Don’t Talk To The Flight Attendants (If You Are Suing The Airline)
Ethics Profs attention here. This is a good teaching tool.
The United States District Court for the Eastern District of Pennsylvania concluded in a motion to disqualify counsel that an attorney admitted pro hac vice violated Rule 4.2 by talking to two flight attendants on a US Airways flight.
Because the underlying case had settled, the only issue before the court was possible sanctions.
The attorney represented a plaintiff suing the airline for injuries sustained as a result of turbulence in a flight from Cancun to Philadelphia
Plaintiff filed an Amended Complaint on October 25, 2016, for injuries sustained during US Airways Flight 815 travelling from Cancun, Mexico, to Philadelphia, Pennsylvania, when the flight encountered unexpected turbulence, asserting that US Airways is liable under the Montreal Convention.
During the case
On July 28, 2017, US Airways filed the pending Motion for Sanctions, alleging that plaintiff’s attorney, Alisa Brodkowitz, engaged in ex parte communications with two US Airways flight attendants in violation of Pennsylvania Rule of Professional Conduct 4.2, which prohibits a lawyer from communicating “about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in the matter” without prior authorization.
The court analyses Rule 4.2 in the employee context
According to Brodkowitz, because the complaint does not allege that the flight attendants were negligent or that “the acts or omissions of the flight attendants . . . might otherwise be the basis for imposing liability on US Airways,” the flight attendants were not represented parties. Pl.’s Memo in Opp. to Def.’s Mot. to Sanction Pl.’s Counsel at 13. Instead, she argues, the flight attendants were contacted as witnesses, as opposed to negligent actors. Id. In a discovery request dated March 22, 2017, however, plaintiff requested information related to US Airways’ employment and personnel files on the grounds that “[t]he flight and cabin’s [sic] crew’s training is at issue, with regard to transport and reporting of the injury causing event following government and or US Airways’ own policies and procedures.” Mot. for Sanctions, Ex. G…
The Court notes, however, that flight attendants are generally responsible for the safety of passengers in their custody. Statements made by the flight attendants regarding the flight and their acts and omissions during the flight that caused plaintiff’s injuries could certainly subject US Airways to liability. Viewing Brodkowitz’s communications in light of the circumstances of the case, the Court concludes that the flight attendants were represented parties because they are persons “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” Pa R.P.C. 4.2, cmt. 7. Thus, Brodkowitz’s communications with the flight attendants violated Rule 4.2.
The court rejected a Rule 4.1 allegation for false statements to the flight attendants as unproven on the submissions .
The court denied sanctions
US Airways failed to provide any evidence of prejudice resulting from Brodkowitz’s communications with the two flight attendants. US Airways has stipulated to liability; evidence presented will thus be limited to damages. See Stipulation Regarding Defs.’ Election Not to Contest Liability. Pursuant to the stipulation, “[n]o evidence of . . . [t]he acts or omissions of the pilots or flight attendants of Flight 815 or any other employee or agent of US Airways, Inc.” shall be introduced or mentioned at trial. Id. at 2. Thus plaintiff is already precluded from using information related to the acts or omissions of the flight attendants—the very basis upon which the Court holds that the flight attendants are represented parties under Rule 4.2—against US Airways. US Airways has therefore failed to demonstrate that sanctions are necessary to avoid prejudice…
Under the circumstances, revocation of Brodkowitz’s pro hac vice admission is not an appropriate sanction. However, the Court concludes that admonishment for violating Rule 4.2 is warranted. This Memorandum constitutes such admonishment.
(Mike Frisch)