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Keywords

plaintiffdefendantlawyermotiondiscrimination

plaintiffattorneylawyerdiscrimination

Related Cases

Orlowski v. Dominick’s Finer Foods, Inc., 937 F.Supp. 723

Facts

The plaintiffs, women who worked at Dominick's, alleged various forms of sex discrimination, including lack of promotional opportunities and being placed in predominantly female positions. After the court ordered Dominick's to provide employee data, plaintiffs' counsel inadvertently contacted some current managers, leading Dominick's to file a motion for a protective order. The court had to determine the applicability of the rule against ex parte communications and whether the plaintiffs could amend their complaint to add new plaintiffs.

As a result of this letter, many women contacted Plaintiffs' counsel, indicating that they were subjected to the described acts of discrimination.

Issue

The main legal issues were whether former employees were covered by the rule against ex parte contact and whether the plaintiffs could amend their complaint to add additional plaintiffs.

Dominick's argues that Plaintiffs' counsel should be barred from communicating with current and former managers, co-managers, assistant managers, department managers, and supervisors, without the presence of its counsel, because all are represented by Dominick's and contact is, therefore, barred by Rule 4.2.

Rule

The court applied Rule 4.2 of the Rules of Professional Conduct, which prohibits lawyers from communicating with parties represented by another lawyer without consent, and determined the definitions of 'managerial' employees under this rule.

Rule 4.2 of the Rules of Professional Conduct for the Northern District of Illinois states: During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.

Analysis

The court found that former employees, including former managers, were not encompassed by Rule 4.2, allowing plaintiffs' counsel to communicate with them. It also determined that current managers and co-managers were 'managerial' employees under the rule, while lower-level managers were not. The court concluded that the plaintiffs could amend their complaint to add three additional plaintiffs, as the amendment did not unduly prejudice the defendant.

This Court finds that former employees, including former managers, are not encompassed by Rule 4.2, and may freely engage in communications with Plaintiffs' counsel.

Conclusion

The court granted in part and denied in part the employer's motion for a protective order and granted the employees' motion to amend the complaint to add three new plaintiffs.

This Court finds that Plaintiffs' attorneys neither breached their ethical obligations, nor violated Rule 4.2.

Who won?

The plaintiffs prevailed in their motion to amend the complaint, as the court found that the addition of new plaintiffs did not unduly prejudice the defendant.

This Court finds that the same lower-level managers, as discussed above, likewise do not fall within the second category of the Comment: 'employees whose acts in the matter can be imputed to the organization….'

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