Opinion
03-CV-10384-MEL.
March 30, 2005
MEMORANDUM AND ORDER
This is an action brought pursuant to the Jones Act, 46 U.S.C. § 688. Defendant moves to dismiss the complaint, or in the alternative for evidentiary sanctions, on the grounds that plaintiff's counsel engaged in ex parte contact with defendant's principal and an employee of defendant, in violation of Massachusetts' attorney ethics rules.
I.
On June 1, 2001, the plaintiff Joseph Groppo ("Groppo") suffered an injury while employed as a commercial fisherman abroad the vessel F/V CAROL ANN. Groppo alleges that he was injured when another crewmember negligently stabbed him in the arm while the two were cutting fish at the vessel's cutting table. Groppo brought suit against the vessel's owner, Zappa Inc., for negligence under the Jones Act, 46 U.S.C. § 688, unseaworthiness under the General Maritime Law, and for seaman's maintenance and cure.
Salvatore Zappa ("Mr. Zappa") was the president of the closed corporation Zappa Inc., and Captain of the F/V CAROL ANN. At Mr. Zappa's deposition it was acknowledged that counsel for defendant Zappa Inc. was also representing Mr. Zappa personally. However, sometime after the scheduled deposition, plaintiff's counsel met with Mr. Zappa again, this time without the knowledge or consent of defense counsel. During that meeting, Mr. Zappa signed an affidavit which had been prepared by plaintiff's counsel's office and was read aloud to him.
Prior to Mr. Zappa's deposition and the additional meeting, plaintiff's counsel met with and obtained a written affidavit from Salvatore Napoli ("Napoli"), an employee of Zappa Inc. and the crewmember alleged to have inflicted the injury at issue. Plaintiff's counsel's meeting with Mr. Napoli was also without the knowledge or consent of defense counsel.
Upon learning of the two meetings, defense counsel filed the motion at issue, contending that the contact between plaintiff's counsel and Mr. Zappa and Mr. Napoli, without defense counsel's knowledge or consent, constituted ex parte communication in violation of S.J.C.R. 3:07, Mass. R. Prof. Conduct 4.2 ("Rule 4.2").
Plaintiff's counsel defended his conduct by arguing that while Rule 4.2 may prohibit a lawyer from communicating with individuals represented by opposing counsel, in the instant case, Rule 4.2 does not apply. Plaintiff's counsel contended that Section 10 of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 60, which is incorporated by reference in the Jones Act and thus relevant to this case, preempts state ethical rules and thus the ex parte contact at issue was legally authorized.
II.
The Massachusetts Rules of Professional Conduct provides in Rule 4.2:
"Communication with Person Represented by Counsel.
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 by law to do so." S.J.C.R. 3:07, Mass. R. Prof. Conduct 4.2 ("Rule 4.2").
The Massachusetts Supreme Judicial Court has ruled that in the context of organizational entities (such as defendant Zappa Inc. here), "only certain kinds of current employees properly fall within the prohibitions of [Rule 4.2]: those agents or employees (1) who exercise managerial responsibility in the matter, (2) who are alleged to have committed the wrongful acts at issue in the litigation, or (3) who have authority on behalf of the organization to make decisions about the course of the litigation." Clark v. Beverly Health and Rehab. Servs. Inc., 440 Mass. 270, 274-275 (2003) (citing Messing, Rudavsky Weliky, P.C. v. President Fellows of Harvard College, 436 Mass. 347 (2002)).
In the instant case, the two individuals with whom plaintiff's counsel had ex parte contact, fall within the ambit of Rule 4.2. Specifically, Mr. Zappa falls within the above category 1 as both the Captain of the vessel and the principal of the defendant corporation. Mr. Napoli falls within category 2 as the individual alleged to have cause plaintiff's injury. Accordingly, plaintiff's counsel's ex parte communication with Mr. Zappa and Mr. Napoli, without the consent of defendant's counsel, was in violation of Rule 4.2.
However, it is argued, as it is here, that the ex parte contact that is prohibited under professional conduct rules, is in fact permitted in the context of railroad and Jones Act cases because these actions implicate the FELA. It is contended that Section 10 of the FELA permits ex parte contact with parties represented by opposing counsel because it provides:
"Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from voluntarily furnishing information to a person in interest as to facts incident to the injury or death of any employee, shall be void. . . ." 45 U.S.C. § 60 ("FELA § 60").
The Jones Act has "made applicable to seamen injured in the course of their employment the provisions of the [FELA], 45 U.S.C. §§ 51-60, which gives to railroad employees the right of recovery for injuries resulting from the negligence of their employer, its agents or employees." O'Donnell v. Great lakes Dredge Dock Co., 318 U.S. 36, 38-39 (1943); see also 46 U.S.C. § 688 ("Any seaman who shall suffer personal injury in the course of his employment may, . . ., maintain an action for damages at law, . . ., and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. . . .").
There is a sharp division among district courts on the question of whether FELA § 60 overrides ethical rules prohibiting a plaintiff's lawyer from contacting employees of a defendant, in a railroad or Jones Act action, without the awareness of defense counsel.
For cases interpreting FELA § 60 as superseding or preempting Rule 4.2: see Pratt v. Nat'l R.R. Passenger Corp., 54 F. Supp.2d 78 (D. Mass. 1999); Blasena v. Consol. Rail Corp., 898 F. Supp. 282 (D.N.J. 1995); United Transp. Union v. Metro-North Commuter R.R. Co., 1995 WL 634906 (S.D.N.Y. Oct. 30, 1995).
For cases apply Rule 4.2 over FELA § 60: see Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001) (reviewing the Jones Act); Woodard v. Nabors Offshore Corp., 2001 WL 13339 (E.D.La Jan. 4, 2001) (reviewing the Jones Act); Belote v. Maritrans Operating Partners L.P., 1998 WL 136523 (E.D. Pa. Mar. 20, 1998); Tucker v. Norfolk W. Ry. Co., 849 F. Supp. 1096 (E.D. Va. 1994).
The question has been addressed in this district in the context of a railroad case. In Pratt v. Nat'l R.R. Passenger Corp., 54 F. Supp. 2d 78 (D. Mass. 1999), the plaintiff brought an action for personal injury against a railroad pursuant to the FELA. During discovery, plaintiff's counsel attempted through correspondence with the defendant railroad attorneys, to schedule a deposition of an employee of the railroad who had written a report concerning facts related to the cause of plaintiff's injury. When the railroad repeatedly refused to produce the employee in question, plaintiff's counsel took matters into his own hands and conducted an ex parte deposition of the employee. The railroad then moved to exclude the deposition on the grounds that it violated the ethical requirements of Rule 4.2. In opposition, plaintiff's counsel argued that in the FELA context, his conduct was authorized by Congress pursuant to FELA § 60. The court found, after reviewing the history of both Rule 4.2 and FELA § 60, that the purpose behind FELA § 60 was "to equalize the influence of railroads and employees in the conduct of litigation." Pratt, 54 F. Supp. 2d at 82. The court then held that "if [FELA § 60] is not the type of legal authorization for ex parte communications anticipate by Rule 4.2, it is difficult to imagine what is." Id.
The decision in Pratt supports the proposition that, here, plaintiff's counsel's conduct would be excused by the FELA and not violative of the ethical requirements of Rule 4.2. Yet, whilePratt makes an impressive case for such an interpretation of the effect of the FELA provision, I find the contrary conclusion in Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001), to be more persuasive. Weibrecht, a Seventh Circuit decision, appears to be the first and only Court of Appeals ruling on this issue.
In Weibrecht, the representative of a deckhand who drowned while helping secure a barge to a tug, sued the decedent's employer — the owner of the vessel — under the Jones Act. Two days before the scheduled deposition of the tug's pilot, the plaintiff, at the suggestion of his attorney, called the pilot and discussed the plaintiff's theory that at least two deckhands should have been working when the accident occurred. Plaintiff also suggested that the pilot contact his attorney. The next day, the plaintiff's attorney called the pilot and left a message asking him to call back. The attorney said the purpose of the call was to make sure the pilot knew that the time for his deposition had been changed. The defendant moved for sanctions claiming that the two calls violated local ethical Rule 4.2. Plaintiff's counsel contended that the contacts were permissible under FELA § 60 because § 60 superseded Rule 4.2. Plaintiff's counsel argued that because Rule 4.2 might prevent maritime employees from voluntarily providing relevant information about an accident giving rise to a Jones Act action, it is exactly the kind of "rule, regulation, or device" that FELA § 60 declares void. Weibrecht, 241 F.3d at 879. However, the Court of Appeals found no "irreconcilable conflict" between FELA § 60 and Rule 4.2, and held that FELA § 60 did not supersede Rule 4.2. Id. at 880.
The Seventh Circuit found that FELA § 60 prohibits rules that prevent railroad or maritime employees from furnishing information about a worker's injury or death. Yet "nothing in § 60 necessarily requires", the court said, "that a lawyer be allowed to gather information outside the presence of an employee's attorney." Id. at 880. The court noted that if an employee is represented, Rule 4.2 requires going through the employee's lawyer (who is most likely the company's lawyer) to schedule a deposition or otherwise obtain information. In the court's view, such a requirement did not amount to a rule or device that prevents an employee from furnishing information to a plaintiff's lawyer. Id.
Moreover, according to Weibrecht, if the word "prevent" in FELA § 60 were read to include the "marginal deterrence" imposed by Rule 4.2, then it "would effectively be finding that the FELA and the Jones Act were intended to displace generally applicable ethical rules." Id. The court saw no evidence of such an intent in the language or legislative history of either statute. The court noted that when FELA § 60 was enacted, "the attorney ethical rule against contacting represented parties was an ingrained part of the legal system", and "[h]ad Congress wanted § 60 to override such a long-standing rule of legal ethics, it easily could have said explicitly that it was doing so." Id.
The court also rejected the alternative argument that FELA § 60 satisfies Rule 4.2's exception for contacts with represented parties when "otherwise . . . authorized by law." The court stated that "FELA § 60, by its terms, does not authorize anything." Id. "Rather, [FELA] § 60 is a prohibition on certain conduct by railroads and maritime employers . . . from enacting rules or regulations that prevent employees from disclosing information to FELA or Jones Act plaintiffs." Id. at 881. The court observed that § 60's reference to a "rule, regulation, or device" "appears to refer only to internal rules and regulations promulgated by employers." Id. The court found that even if FELA § 60 were read more broadly, there is "nothing to suggest that it was designed to authorize conduct that would otherwise violate general ethical rules." Id.
III.
I find the analysis of the Seventh Circuit in Weibrecht to be compelling. Without an expression of Congressional intent to the contrary, it would be unsound to hold that a provision of a federal statute preempts a well-established state rule, especially in light of the fact that the regulation of the ethical conduct of lawyers is inherently within the purview of state courts, and that the provisions of Rule 4.2 are generally applicable in most, if not all, states. See e.g. Collins v. Godfrey, 324 Mass. 574 (1949) ("the judicial department has the ultimate power of general control over the practice of law by its own officers").Accordingly, I conclude that FELA § 60 does not take precedence over Rule 4.2. Because in the instant case the two individuals with whom plaintiff's counsel had ex parte contact fall within the ambit of Rule 4.2, it follows that plaintiff's counsel's conduct violated the Rules of Professional Conduct.
However, in light of the Pratt decision, which to date appears to be the only decision in the First Circuit on the issue, here, plaintiff's counsel had a good faith basis to believe that ex parte contact in a Jones Act action is permissible. Accordingly, I decline to impose any sanction upon plaintiff's counsel.
* * * * *
Accordingly, the defendant's motion is GRANTED as conditioned above.
It is so ordered.