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Keywords

litigationlawyerappealharassment
litigationlawyerappealmotionharassmentappellantwrit of mandamus

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Shoney’s, Inc. v. Lewis, 875 S.W.2d 514

Facts

Roxanne Herr filed a sexual harassment complaint against Shoney's, Inc. and its employee, Mohammed Boka. Prior to the litigation, Herr's counsel contacted Shoney's Senior Vice-President of Human Resources and was informed that Shoney's would be represented by counsel. Despite this, Herr's counsel obtained sworn statements from two of Shoney's senior managerial employees without notifying or obtaining consent from Shoney's counsel. Shoney's subsequently moved to disqualify Herr's counsel, claiming a violation of the rule against ex parte communications.

On September 21, 1992, Herr's counsel contacted Lee's Senior Vice–President of Human Resources concerning the complaint of sexual harassment. In this conversation, Herr's counsel was informed that Lee's would be represented by counsel and was given the name of such counsel.

Issue

Did Herr's counsel violate the court rule prohibiting communication with a person represented by counsel, and what is the appropriate remedy for such a violation?

Lee's sought a Writ of Mandamus in the Court of Appeals to require Judge Lewis to disqualify Herr's counsel for violating the rule against ex parte contacts with parties known to be represented by counsel, and to suppress the written statements obtained.

Rule

SCR 3.130, Rule 4.2 prohibits a lawyer from communicating about the subject of representation with a party known to be represented by another lawyer unless consent is obtained.

SCR 3.130, Rule 4.2 SCR 3.130, Rule 4.2 Communication with Person Represented by Counsel, provides: In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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.

Analysis

The court found that Herr's counsel knowingly communicated with Shoney's managerial employees, who were represented parties, without the consent of Shoney's counsel. The court emphasized that the rule applies to communications both before and after formal proceedings have begun, and that the statements obtained were directly related to the subject of the representation. The court concluded that the actions of Herr's counsel constituted a clear violation of the rule.

The court found that Herr's counsel knowingly communicated with Shoney's managerial employees, who were represented parties, without the consent of Shoney's counsel.

Conclusion

The Supreme Court reversed the decision of the Court of Appeals, disqualifying Herr's counsel and ordering the suppression of the statements obtained from Shoney's employees.

For the foregoing reasons, we reverse the Court of Appeals and remand this cause to the Warren Circuit Court with directions to enter an order disqualifying Dale Golden and the firm of Rudloff, Golden & Evans from further participation in this litigation.

Who won?

Shoney's, Inc. prevailed in the case because the court found that Herr's counsel violated the ethical rule regarding communication with represented parties.

The motion of appellants, Shoney's, Inc. and Shoney's, Inc. d/b/a Lee's Famous Recipe Chicken, for a Writ of Mandamus was denied, without opinion, in an original action in the Kentucky Court of Appeals.

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