Seyfarth Synopsis: The ABA’s “anti-contact” rule prohibits attorneys from communicating with represented parties concerning the subject matter of the case. In Moore, et al., v. Club Exploria, LLC, No. 19-CV-2504, 2021 WL 260227 (N.D. Ill. Jan. 26, 2021), the court sanctioned defense counsel for calling plaintiff’ s cell number as part of investigating whether the number was associated with another individual in defense of plaintiff’s claim that the Defendant caused telemarketing calls to be made to his phone without consent in alleged violation of the Telephone Consumer Protection Act. (“TCPA”). While defense counsel dodged most of the sanctions that plaintiff sought, the Court ordered defense counsel to pay the attorneys’ fees of plaintiff’s counsel associated with bringing the motion for sanctions.

This case is a valuable reminder of the ethical boundaries surrounding contacting represented parties in general and in class actions in particular – even in the absence of intentional bad faith conduct. When in doubt whether conduct amounts to an ethical violation, the rules require a conservative, rather than aggressive approach.

Background

In Moore, et al., v. Club Exploria, LLC, No. 19-CV-2504, 2021 WL 260227 (N.D. Ill. Jan. 26, 2021), plaintiff George Moore alleged in the putative class action that the Defendant caused telemarketing calls to be made to his phone without consent, in violation of the TCPA. After its initial investigation, the Defendant believed that a vendor had consent from someone named Donald Jorgensen to make calls to the phone number at issue, and its investigation later revealed Jorgensen was recently associated with the number.

As a result, defense counsel called Moore’s alleged phone number to test the research indicating that Donald Jorgensen, and not Moore, would answer the call. Moore answered the call and defense counsel asked to speak to “Don” at which point Moore indicated there was no one named “Don,” and asked who was calling and if “Don” had recently provided him with his number. Defense counsel identified himself and responded affirmatively. Moore, then identified himself as George Moore and asked which company defense counsel was with, and he responded that he was not with any company and was just “an individual.” The call concluded shortly thereafter.

Moore then informed his counsel of the phone call and later filed a motion for sanctions asserting that the phone call violated ABA Model Rule 4.2, the so-called “anti-contact” rule, and requested that the Court: (1) disqualify defense counsel; and (2) order defense counsel to produce “all of its work product concerning Don Jorgensen’s alleged use or ownership of the phone number at issue.” Id. at 3.

The Decision

The Court concluded that defense counsel violated the ABA’s “anti-contact” rule. “While his phone call with Moore was brief,” the Court observed, defense counsel “purposefully called a number that was repeatedly disclosed in this litigation as Moore’s phone number, without the consent of Moore’s counsel.” Id. While defense counsel may not have had actual knowledge prior to the call that he calling Moore, the Court opined that he nevertheless “knew, prior to initiating the call, that there was a significant risk that Moore would answer a call placed to the subject phone number.” Id. at 8. The Court thus concluded that defense counsel should have proceeded with “caution” rather than the “aggressive approach that results in an ethical violation.” Id. at 16. Ultimately, the Court concluded that the conduct of defense counsel violated ABA Model Rule. 4.2.

Although the Court found that the call violated the ethics rule, it concluded that disqualification and production of work product were “too severe of remedies, given the lack of prejudice, the quickness of the phone call, and the absence of any intentional bad faith conduct.” Id. at 23. Instead, the Court held that the attorneys fees’ and costs award “strikes the appropriate balance and is proportional” to defense counsel’s conduct. Id.

Implication For Employers

This decision in Moore is a reminder to proceed with caution when conducting an investigation that might implicate contact with represented parties. This particularly true in employment cases where represented parties may be presently employed by a defendant and inadvertently contacted. Employers should exhaust all other avenues of discovery before considering to initiate contact with a potentially represented party and even then should proceed conservatively.