with plaintiffs in the instant action and the other state action in exchange for a promise by the plaintiffs in those actions not to name him as a defendant.
Under Rule 1.2 of the Rules of Professional Conduct for this court, Sutton, as the client, determines the scope of his representation by an attorney, and Horan, as the attorney, must abide by Sutton's decision. Sutton has clearly stated in his affidavit that his representation by Horan was limited to the SEC investigation, which Sutton distinguishes from the instant action. It appears to this court that Longman, mindful of his ethical obligations, did all that would be expected under the circumstances of this case. He was entitled to act on Sutton's insistence that Horan did not represent him in this litigation. Accordingly, the anti-contact rule did not preclude Longman from contacting Sutton, and their discussions were ethically permissible.
Even if the anti-contact rule did apply, those who are objecting to Longman's conduct do not appear to have standing to do so. The anti-contact rule is meant to, "(1) prevent unprincipled attorneys from circumventing opposing counsel to obtain careless statements from adverse parties, (2) protect the integrity of the attorney-client relationship, (3) prevent the inadvertent disclosure of privileged information, and (4) facilitate settlement by channeling disputes through lawyers familiar with the negotiation process." Guillen v. Chicago, 956 F. Supp. 1416, 1427 (N.D. Ill. 1997). In other words, a violation of the anti-contact rule implicates the interests of the client or, at most, the interests of the client and his attorney. In this case, the client, Sutton, does not object to the allegedly unethical conduct, which has apparently worked to his benefit. Although Horan objects, Sutton claims that Horan was not, and is not, his attorney with respect to this action, and Horan has not filed an appearance. Although defendants object, the anti-contact rule was not fashioned to protect third-parties from potentially harmful evidence. Ahern v. Board of Education, 1995 U.S. Dist. LEXIS 16982, 1995 WL 680476, at *2 (N.D. Ill. Nov. 14, 1995) ("Although a former employee may certainly damage a corporation by divulging facts which ultimately give rise to liability, the possibility of that occurrence simply does not implicate the objectives of Rule 4.2"). Accordingly, plaintiff may use the information obtained from Sutton as the basis for the additional allegations in the second amended complaint.
Plaintiff's motion for leave to file a second amended complaint is granted. Defendants' motion to dismiss the amended complaint is denied as moot.
ENTER: December 11, 1997
Robert W. Gettleman
United States District Judge