United States District Court, N.D. Illinois, Eastern Division
[Copyrighted Material Omitted]
For Namita Goswami, Plaintiff: Stuart David Gordon, LEAD ATTORNEY, Carrie Alice Herschman, Laura Elizabeth Fahey, Richard M. Karr, Gordon & Karr LLP, Chicago, IL.
For DePaul University, Peg Birmingham, Elizabeth Rottenberg, Defendants: Kerryann Marie Haase, LEAD ATTORNEY, Katherine Lee Goyert, Michael Best & Friedrich LLP, Chicago, IL; Amy Schmidt Jones, Michael Best and Friedrich, Llp, Milwaukee, WI; Sarah E. Flotte, Michael Best & Friedrich LLP (Illinois), Chicago, IL.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE.
The plaintiff applied for tenure as a professor in the Philosophy Department at DePaul University and was turned down. Dr. Mary Jean Larrabee, an ardent supporter of Dr. Goswami, was one of several professors who voted to award her tenure. Not surprisingly, the plaintiff's attorneys viewed Dr. Larrabee as a favorable witness and wanted to speak with her outside the presence of DePaul's lawyers. And so, they did. The first of two, lengthy, ex-parte meetings was in December, 2012, the second in October, 2013, five days before she was to be deposed by DePaul's lawyers. It is DePaul's contention that by virtue of Dr. Larrabee's role in the tenure process, she was a " person" " represented" by DePaul's lawyers within the meaning of Rule 4.2 of the ABA Model Rules of Professional Conduct, and that the plaintiff's counsel's ex parte meetings with her were prohibited.
The cynosure of the motion for sanctions is the claim that the lawyers attempted to influence Dr. Larrabee's testimony at the three-hour meeting on October 25th by showing Dr. Larrabee numerous emails from colleagues belittling and insulting her. DePaul contends this was " an obvious ploy to stoke Dr. Larrabee's animosity towards the [Philosophy] Department majority on the eve of her deposition." ( Def. Br. 15). As we shall see, this is an argument that cannot be casually brushed aside by calling it " tactical" and " frivolous," ( Pl. Br. 1). Attempts to influence a witness's testimony can be a basis for the ultimate sanction of dismissal, Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001), or the lesser sanction of disqualification of counsel, or exclusion of evidence obtained from the compromised witness. But any sanction must have due regard for the doctrine of proportionality. See discussion infra at 15.
The threshold question is whether the two ex parte meetings with Dr. Larrabee violated Rule 4.2, which provides:
in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
ABA-AMRPC § 4.2. The Rule is often justified as an effort to prevent skilled counsel from taking advantage of a represented person through use of " artfully crafted questions." Totherow v. College, 2007 WL 5968762 (N.H.Super. 2007).
It is undisputed that plaintiff's counsel had neither consent from DePaul nor a court order allowing them to contact Dr. Larrabee. But that is beside the point if Dr. Larrabee was not a person " represented" by DePaul's lawyers. The text of Rule 4.2 does not answer that question. Comment 7 to the Rule does. It provides:
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
DePaul argues that Dr. Larrabee " supervises, directs or regularly consults with the organization's lawyer" and " has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization . . . ." ( Pl. Br. at 8)(Dkt. 100--1). DePaul does not cite any evidence that so much as suggests that Dr. Larrabee supervised, directed, or regularly consulted with DePaul's lawyers concerning tenure decisions. ( Pl. Br. at 8-9). Indeed, its analysis, while acknowledging the qualifying phrase, " regularly consults with the organization's lawyers on the matter," essentially ignores it. But the explanatory Comment makes a clear distinction between directing or supervising lawyers and directing or supervising employees. It is only the former that counts. Consequently, DePaul must show that Dr. Larrabee had authority to obligate it in tenure decisions or that her acts in connection with tenure decisions can be imputed to DePaul for purposes of civil liability.
At DePaul, tenured professors like Dr. Larrabee have a key role in decisions regarding tenure. DePaul's Faculty Handbook vests the faculty with " primary governance responsibility" for scholarly activities and faculty personnel matters. That includes the matter at issue in this case, DePaul's tenure process, which involves a multi-tiered, faculty-driven review. ( Def. Br., Ex. A, Ch. 3; Def.B r. at 9). As part of that process, tenured professors like Dr. Larrabee evaluate candidates for tenure in their home department or unit. Candidates are also evaluated by the College Personnel Committee -- comprised of faculty -- and the University Board on Promotion and Tenure -- also comprised of faculty and appointed by the faculty council. (Ex. A, § § 3.2.3, 3.6, et seq.).
Tenured faculty of a candidate's home unit are " expected to vote" on a candidate's application for tenure. ( Def.Br.
Ex. A, § 3.6.1). In DePaul's view, as expressed in the faculty handbook, the
peers in the home department are " assumed to represent the institution's best
expertise in the relevant academic field," and their assessment on scholarship
should not to be disturbed by higher levels of review absent a finding of
(Ex. A. § 3.2.3). DePaul's President makes the final decision on tenure, but can reject the recommendation of the UBPT " only in rare instances and for compelling reasons." (Ex. A. § § 3.6.1).
DePaul argues that Dr. Larrabee falls " squarely within . . . the third category of constituents" covered by Rule 4.2. As just one person of many voting on tenure decisions, and with the final say going to DePaul's President, albeit under the conditions specified in the handbook, it's uncertain whether Dr. Larrabee (along with her colleagues on the tenure committee) has the " authority to obligate" DePaul on tenure decisions within the meaning of Comment 7. Comment 7 simply uses the term without explanation or example.
On the other hand, it is quite easy to say that Dr. Larrabee's act -- her vote -- in connection with the tenure decision may be imputed to DePaul. It is just one vote, and Dr. Larrabee was in the minority, but she is a key part of the process that decides who gets tenure. More importantly, the focus of analysis for purposes of determining whether contact with a supposedly represented person is prohibited cannot be ex post, as Dr. Goswami's argument assumes it must. ( Pl.Br. 13). See discussion below and infra at 8.
DePaul relies on the handbook provisions discussed above, Kole v. Loyola University of Chicago, 1997 WL 47454, 1 (N.D.Ill. 1997) and Totherow, 2007 WL 5968762. In Kole, which involved a claim for discriminatory denial of tenure, Judge Leinenweber determined that tenured faculty members who voted on the tenure application were within the scope of Rule 4.2. The Comment to Rule 4.2, as it previously provided, prohibited communications with persons having a " managerial responsibility" on behalf of the organization as well as those whose acts or omissions in connection with the matter may be imputed to the organization or whose statements may constitute an admission on behalf of the organization. Judge Leinenweber found the complained of contacts with those faculty members who participated in the tenure process were improper because they were capable of making admissions that would be binding on the university. 1997 WL 47454, *3.
The plaintiff's brief makes much of the fact that there was no personal attorney-client relationship between Dr. Larrabee and DePaul's attorneys and that Dr. Larrabee " did not consider herself to be represented by DePaul's counsel." ( Pl.Br. 6). As Judge Easterbrook said in another context, " So What?...Who cares?...True, but irrelevant." Israel Travel Advis. Serv. v. Israel Iden. Tours, 61 F.3d 1250, 1259 (7th Cir. 1995). The attorney-client privilege in an organizational setting is the organization's, not the employee's, and it is inconsequential that the attorney does not ...