously in an attempt to generate a quick favorable response by the FAA. The illusive language used in the cover letter may have ultimately led the ATR pilots to make exaggerated or untrue statements in order to protect their own livelihoods.
The fact that Plaintiffs' Counsel, themselves, did not actually develop the ATR Questionnaire and cover letter is irrelevant with regard to their accountability for such actions. According to Rule 8.4(a)(2), "[a] lawyer shall not induce another to engage in conduct, or give assistance to another's conduct, when the lawyer knows that conduct will violate these Rules." Therefore, Plaintiffs' Counsel are legally responsible for the violation of Rule 4.3 since they hired the intermediary and Mr. Rendzio, thereby "inducing" them to formulate the ATR Questionnaire and misleading cover letter. An attorney can not evade his professional and ethical obligations by delegating the job of developing and distributing deceptive materials to a paid expert or consultant.
C. RULE 3.4(c) VIOLATION
The Airline Defendants finally claim that the "secretive nature" of the ex parte contact was an attempt to circumvent their right, under Rule 3.4(c), to instruct their pilots to "refrain from voluntarily" providing any information in response to the ATR Questionnaire. In particular, the Airline Defendants contend that Plaintiffs' Counsel's failure to disclose their identity in the cover letter, or at the time the Airline Defendants originally questioned the possible connection, prohibited the Airline Defendants from requesting that the Simmons pilots refrain from voluntarily responding to the ATR Questionnaire. While this Court fully sympathizes with the position of the Airline Defendants, we believe that we can not give Rule 3.4(c) the expansive breadth that Defendants propose, especially because this Rule, like the others, is a strict liability rule. Under the circumstances of this case, Plaintiffs' Counsel did not affirmatively violate Rule 3.4(c).
The Airline Defendants seek the following relief with regard to the above violations: (1) a requirement that any questionnaires returned in response to the initial distribution be turned over to the Airline Defendants, with a certification that neither copies of the questionnaires nor the information in them has been retained or used; (2) a continuance of the current order barring Plaintiffs' Counsel from any further distribution of questionnaires to the Airline Defendants' pilots, and a court ordered procedure for removing from Plaintiffs' Counsel the list of the Airline Defendants' pilots; (3) a requirement that if Plaintiffs' Counsel intends to send questionnaires to pilots other than the Airline Defendants' pilots, they shall use a Court-approved letter; (4) a bar of all Plaintiffs' Counsel from contacting the Airline Defendants' employees, except as permitted by the Federal Rules of Civil Procedure; and (5) an award for the Airline Defendants of all reasonable fees and costs related to this issue. (Def. Mem. at 13-15).
The Supreme Court has made it clear that a federal court's decision to admit to practice or discipline an attorney arises from an exercise of that court's inherent power. In Re Snyder, 472 U.S. 634, 645 n.6, 86 L. Ed. 2d 504, 105 S. Ct. 2874 (1985). Thus, this Court has broad discretion to award the Airline Defendants the relief they seek herein. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990).
In deciding the appropriate sanctions for the ethical violations found by this Court, it is appropriate to consider the seriousness of the violations and whether the violations were intentional, as well as the nature and extent of prejudice suffered or likely to be suffered by the parties in the future as a result of the violation. See generally, In re American Airlines, Inc., 972 F.2d 605, 611 (5th Cir. 1992). After careful consideration of all the relevant factors this Court has concluded that granting all the requested relief sought by the Airline Defendants, would not be appropriate in this case.
Based on its review of all the relevant factors, this Court grants the Airline Defendants' Motion for sanctions and orders that: (1) all questionnaires be returned to the Airline Defendants' counsel within fourteen days of this order; (2) the current order barring Plaintiffs' Counsel from any further distribution of the questionnaires be extended until such time as the Court approves a questionnaire procedure, if and when requested by the parties; and (3) this Court will bar the questionnaires from being offered as evidence in this case.
This Court seriously contemplated the use of further sanctions in this case, including monetary sanctions. The Court, however, has come to the conclusion that further sanctions are not appropriate under the circumstances of this case. As noted several times herein, the Court has found that Plaintiffs' Counsel did operate in good faith but used poor judgment. The Court is also mindful of the fact that there is a general absence of case law in this area. Finally, and most significantly, the Court is well aware that these motions and this resulting opinion is more than enough punishment for Mr. Clifford. The Court has no question in its mind that Mr. Clifford will not violate the Rules in the future. More importantly, this opinion should have a future deterrent effect on other members of the bar who are considering any actions subject to debate under our Court's ethical rules. Other members of the bar are hereby on notice that their actions may lead to more serious sanctions than those issued by this Court today.
This Court has and continues to have high regard for the Plaintiffs' Counsel whose conduct has been reviewed herein. Plaintiffs' Counsel have a long and successful history of service to their clients and to Chicago's legal community. Unfortunately, yesterday's good actions do not serve to excuse today's failures.
Today, the Court finds that Plaintiffs' Counsel, as experienced and able counsel, should have known that their retention of Mr. Rendzio and his company would lead to the ethical violations we find today. Therefore, Plaintiffs' Counsel were obligated by the Rules of Professional Conduct to contact opposing counsel in order to provide them with a fair opportunity to seek prior court review of this issue. Alternatively, Plaintiffs' Counsel should have contacted this Court to obtain prior permission for their questionnaire.
This Court fully realizes that the demarcation between aggressive lawyering, which is praised, and unethical conduct which is sanctioned, is too often clouded. Perhaps more case law, such as this opinion, is needed in this area. Nevertheless, the facts surrounding the disputed questionnaire disclose clear ethical violations which can not be condoned by this Court.
Finally, this Court specifically notes that Plaintiffs' Counsel did not intentionally set out to violate the Professional rules of Conduct reviewed herein. Instead, this Court notes that ethical violations reviewed herein were caused by Plaintiffs' Counsel's understandable desire to zealously represent the families of the crash victims of Flight 4184. However, even zealous advocacy must confine itself to the Rules of Professional Conduct--violation of which does not require intentional conduct. Instead, as must be the case, these Rules are more in the nature of strict liability rules. Today, this Court gives renewed force to these strict liability rules in the hope that the entire bar seriously consider the Rules of Professional Conduct before proceeding with action which is subject to any debate under the Rules.
For all the reasons indicated herein, this Court grants the Airline Defendants' Motions for Sanctions and hereby orders that: (1) any questionnaires returned in response to the initial distribution be turned over to the Airline Defendants' counsel within fourteen (14) days of this order; (2) that the current order barring Plaintiffs' Counsel from any further distribution of the questionnaires will be extended until such time as the Court approves a questionnaire procedure, if and when requested by the parties; and (3) this Court will bar the disputed questionnaires from being offered as evidence in this case.
United States District Judge
November 17, 1995
SAFETY RESEARCH CORPORATION OF AMERICA
Program Development . Research . [ILLEGIBLE TEXT]
106 [ILLEGIBLE TEXT] Circle, Suite A
Ozark, Alabama 36360-3528
(205)774-1555, FAX (205)774-2331
May 16, 1995
Mr. Robert J. Baptist
680 Kenwood Road
Fayetteville, GA 30214-3303
Dear Mr. Baptist:
Safety Research Corporation of America (SRCA) is conducting an independent survey regarding ATR-42 and ATR-72 pilots. The information necessary to contact you was provided to us by the FAA and will be held in the strictest confidence.
The enclosed survey examines your experiences during icing conditions and asks detailed information about your pilot training, your general experience, your education, and your company's current training procedures. In our attempt to keep the questions to an absolute minimum, the survey addresses issues pertaining to icing with the ATR-42 and ATR-72. Please feel free to add any additional comments you may have on this topic.
The questionnaire is self-explanatory and includes a "Personal Information" section at the end if you are interested in obtaining the results, or if you are willing to take part in future research. However, it is not necessary to fill the section out if you wish to remain anonymous. Again, we assure you that your name or address will not be shared with any other party. We thank you for your cooperation, and look forward to receiving your survey (using the enclosed return envelope) within the next two weeks. If you prefer to speak with us, please contact us at (334)598-8893.
[SEE SURVEY IN ORIGINAL]