• Judge Prohibits Defense Firm's Representation of All of Defendant's Former Employees
  • December 17, 2008
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Rivera v. Lutheran Medical Center, __N.Y.S. 2d __, 2008 WL 4635476 (2008)

    Brief Summary
    The court held that counsel for the corporate defendant would not be permitted to represent four current or former employees of the corporate defendant who were merely fact witnesses because doing so would prevent plaintiff from obtaining informal discovery.

    Complete Summary
    Rivera sued defendants Lutheran Medical Center and one of its vice-presidents (collectively, “Lutheran Medical”) for retaliatory and discriminatory discharge. The law firm of Morgan Lewis & Bockius, LLP (“Morgan Lewis”) represented Lutheran Medical.

    Thereafter, Morgan Lewis contacted four current or former employees, who were merely fact witnesses and who had no personal risk or exposure in the case, and offered free representation to them. All four accepted this offer.

    Rivera then sought to disqualify Morgan Lewis from representing the four on the ground that the actions of Lutheran Medical and Morgan Lewis denied Rivera the potential benefits of informal discovery. Rivera asserted in part that there was a conflict of interest between Morgan Lewis’ various clients under New York DR 5-105, but the court rejected this argument on the ground that no conflict had been shown. Rivera also sought disqualification under New York DR 2-103(A)(1), a part of New York’s advertising/solicitation rules. The court cited to and quoted this rule but plainly believed that the vice here was not in the law firm’s procurement of additional clients for monetary gain but rather in the potential for tactical advantage that Lutheran Medical would gain by foreclosing Rivera’s informal access to these witnesses. In so holding, the court relied substantially upon U.S. v. Occidental Chemical Corp., 606 F Supp1470, 1478 (WDNY 1985) in which the court had stated that it was “unwilling to provide unnecessary encouragement for a method of obtaining legal work which results in one side gaining even a minor tactical advantage.”

    The court ordered Morgan Lewis to cease its representation of the fact witness employees.

    Significance of Opinion
    Since defense counsel often represent a defendant’s current or former employees at deposition, this decision will come as a surprise to many lawyers. It also remains to be seen whether this holding is reversed on appeal and is followed in other jurisdictions. Nonetheless, the court has raised an interesting question about the extent to which the prohibition in New York DR 7-104 against communications with represented parties (the equivalent to ABA Model Rule 4.2) can be used to prevent informal discovery through the expedient of an express undertaking to represent “mere” fact witnesses given that the “mere” representation of the entity itself does not place those fact witnesses off limits.