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IN RE AIR CRASH DISASTER NEAR ROSELAWN

November 17, 1995

IN RE AIR CRASH DISASTER NEAR ROSELAWN, INDIANA ON OCTOBER 31, 1994


The opinion of the court was delivered by: CASTILLO

 This is the second opinion this Court is issuing today in this case. In its initial opinion ("Roselawn I") this Court determined that it has jurisdiction to preside over the consolidated cases which have been filed as a result of the tragic crash of American Eagle Flight 4184. This opinion ("Roselawn II")1 involves a serious ethical issue which will often be confronted by plaintiffs' attorneys who seek to aggressively represent their clients. This issue is presented to the Court in the form of the Airline Defendants' *fn2" motion for sanctions, which alleges that members of the plaintiffs' counsel violated certain of the Rules of Professional Conduct for the Northern District of Illinois, ("Rules") which were promulgated by this district on October 29, 1991 and which became effective on November 12, 1991. Specifically, the Airline Defendants claim that plaintiffs' counsel, Robert A. Clifford, and his co-counsel, Corboy & Demetrio P.C., (hereinafter referred to as "Plaintiffs' Counsel") engaged in unethical conduct in violation of Rules 4.2 and 4.3. In light of the seriousness of the alleged transgressions, the Airline Defendants request that this Court impose sanctions on Plaintiffs' Counsel "to make sure that [Plaintiffs'] Counsel do not benefit from this misconduct, and to discourage others from engaging in that similar misconduct." (Def. Mem. at 3).

 BACKGROUND

 The facts surrounding this consolidated multidistrict litigation are amply set forth in Roselawn I and will not be repeated here; however, review of certain additional relevant facts is in order. The aircraft involved in this crash was an ATR 72-212, manufactured by Avions de Transport Regional ("ATR") and flown by Simmons Airlines, Inc. ("Simmons"). ATR, Simmons, and various corporations related to them are defendants in the consolidated lawsuits pending before this Court. On June 13, 1995, the Court entered a Scheduling Order which allowed damages discovery to proceed but deferred liability discovery in light of: (1) the then pending motions to remand almost all the cases back to state court; (2) the then pending motion to consolidate all the cases arising out of the accident under the rules for multidistrict litigation and (3) the still pending National Transportation Safety Board ("NTSB") investigation into the causes of the crash of American Eagle Flight 4184.

 The Disputed Questionnaire

 On or about May 24, 1995, the Airline Defendants learned that several Simmons pilots had received a letter and questionnaire ("the ATR Questionnaire") from Robert Rendzio, who is the president of a consulting firm named Safety Research Corporation of America ("SRCA"). (Def. Mot. for Lim. Disc. P 2). A representative sample of one of these letters and questionnaires is attached to this Opinion as Appendix A. The main focus of the ATR Questionnaire pertained to the training and experience of ATR pilots in icing conditions. In light of the fact that the NTSB was investigating whether icing conditions played a significant role in causing the accident, the Airline Defendants became suspicious that the ATR Questionnaire was in some way linked to the pending litigation. *fn3"

 The Airline Defendants found portions of the letter and ATR Questionnaire to be objectionable. For example, the ATR Questionnaire allowed for pilots to provide their names and addresses when responding, thereby making known the identity of the survey respondent. Moreover, the Airline Defendants found the cover letter that accompanied the ATR Questionnaire to be "misleading." Specifically, the cover letter stated, without further clarification, that Mr. Rendzio received the names of the pilots from the FAA - thus implying that the ATR Questionnaire was endorsed by the FAA. The cover letter also suggested that the questionnaire was being conducted by a disinterested party.

 The Airline Defendants began investigating to find out whether, indeed, the ATR Questionnaire had been commissioned by Plaintiffs' Counsel. After contacting Mr. Rendzio several times, the Airline Defendants were unable to ascertain the identities of the persons who commissioned the survey. Furthermore, time was becoming an important factor for the Airline Defendants. Though SRCA had only sent the first sample of ATR Questionnaires to 50 ATR pilots, a second sample of 200 and a third sample of 800 were scheduled to be distributed in the near future. In fact, the Airline Defendants claim that during a June 16, 1995, telephone conversation, Mr. Rendzio stated that the "intermediary" had instructed him to resume sending the questionnaires to ATR-qualified pilots, including pilots employed by Simmons. (Def. Mot. for Lim. Disc. P 7).

 Because the Airline Defendants were unable to determine the identity of those persons who had commissioned the survey and more ATR Questionnaires were about to be sent, the Airline Defendants prepared to file a motion for leave to take limited discovery in order to determine whether Plaintiffs' Counsel were involved in the distribution of the ATR Questionnaire. *fn4" The information sought by the Airline Defendants included: (1) the identity of the "undisclosed client" who commissioned the ATR Questionnaire, and (2) the identity of the "intermediary" who provided directions to the ATR Questionnaire developer and distributor, Mr. Robert Rendzio, of SRCA. (Def. Mem. at 1).

 However, on June 26, 1995, the day before the hearing on this motion was to take place, Robert A. Clifford, representing certain plaintiffs in these cases, telephoned the Airline Defendants' Counsel and admitted that he and his co-counsel, Corboy & Demetrio P.C., were the "undisclosed clients" who had commissioned the ATR Questionnaire. (Def. Mem. at 2). In addition, Mr. Clifford admitted that the "intermediary" was a consulting expert whom Mr. Clifford had retained to work on the litigation arising out of the Roselawn accident. Id. The next morning, on June 27, Mr. Clifford made these same admissions to the Court. *fn5" Following such disclosure, the Airline Defendants converted their discovery motion into a motion for sanctions. (Def. Mem. at 3).

 The Clifford Affidavit

 This Court has closely reviewed Mr. Clifford's affidavit and concluded that it establishes his good faith and intentions. This affidavit candidly acknowledges that "in hindsight--a logical extension of the completed survey process could possibly result in a managerial or supervisory person's receipt of the survey." (Id. at 4) In his apology to the Court, counsel, and the Airline Defendants, Mr. Clifford admits that "contact with a represented party' under [the] circumstances may well be criticized." (Id.) However, he notes that "it is a far cry from something that occurred intentionally or with the inappropriate scheme erroneously outlined by Defendants." (Id.). In his defense, Mr. Clifford asserts that "it was not until after finding out about the Jenner & Block motion that [he] knew the identity of the survey company, the fact that the survey indeed has been started on a phased process and the format of the survey." (Id.). Mr. Clifford also generally asserts that it was his "understanding that similar surveys had been conducted in other commercial air crash disaster litigation." (Id. at 3). However, no specific cases are detailed.

 DISCUSSION

 The Airline Defendants assert that Plaintiffs' Counsel engaged in conduct that is contrary to the Rules by (1) sending the cover letter and ATR Questionnaire to ATR pilots employed by Simmons constituted an ex parte contact in violation of Rule 4.2; (2) contacting "unrepresented persons" in violation of the requirements set forth in Rule 4.3; and (3) circumventing the Airline Defendants' right under Rule 3.4(c) *fn6" to instruct the pilots to refrain from voluntarily answering the Questionnaire. (Def. Mem. at 3).

 I. VIOLATIONS OF THE RULES OF PROFESSIONAL CONDUCT

 In response to the foregoing allegations, Plaintiffs' Counsel first assert that their conduct should be governed by the Illinois state laws of professional conduct rather than the Rules of this Court. Plaintiffs' Counsel argue that the state rules should apply because the "cases originated in the Circuit Court of Cook County" and "the steps which led to the preparation and use of this questionnaire arose at a time when these matters were still before the Illinois courts." (Pl. Resp. at 4, 6). Such arguments, however, are unpersuasive because the ATR Questionnaires were distributed and the contact occurred well after the cases had been removed to federal court. *fn7" (Def. Rep. Mem. App. A). Plaintiffs' Counsel had more than enough time to re-evaluate their decision to distribute the ATR Questionnaires under the Rules. It is well-settled that this Court has the "inherent authority to regulate the conduct of the members of the bar who have occasion to practice before it." Harceg v. Brown, 512 F. Supp. 788, 790 (N.D. Ill. 1981) (citing Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976) and Cannon v. U.S. Acoustics Corp., 398 F. Supp. 209 (N.D. Ill. 1975)). Therefore, since the alleged ex parte contacts occurred while the cases were before this Court, the Rules of this Court shall apply. *fn8"

 The Airline Defendants claim that sending the cover letter and questionnaire to the Airline Defendants' ATR pilots was an ex parte contact in violation of Rule 4.2. Rule 4.2 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.

 Rule 4.2 serves two distinct but related purposes. It preserves the integrity of the lawyer-client relationship by prohibiting contact, absent consent or legal authorization, with the represented party. Public Serv. Elec. & Gas Co. v. Associated Elec. & Gas Ins. Serv., 745 F. Supp. 1037, 1039 (D.N.J. 1990) (citing Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55 (1932)). It also recognizes that without such a Rule "the professionally trained lawyer may, in many cases, be able to win, or in the extreme case coerce, damaging concessions from the unshielded layman." Id. The Rule is designed to prevent counsel from overreaching and exploiting uncounseled employees into making ill-considered statements or admissions. Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 624 (S.D.N.Y. 1990). While the Rule is not intended to prevent a party from discovering potentially prejudicial facts, it is intended to protect the attorney-client relationship of counsel with a corporate client. See Breedlove v. Tele-Trip Co., Inc., 1992 U.S. Dist. LEXIS 12149, No. 91 C 5702, 1992 WL 202147, at *1 (N.D. Ill Aug. 14, 1992).

 In those cases where the parties are individuals, Rule 4.2 is easily enforced because it is easy to identify the "represented parties" protected. However, when the named party is a corporation, as in the instant case, it is more difficult to delineate the parameters and scope of the protected class. Corporations can only act through individuals; but it can be troublesome to determine which individuals are the "represented parties" protected by the ...


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